Key facts of the case:

In October 2000, Mr Van Esbroeck, a Belgian citizen, was sentenced by the Bergens Tingrett (Court of First Instance, Bergen) (Norway) to five years’ imprisonment for illegally importing narcotic drugs, an offence which he committed on 1 June 1999. After serving half his sentence and being released conditionally, Mr Van Esbroeck returned to his own country where, on 27 November 2002, a prosecution was opened in which he was charged with exporting, on 31 May 1999, the same substances which he had imported into Norway one day later. The Correctionele Rechtbank van Antwerpen (Criminal Court, Antwerp), Belgium, sentenced Mr Van Esbroeck to one year’s imprisonment by judgment of 19 March 2003, which the Hof van Beroep te Antwerpen (Court of Appeal, Antwerp) upheld on appeal by judgment of 9 January 2004. The defendant lodged an appeal on a point of law and pleaded infringement of the ne bis in idem principle enshrined in Article 54 of the Convention, which 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.’

Results (sanctions) and key consequences of the case:

The Court held “There is a necessary implication in the ne bis in idem principle … that the Contracting States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Contracting States even when the outcome would be different if its own national law were applied” Interpretation of article(s) and implications for the resolution of the case: FRC - Article 50: The Judgment establishes that “the relevant criterion for the purposes of the application of [Art 54 Schengen Convention] is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected”. Consequently a strictly legal approach to determine whether someone is being punished twice for the same offence is not acceptable.