((Questions referred for a preliminary ruling under Article 35 TEU – Schengen Acquis – Convention implementing the Schengen Agreement – Interpretation of Article 54 – Ne bis in idem principle – Scope – Discontinuance of criminal proceedings as a consequence of a settlement procedure))

1. The Schengen

(a) the Agreement, signed in Schengen, Luxembourg, on 14 June 1985 by the three States comprising the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the gradual abolition of checks at their common borders (hereinafter the Schengen Agreement); and

(b) the Convention implementing that Agreement, signed on 19 June 1990 by the same contracting parties

2. These questions, referred for a preliminary ruling under Article 35 TEU,

3. The doubts entertained by the Oberlandesgericht Köln and the Rechtbank van Eerste Aanleg te Veurne relate to Article 54. They wish to know whether the

II ─ The applicable European legislation

4. Article 1 of the Protocol integrating the Schengen

5. As stated in the preamble to the Protocol, the Schengen

6. The second paragraph of Article 2(1) of the Protocol provides that, from the date of entry into force of the Treaty of Amsterdam,the Schengen

7. Taking the second paragraph of Article 2(1) of the Protocol as a basis, the Council adopted on 20 May 1999 Decisions 1999/435/EC and1999/436/EC defining the Schengen Agreement and determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the Schengen

8. It is clear from Article 2 of, and Annex A to, the second of those decisions that the legal basis for Articles 54 to 58 of the Convention is Articles 34 and 31 of the Treaty on European Union, which form part of Title VI, headed Provisions on police and judicial cooperation in criminal matters.

9. The abovementioned articles of the Convention make up Chapter 3, which is entitled Application of the

10. Article 54 provides: A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.

11. Under Article 55:

1. A Contracting Party may, when ratifying, accepting or approving this Convention, declare that it is not bound by Article 54 in one or more of the following cases:

(a) where the acts to which the foreign judgment relates took place in whole or in part in its own territory; in the latter case, however, this exception shall not apply if the acts took place in part in the territory of the Contracting Party where the judgment was delivered;

(b) where the acts to which the foreign judgment relates constitute an offence against national security or other equally essential interests of that Contracting Party;

(c) where the acts to which the foreign judgment relates were committed by officials of that Contracting Party in violation of the duties of their office.

2. A Contracting Party which has made a declaration regarding the exception referred to in paragraph 1(b) shall specify the categories of offences to which this exception may apply.

3. A Contracting Party may at any time withdraw a declaration relating to one or more of the exceptions referred to in paragraph 1.

4. The exceptions which were the subject of a declaration under paragraph 1 shall not apply where the Contracting Party concerned has, in connection with the same acts, requested the other Contracting Party to bring the prosecution or has granted extradition of the person concerned.

12. Article 56 states as follows: If a further prosecution is brought in a Contracting Party against a person whose trial, in respect of the same acts, has been finally disposed of in another Contracting Party, any period of deprivation of liberty served in the latter Contracting Party arising from those acts shall be deducted from any penalty imposed. To the extent permitted by national law, penalties not involving deprivation of liberty shall also be taken into account.

13. Article 57 establishes:

1. Where a Contracting Party charges a person with an offence and the competent authorities of that Contracting Party have reason to believe that the charge relates to the same acts as those in respect of which the person's trial has been finally disposed of in another Contracting Party, those authorities shall, if they deem it necessary, request the relevant information from the competent authorities of the Contracting Party in whose territory judgment has already been delivered.

2. The information requested shall be provided as soon as possible and shall be taken into consideration as regards further action to be taken in the proceedings underway.

3. Each Contracting Party shall, when ratifying, accepting or approving this Convention, nominate the authorities authorised to request and receive the information provided for in this Article.

14. Finally, Article 58 provides:The above provisions shall not preclude the application of broader national provisions on the

III ─ The facts,main proceedings and questions referred for a preliminary ruling

1. Case C-187/01

15. Mr Gözütok is a Turkish national who has lived for some time in the Netherlandswhere he ran a coffee-shop in the town of Heerlen without the mandatory administrative authorisation. On 12 January and 11 February 1996 the Netherlands police searched the premises and seized certain quantities of hashish and marijuana.

16. The criminal investigations instigated following the above events ended on 28 May and 18 June 1996, after Mr Gözütok accepted the offer of settlement made by the Netherlands Public Prosecutor's Office and paid the sums of three thousand Dutch guilders (NLG) and of seven hundred and fifty (NLG).

17. On 31 January 1996 a German bank, at which Mr Gözütok held an account, had alerted the criminal prosecution authorities in the Federal Republic of Germany to the fact that he was handling large sums of money.

18. On 1 July 1996 the Aachen public prosecutor brought charges against Mr Gözütok accusing him of dealing, in the Netherlands, in significant quantities of narcotics on at least two occasions during the period from 12 January to 11 February 1996.

19. On 13 January 1997 the Amtsgericht (District Court), Aachen, convicted the defendant of dealing in significant quantities of narcotics and sentenced him to a period of one year and five months' imprisonment, suspended on probation.

20. Mr Gözütok and the Public Prosecutor appealed against the judgment. By decision of 27 August 1997, the Landgericht (Regional Court), Aachen, discontinued proceedings on the ground that, under Article 54 of the Convention, the decision taken by the Netherlands authorities to discontinue the case had the force of

21. The above decision was contested by the Public Prosecutor's Office before the Oberlandesgericht Köln (Higher Regional Court, Cologne), on the ground

22. The Oberlandesgericht Köln believes that a decision on the appeal hinges on the scope accorded to the terms of that provision of the Convention, and therefore refers the following questions to the Court of Justice: Is there a bar to prosecution in the Federal Republic of Germany under Article 54 of the Schengen Implementing Convention if, under Netherlands law, a prosecution on the same facts is barred in the Netherlands?In particular, is there a bar to prosecution where a decision by the Public Prosecutor's Office to discontinue proceedings, after the fulfilment of the conditions imposed (Netherlands

2. Case C-385/01

23. Mr Brügge, a German national, caused Mrs Leliaert bodily injury which rendered her unfit for work.

24. The Bonn Public Prosecutor conducted an investigation in respect of those facts against Mr Brügge, in which he offered him an amicable settlement under which the case would not be proceeded with following payment of DEM 1 000.

25. Mr Brügge has been charged in respect of the same facts before the Rechtbank van Eerste Aanleg te Veurne, where the victim has entered an appearance claiming damages for the mental distress caused to her by the assault.

26. That court considers that, in order to give a ruling in the case, it needs to know the scope of Article 54 of the Convention and refers the following question to the Court of Justice:Under Article 54 of the Schengen Agreement of 19 June 1990, is the Belgian Public Prosecutor's Office permitted to require a German national to appear before a Belgian criminal court and be tried on the same facts as those in respect of which the German Public Prosecutor's Office made him an offer, by way of a settlement, to discontinue the case after payment of a certain sum, which was paid by the accused?

IV ─ Procedure before the Court of Justice

27. In Case C-187/01 written observations have been presented, within the period laid down for the purpose by Article 20 of the EC Statute of the Court of Justice, by Mr Gözütok, the German, Netherlands and French Governments, and by the Commission. In the other case, as well as the first two governments mentioned above and the Commission, the Belgian Government took part in the written stage.

28. On 9 July 2002 a joint hearing was held, at which the representatives of those who had presented written observations and the representative of the Italian Government submitted oral argument.

V ─ A note on the jurisdiction of the Court of Justice under Article 35 TEU

29. The Treaty of Amsterdam has extended the jurisdiction of the Court of Justice to give preliminary rulings to the third pillar (justice and home affairs) and opened the way for the Court, at the request of the national courts, to give rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of conventions adopted for police and judicial cooperation in criminal matters and on the validity and interpretation of the measures implementing them (Article 35(1) TEU).

30. Under the Protocol and Council Decisions 1999/435 and 1999/436, cited above,

31. A Member State which accepts that new jurisdiction of the Court of Justice may choose between granting the power to refer questions for a preliminary ruling either to any of its courts or tribunals or only to those courts or tribunals which give a final decision against which there is no further judicial remedy (Article 35(3)) TEU.

32. The Federal Republic of Germany has opted to confer the power to refer questions for a preliminary ruling to all courts and tribunals, but, in the case of those which give final decisions, the power becomes a duty.

33. When Belgium signed the Treaty of Amsterdam, it made a declaration accepting the jurisdiction of the Court of Justice and has given all its courts and tribunals power to refer questions for a preliminary ruling under Article 35 TEU.

34. Since the decisions of the Oberlandesgericht Köln in this sphere are not subject to appeal and the Rechtbank van Eerste Aanleg te Veurne is a Belgian court within the meaning of the aforementioned provision, the former had the obligation and the latter the option to apply to the Court of Justice after establishing that, in order to reach a decision in the case concerned, it was necessary to interpret Article 54 of the Convention.

35. On that premiss and since the questions referred for a preliminary ruling do not affect any of the matters referred to in Article 35(5) TEU,

VI ─ Analysis of the questions referred for a preliminary ruling

1. A few preliminary points

36. The purpose of the jurisdiction to give preliminary rulings conferred by Article 35(1) TEU is ─ as of all the powers of this kind conferred on the Court of Justice ─ that the Court shall interpret or, if appropriate, give its opinion on the validity of the provisions of European law which constitute its substantive scope. However, it certainly does not go as far as regulating the application of those rules to the case pending before a national court.

37. Therefore, it is not for the Court to express a view on the effect of Article 54 of the Convention on the criminal proceedings against Mr Gözütok or on the consequences which should ensue with regard to the discontinuance of the criminal action. It falls to the Court of Justice only to interpret the provision. Consequently, it cannot express a view on whether, once the criminal action has been extinguished in the Netherlands, that means that it is barred under the German legal system.

38. On those premisses, the Court of Justice must disregard the terms in which the Oberlandesgericht Köln formulates the first of its questions. In actual fact, if the overall meaning of the questions raised by the two national courts is considered, it may be said that the doubts they entertain are the following:

1. The first is whether the

2. If the reply to the above question is positive, the German court wonders whether it is necessary for the decision taken by the Public Prosecutor's Office to be approved by a court.

39. In order to clarify the above questions it is necessary to consider the scope of the aforementioned principle and, in particular, its significance in the context of Article 54 of the Convention, by ascertaining the objective and purpose of this provision of the agreement. It is also necessary to examine criminal procedures which are in the nature of a settlement and their effects, in relation to the wording of the provision which the Court of Justice is asked to interpret.

40. In carrying out that task it is necessary to bear in mind two facts which appear contradictory and yet are complementary, the two sides of a single phenomenon.

41. The first is that criminal law within the European Union is fragmented into as many different systems as there are Member States. The second is that, however different the national criminal justice systems are, the aim is to achieve closer and closer cooperation within the framework of the third pillar.

42. This dual finding has two consequences. One is that the reply must be sought disregarding the peculiarities of each system. Article 54 of the Convention uses terms whose scope differs in the various domestic legal systems, so it is necessary to avoid any interpretation which looks to the national legal orders. The law of the European Union, which is the common substratum formed by the objectives pursued by the Schengen

43. The second consequence is substantive. In the struggle against the forms of criminality which affect the whole of European society, it is for the States to keep them in check by means of national legislation. Each is responsible for internal law and order, but also, within the Union, for European law and order. Thus situations may arise which may be inconsistent with the

2. Article 54 of the Convention as a genuine expression of the ne bis in idem principle

44. Article 54 of the Convention is a legislative provision in a dynamic process of European integration through the development of a common area of freedom and justice. The gradual abolition of common border controls is a necessary step on the path to achieving that objective. However, the removal of administrative obstacles lifts the barriers for everybody, including those who take advantage of the reduction in security in order to expand their unlawful activities.

45. For that reason, the abolition of controls must be matched by increased cooperation between the States, particularly with regard to policing and security. Articles 54 to 58 of the Convention, which govern the application of the

46. Article 54 is the expression of that safeguard for persons who are subject to the exercise of the

47. The aforementioned provision is a genuine expression of the safeguard in question, which operates not only within the same legal system but also takes effect when the prosecution is repeated in different legal systems.

3. The bases of the ne bis in idem principle. Its importance in the case-law of the Court of Justice

48. This rule of law, in order to protect identical legal rights and in respect of the same unlawful conduct, prevents a person from being subject to more than one penalising procedure and, possibly, being punished repeatedly, in so far as that duplication of procedures and penalties involves the unacceptable repetition of the exercise of the

49. The principle rests on two pillars found in every legal system.One is legal certainty and the other is equity. When the offender is prosecuted and punished, he must know that, by paying the punishment, he has expiated his guilt and need not fear further sanction. If he is acquitted, he must have the certainty that he will not be prosecuted again in further proceedings.

50. In the event of a conviction, it should not be forgotten that every penalty has a dual purpose: to punish and to deter. It is designed to punish misconduct and to discourage the perpetrators, as well as other possible offenders, from legally culpable behaviour. It therefore has to be proportionate to those purposes, keeping an appropriate balance to provide retribution for the conduct which is being penalised and, at the same time, to serve as an example. The principle of equity, of which the proportionality rule is a tool, thus prevents penalties from overlapping.

51. The Court of Justice applied the

52. The Court of Justice has therefore had the opportunity to consider situations which have resulted in overlapping penalties. Indeed, the factual situations in which it is appropriate to apply the European Community system and the legal systems of the Member States are not exceptional. The field of competition provides a good example.

53. Consistently with that approach, the Court of Justice has allowed a cartel to be analysed from the point of view both of national and Community law and, what is more significant, for that dual examination to give rise to two penalties imposed on the same person on identical facts.

54. Does the previous statement mean that the same act may be judged and, if appropriate, punished twice if the

55. The Advocate General's statement cannot be taken out of context, a historical moment in which the spacial effect of criminal law, the expression of the sovereignty of the States, revolved around the principle of territoriality. Mr Mayras' opinion is the expression of that notion. However, a strict application of that territorialism is incompatible with many situations in which there are elements of extra-territoriality and in which the same act may have legal effects in different parts of the territory of the Union. The construction of a Europe without borders, with its corollary of the approximation of the various national legal systems, including the criminal systems, presupposes that the States involved will be guided by the same values. It is here, in the sphere of values, that the principle under consideration achieves its full significance.

56. The classic formulation of the

57. Currently, the Member States and the European Union itself are bound by the

58. It would be inherently unfair and contrary to the principles on which the construction of a United Europe rests if, in order to protect a certain legal principle, a person could be punished in several Member States for committing the same acts.

59. It is contrary to the very concept of justice to deny the effectiveness of foreign criminal judgments. That approach would both undermine the fight against criminality and the rights of the convicted person. Today, Advocate General Mayras' position would be untenable because it conflicts with the wording of Article 54 of the Convention, which reproduces Article 1 of the Brussels Convention of 25 May 1967 on the implementation of the

60. The above considerations are not merely a device for stating what Article 54 of the Convention already says, because the reasons which explain the existence of the

4. The penal settlement as an expression of the ius puniendi

61. Thus, when a person's trial in respect of certain acts has been finally disposed of, he cannot be tried again, irrespective of whether he was acquitted or convicted in the first proceedings.

62. That statement leads to the key factor in the queries of the national courts. Where a settlement is reached in criminal proceedings, are the acts finally disposed of? Or to put it another way: Is the settlement an expression of criminal justice?

63. The question must be clarified using specific knowledge of the way settlements operate in the justice system and the effects which are likely to be generated. In that investigation it is essential to take a look, albeit a bird's eye view, at the legal systems of the Member States which envisage a penal settlement procedure.

A. Settlement procedures in the Member States

64. Under German law

65. Austria has a procedure which is called diversion,

66. In Belgium there are two kinds of procedure within the jurisdiction of the Public Prosecutor's Office: settlement and penal mediation, provided for in Articles 216a and 216b of the

67. The French legal system has a procedure known as penal settlement,

68. Denmark provides

69. The Spanish legal system permits the accused to agree with the penalty sought by the Prosecutor, in which case the court pronounces sentence in accordance with the mutually agreed sanction.

70. Finnish law does not have a settlement procedure as such; however, it does have measures in the nature of a settlement which may lead to the discontinuance of criminal proceedings. It is a simplified procedure for misdemeanours,

71. Ireland has means of preventing an offence being the subject of criminal prosecution, for various reasons. One example is the payment of a fine,

72. Although under Italian law there is in general no settlement or penal mediation (except for offences committed by minors), there is a particular procedure called

73. In Luxembourg, the Law of 6 May 1999 has incorporated a paragraph 5 into Article 24 of the

74. The Netherlands also has the settlement procedure (

75. In Portugal

76. In the United Kingdom, there is a settlement procedure under English law in the context of road traffic. A fixed penalty notice offers a person the opportunity to avoid criminal proceedings by paying a fine and having penalty points imposed on his driving licence. Once the conditions have been fulfilled, the criminal action lapses.

77. Finally, there is in Sweden a procedure for imposing penalties without the intervention of a court (

B. The aim and objective of the criminal settlement

78. In order to describe a legal institution, particularly if its field of operation is the branch of the law which most directly affects the dignity and basic values of the individual, it is necessary to avoid pointless nominalisms and consider its inherent nature.

79. As we can see, many of the Member States

80. It is a procedure which, although appearing to be bilateral, is characterised by the fact that the State authorities act from a position of superiority. It is a way of administering criminal justice which, however, does not apply to all offences. It is the expression of a justice designed to respond to a particular category of behaviour, which is less socially reprehensible and whose punishment does not require the full force of the State's penalising mechanism to be brought to bear nor, consequently, the full operation of the safeguards of criminal procedure through the intervention of a court.

81. Also, the settlement is to a large extent a way of avoiding the collapse of the legal system by providing a simple, quick and efficient response in cases in which criminal policy advises. North American pragmatism has imposed a significant development on these mediation procedures, based always on acceptance by the accused of the penalty offered to him, although in large cities it has given rise to a singular practice.

82. With the settlement it is hoped to find the most appropriate way of dealing with certain kinds of criminality, which do not require the imposition of heavy sentences; a lighter, less traumatic reaction is enough. This circumstance allows the accused, without having to undergo legal proceedings, to acknowledge his guilt, either expressly or implicitly, and to expiate it by fulfilling the condition which he has agreed with the Prosecutor, within the limits laid down by the legislature, which in any event will be less onerous than if an agreement is not reached and the criminal prosecution pursues its normal route. In return, the State abandons its action, which lapses.

C. The criminal settlement, a way of doing justice

83. In this characterisation there are two features which cannot be ignored. The first is that the conditions which the accused fulfils are a punishment in retribution for his conduct. The second is that it is the State which is meting out the punishment, from a position of superiority. The accused is free to accept the settlement; if he does not do so, he must know that the criminal action will proceed. The

84. Indeed, the fact that, in a settlement, no court exercises its power to give judgment, does not have a dejudicialising effect, such that a decision to settle does not fulfil the criteria of Article 54 of the Convention. The phenomenon which some

85. The settlement is a means of resolving criminal cases by mutual agreement between the official bringing the criminal action and the accused, without the need for legal proceedings in the strict sense. Where a dispute is settled in this way, there is no bargaining between the offender and the Prosecutor for fixing the penalty. An offer ─ which may be taken or left ─ is made by the State public authority through the official bringing the criminal proceedings to impose the penalty.

86. It is not an agreement which is negotiated between the accused and the Public Prosecutor, as Mr Gözütok's representative has pointed out, but a decision, which is actually less aggressive than a conviction, in which the

87. It would be a mistake to describe the criminal settlement as contractual,

88. What is more, the settlement has an implicit judicial nature; it is not an institution which is outside criminal justice; its existence is only justified as a demonstration of the exercise of criminal justice. All criminal acts may be prosecuted by the Public Prosecutor's Office

89. Because the legislature has so intended, the State uses the settlement to exercise the

90. To sum up, a defendant who settles and accepts the conditions imposed by the Prosecutor is convicted for the acts which, by accepting the punishment, he confesses he is guilty of committing. Once the agreement becomes firm, his case may be regarded as finally disposed of and, because he has fulfilled the conditions to which he has agreed, the punishment may be considered completed. Consequently, his case cannot be heard again because that is prohibited under Article 54 of the Convention.

D. Protection of the rights of the individual in the criminal settlement

91. In the settlement, then, the State brings a criminal action against an individual who, as a matter of fact, acknowledges his guilt and, once the conditions imposed have been fulfilled, the action is extinguished,

92. This manner of administering justice protects the fundamental rights of the accused.

93. An accused to whom a settlement is offered faces a criminal charge within the meaning of the European Convention on Human Rights and,

94. For a start, the Public Prosecutor's Office is required to inform him that the settlement is optional and that he has the right to be tried by an independent tribunal. The principal international legislation

95. The freedom to accept or reject the settlement is fundamental. It may

96. That lawfulness is found in the take it or leave it option of the criminal settlement. The European Court of Human Rights has stated that, while the prospect of having to appear in court may affect a person's willingness to reject or accept the settlement, the pressure thereby brought to bear is not incompatible with the Convention.

97. To sum up, the settlement in criminal proceedings is a manifestation of the

98. Since the rights of the individual are protected, it is irrelevant, in the context of the questions raised by the national courts, in particular by the Oberlandesgericht Köln, and in spite of the approach taken by the French Government, whether the decision to discontinue the criminal action is approved by a court.

99. All things considered, the possible subsequent intervention of a court adds nothing new. Given that the accused's rights are protected

E. Res judicata of the criminal settlement

100. The administration of criminal justice by this means of agreement is not, therefore, a substitute but a different form of operating the

101. From the moment the accused accepts the public representative's proposal and fulfils the conditions imposed, the State has given its final response to the unlawful conduct, so that a person who settles and accepts the agreement, just as an accused whose case is disposed of in a non-appealable judgment, is entitled to expect that there shall be no looking back, that the content of the settlement shall remain firm and that he will not be troubled in the future in respect of the same acts.

102. That is to say, the settlement is binding and, once it has been executed, constitutes the State's final word on the matter. Enforceability and

103. This special operation of the decision only goes as far as the point at which the Public Prosecutor's Office may settle, that is to say, the criminal action, but it is not capable of affecting actions which, like the civil action arising out of every criminal infraction, may be brought by the victim or, more generically, the injured party. For that reason, Articles 216a and 216b of the Belgian

104. That is to say, under Article 54 of the Convention the discontinuance of criminal proceedings in one Member State as a consequence of a settlement agreed and successfully executed is a bar to a criminal prosecution on the same facts in another Member State, but does not prevent a victim bringing a civil action before the relevant court.

105. That assertion is obviously unnecessary, since the above provision relating to agreements refers only to criminal procedure. In systems in which the injured party may not bring the civil action at the same time as the criminal action before that court, there is no doubt. In legal systems in which it is possible for joint actions to be brought before the criminal courts, when a case is discontinued the injured party's right to bring the civil action before whomever and in whatever manner appropriate remains unaffected.

106. To sum up my arguments so far, I can say that Article 54 of the Convention applies to the criminal settlement since: (i) it is a means of exercising the

5. Interpretation of the expression finally disposed of in Article 54 of the Convention

107. In spite of the foregoing reasons, which lead to a broad interpretation, the German and French Governments suggest that Article 54 of the Convention should be construed restrictively, interpreting the terms used in the German, French and Netherlands versions literally. In their view, the expressions

108. If Article 54 is read with Article 58, it may be seen that it does not so obviously refer only to legal decisions, that is, to a ruling given by a court or tribunal at the end of legal proceedings conducted with all the safeguards of the adversarial procedure and rights of the defence. Article 58 allows the States signatory to the Convention to approve provisions granting broader effect to the

109. When that provision speaks of a person whose case has been finally disposed of ([a person who has been]

110. This assessment is justified because the terms used by the various versions are not homogenous, so that although the approach taken by the abovementioned Governments seems

111. The strict interpretation suggested by the abovementioned governments may have absurd consequences. For example, a person who is acquitted in a final judgment because he has proved that he did not participate in the criminal acts could not be prosecuted again in another Member State, whereas a defendant who, at the investigation stage, obtains from the examining magistrate an order for the unconditional discontinuance of proceedings for the same reason could have the sword of Damocles of a further action hanging over his head. The law must reject interpretations which have consequences which are contrary to reason and logic.

112. Furthermore, the restrictive approach may result in the practice failure. The accused who settles does so because he knows that, by acknowledging his guilt and agreeing to the punishment suggested to him by the Public Prosecutor's Office, he is going to settle his accounts more favourably than if he does not accept the settlement and is obliged to undergo criminal proceedings ending in a verdict. However, if he does not have the guarantee that, once he has completed the punishment, his conduct will not be judged again, he will be inclined to reject the proposal, so that this means of administering criminal justice, which is a true escape valve for the legal system, may come to a dead end, rendering it useless.

113. The German Government maintains that Article 4 of Protocol 7 to the European Convention on Human Rights restricts the

114. The position adopted by the French, Belgian and German Governments lack perspective. The

115. The extent of this restriction must be defined from the citizen's point of view, since it is one of his safeguards. If it means that once he has been prosecuted, judged and, if convicted, punished by the imposition of a penalty, the defendant has the right for no other signatory State to do the same. The form of the legal pronouncement and the manner in which it is given are of little importance provided that all the conditions and requirements fixed in the legal system under which the decision is delivered are fulfilled. It would be ludicrous to argue that Article 54 of the Convention can refer only to decisions taken by courts ─ that is to say, decisions delivered after proceedings conducted with all the safeguards ─, and, precisely with that argument, to reduce the scope of application of one of those safeguards.

116. Furthermore, a literal and strict interpretation of Article 54 of the Convention would have untoward consequences. Indeed, I have pointed out that the settlement procedure is a means of administering criminal justice in respect of minor or medium offences, but that it is not used in the field of more serious crimes. Therefore, the approach taken by the German, French and Belgian Governments would provide better treatment for the perpetrators of major offences, who would benefit from the

117. Apart from that, in order to establish the scope of Article 54 of the Convention, it is irrelevant to examine the intention of the legislature, in view of the fact that not even the Member States themselves are in agreement on that point.

118. From the above it may be inferred that Article 54 of the Convention applies to a person who obtains from the Public Prosecutor's Office an order for the discontinuance of criminal proceedings, once he has fulfilled the conditions which he has agreed with that representative of the State authority.

6. The other side of the coin: the principle of mutual trust

119. The

120. Accordingly, when a criminal action has been discontinued in one Member State, the others cannot disregard that fact.

121. In an integrated Europe, which is openly undergoing a process to promote ever closer cooperation between the Member States, it would be unacceptable if a person could be troubled for a second time.

122. The objective stated in the Treaty on European Union,

123. In order to fulfil this purpose, the new Title VI of the Treaty on European Union provides that common action in criminal matters includes facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States in relation to proceedings and the enforcement of decisions.

124. This shared goal cannot be achieved without the mutual trust of the Member States in their criminal justice systems

125. Recognition of a judgment also means taking it into consideration, one of the corollaries of which is the

126. It is clear that all the arguments lead to a broad interpretation of Article 54 of the Convention allowing for the inclusion in its field of application of decisions to discontinue criminal proceedings taken by the Public Prosecutor's Office, following a settlement agreed and successfully executed. This is the position maintained by the Commission and the Netherlands and Italian Governments.

127. The Commission had already made this suggestion. Full mutual recognition as envisaged to be achieved among EU Member States would have to be based on the principle that a decision taken by no matter which authority in the EU fully deals with the issue and that no further decision needs to be taken at all ... In other words, if someone was convicted or acquitted ... in Member State A, he should not be prosecuted ... in Member State B, even if Member State B has jurisdiction over the facts ... and even if in Member State B, a different judgment could have been pronounced ...

128. That path was taken by the Council which, in the Programme of measures to implement the principle of mutual recognition of decisions in criminal matters,

129. Admittedly, it is stated in that document that that aim has been only partially realised in Articles 54 to 57 of the Convention and that it is necessary to extend the principle of mutual recognition to acquittals and also to decisions adopted following penal mediation. However, the above declarations are not, as the Belgian Government claims, a definitive endorsement of the strict interpretation defended by the Belgian and German Governments.

130. The abovementioned document is not a legislative provision which binds the Court of Justice. At most, it is an extra interpretive element which cannot be considered in isolation, without account being taken of other constituents ─ much more decisive for the Court's exercise of its judicial function, which is to state the law and interpret the provisions which make up the Community legal system ─, like those which I have presented throughout this Opinion: the rationale of Article 54 of the Convention, the bases of the

131. Furthermore, the conclusion drawn by the Belgian Government cannot be inferred from the reference to penal mediation; firstly, because the Council does not have the monopoly on interpreting the Convention and, secondly, because that reference is imprecise and does not make it possible to state, without a shred of doubt, whether it refers to penal mediation in the strict sense or includes any settlement procedure, like those which I have considered in this Opinion, in which the State authority offers the accused an agreement by which the proceedings are discontinued in return for the fulfilment of certain obligations.

132. I think that, on the contrary, the Council's most recent pronouncements show that its intention is very far from that which the Belgian Government seeks to attribute to it after a cursory reading of the abovementioned Programme.

133. It is clear from Article 9 of the Framework Decision of 13 June 2002 on combating terrorism

VII ─ Conclusion

134. In accordance with the foregoing considerations, I propose that the Court of Justice should state, in reply to the questions submitted by the Oberlandesgericht Köln and the Rechtbank van Eerste Aanleg te Veurne, that: the

(1) the conditions imposed are in the nature of a penalty;

(2) the agreement presupposes an express or implied acknowledgment of guilt and, accordingly, contains an express or implied decision that the act is culpable; and

(3) the agreement does not prejudice the victim and other injured parties, who may be entitled to bring civil actions.