The Treaty of Lisbon and the prohibition of double criminal prosecution

Archive note: This text comes from the old archive of Nomika Epilekta and is preserved with care for historical and informational reading.

THE APPLICATION IN GREECE OF THE TREATY OF LISBON, THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION AND THE PROHIBITION OF DOUBLE CRIMINAL PROSECUTION AND CONVICTION Before the issuance of decision no. 1/2011 of the First Regular Criminal Plenary Session of the Supreme Court ["Nomika Epilekta": The Supreme Court Quashed the Conviction of Greek Citizens], the view had correctly been supported that the principle of “ne bis in idem” (that is, the prohibition of double criminal prosecution and double conviction for the same offence) has direct application and direct effect and, more generally, that the Charter of Fundamental Rights of the European Union (C.F.R.E.U.) applies and has force directly in the Greek legal order. More specifically, it was correctly argued that the Treaty of Lisbon had direct force in the Greek legal order. Consequently, the courts were obliged to apply it in all cases without exception, even in the case of the exercise of double criminal prosecution and, much more so, in the case where a criminal judgment exists, whether acquittal or conviction. 1. The Treaty of Lisbon, in force since 01.12.2009 According to Article 6 (final provisions) of the Treaty of Lisbon, that Treaty entered into force on 01.12.2009, since that provision states that “1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic. 2. This Treaty shall enter into force on 1 January 2009, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the instrument of ratification by the signatory State which last takes this step”. The last Member State of the European Union to deposit the instruments of ratification was the Czech Republic, which deposited them on 13.11.2009. According to the second paragraph of the above article, the Treaty of Lisbon, by which the two Treaties of the Union were amended [the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC)], the latter of which was transformed into the Treaty on the Functioning of the European Union (TFEU), entered into force throughout Europe on 01.12.2009. 2. The two Treaties of the Union. The two amended Treaties of the Union, according to the first article of the TEU, have the same legal value, which before the Treaty of Lisbon belonged only to the Treaty establishing the European Community. Article 1 TEU (former Article 1 TEU): “By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called the ‘Union’, on which the Member States confer competences to attain objectives they have in common. This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. The Union shall be founded on this Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community”. 3. The Charter of Fundamental Rights of the European Union (C.F.R.E.U.) The Charter of Fundamental Rights of the European Union has the same legal value, that is, the legal value of the former Treaty establishing the European Community, according to Article 6 § 1 TEU (former Article 6 TEU), which provides that “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, which set out the sources of those provisions”. According to the above, the two Treaties of the Union and the Charter have exactly the same legal value as the former Treaty establishing the European Community. This means, as follows from the settled case law of the Court of Justice of the European Communities (ECJ, now CJEU - Court of Justice of the European Union), that all provisions of the two Treaties and of the Charter bind the Member States, have direct application and direct effect in the domestic legal orders of the Member States and also prevail over national provisions, which must be set aside by national judges where there is incompatibility between the national and European provisions in the relevant case [see in this regard ECJ, judgment of 15.7.1964, C-6/64, Costa/E.N.E.L., where the Court held that the TEC established, as soon as it entered into force, a special legal order which is an integral part of the legal system of the Member States and therefore binds all their state organs. ECJ, judgment of 5.2.1963, C-26/1962, NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen, where the Court held that this special legal order constitutes a new legal entity, namely a new legal order for whose benefit the Member States limited their sovereign rights, albeit within limited fields, and whose subjects are not only the Member States but also their nationals; and ECJ, judgment of 9.3.1978, C-106/77, Amministrazione delle Finanze dello Stato v. Simmenthal S.p.A., where the Court decided that the national judge, as an organ of a Member State, is obliged to apply Community law “...leaving unapplied any contrary provision of national law, whether adopted before or after the Community rule” and that, beyond this, national courts must ensure the full effectiveness of Community law “if necessary setting aside, on their own authority, any contrary provision of national legislation, even if subsequent, without having to request or await its prior removal either by legislative means or by any other constitutional procedure...”]. That the settled case law of the ECJ also applies after the date on which the Treaty of Lisbon entered into force is shown by the fact that, as stated, Article 1 TEU provides that the two Treaties of Europe have the same legal value as the former Treaty establishing the European Community, which has been replaced and succeeded by those two Treaties. The legal value of the Treaty establishing the European Community was created by the aforementioned judgments of the ECJ. Confirmation of the force of the settled case law of the ECJ also arises from Declaration 17 (declaration concerning primacy) in the final provisions supplementing the two Treaties: “The Conference recalls that, in accordance with settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law”. The Conference also decided to annex to the Final Act the opinion of the Legal Service of the Council concerning primacy, contained in document 11197/07 (JUR 260): “Opinion of the Legal Service of the Council” of 22 June 2007. It results from the case law of the Court of Justice that primacy of Community law is a fundamental principle of that law. According to the Court, this principle is inherent in the specific nature of the European Community. At the time of the first judgment in this settled case law (Costa/ENEL 1, 15 July 1964, Case 6/64) there was no mention of primacy in the Treaty, and that remains the case today. The fact that the principle of primacy will not be included in the future Treaty shall not in any way change the existence of the principle and the existing case law of the Court”. 4. The principle of ne bis in idem The now binding C.F.R.E.U. also contains the principle ne bis in idem. The relevant provision, Article 50 (right not to be tried or punished twice in criminal proceedings for the same criminal offence), of the Charter provides as follows: “No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law”. It follows from this sentence that no one may now be tried again twice for the same facts, not only within one country but also within the Union, that is, within the whole territory of the Member States. This is also confirmed by the Explanation relating to Article 50 (found in the explanations relating to the Charter of Fundamental Rights of the European Union, 2007/C 303/02, 14.12.2007 Official Journal of the European Union C 303/17). That explanation states verbatim: “In accordance with Article 50, the non bis in idem rule applies not only within the jurisdiction of one State but also between the jurisdictions of several Member States. This corresponds to the acquis in Union law”. CONCLUSION The rights, freedoms and principles provided for in the Charter of Fundamental Rights of the European Union entail direct application and direct effect in the domestic legal orders of the Member States and also prevail over national provisions, which must be set aside by national judges where there is incompatibility between those national provisions and the relevant European provisions in the case concerned, since under Article 1 TEU those rights, freedoms and principles have exactly the same legal value as the provisions of the two Treaties, which, as decided by the ECJ, means that they produce the higher legal consequences referred to above. Specifically, where there is a criminal conviction or acquittal of a person by a court of a Member State of the European Union, the court before which the case may later be brought, in relation to which a judicial decision has already been issued, is obliged and must decide that the second criminal prosecution against the same person is inadmissible, because Article 50 of the C.F.R.E.U. binds the national court and has direct application and direct effect in the Greek legal order and, also, the court, as an organ of the European Union, is obliged not to take into account Article 8 in conjunction with Article 9 of the Greek Criminal Code (on which the impermissible double criminal convictions of unfortunate defendants had until recently been based), since the combination of those two provisions conflicts with one of the rights protected by the C.F.R.E.U., which prevail over national provisions. Possible (unfounded) objection 1: In the specific case, it may be argued (for example by the prosecutor) that Article 6 TEU, first paragraph, third subparagraph, provides that “The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, which set out the sources of those provisions”. Then, Article 51, first paragraph, which regulates the field of application of the Charter, states verbatim that “1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote their application in accordance with their respective powers and within the limits of the powers of the Union as conferred on it by the Treaties”. The following is set against this: (1) In the first place, this sentence is addressed to the legislator in the case where he creates new legislation that is not intended to implement European legislation. It is not, however, addressed to national courts that must issue decisions in a case where the accused invokes his human right not to be tried twice (within the European Union) for the same facts, since that provision states that “The provisions of this Charter are addressed to the institutions and bodies of the Union”, because, on the basis of the settled case law of the ECJ and specifically the Simmenthal judgment, the national courts of the Member States are regarded as organs of the European Union. Consequently, the phrase “The provisions of this Charter are addressed to the institutions and bodies of the Union” also covers national courts. (2) Secondly, also, as stated in the explanation relating to Article 51 (Field of application), the Member States are bound by the C.F.R.E.U. only when they act within the scope of European law [see judgment of 13 July 1989, Wachauf, Case 5/88, ECR 1989, p. 2609; judgment of 18 June 1991, ERT, ECR 1991, p. I-2925; judgment of 18 December 1997, Case C-309/96 Annibaldi, ECR 1997, p. I-7493]. That is, the court acts within the scope of European law when it decides on the trial of an accused person who has already been convicted in another Member State of the Union (for example in the Netherlands), where the sentence imposed by the relevant court has also been served (or has not been served). In addition, that accused person (who has already been tried in another EU Member State) is deprived of his right to move freely within the territory of the Union [see Articles 20 (former 17 TEC), 45-54 (former 39-48 TEC) TEU and Article 3 (former 2) TEU], since, because of the second prosecution brought against him, he cannot move freely from the rest of Europe into Greece without being arrested (if the second prosecution has been brought in Greece and the conviction or acquittal occurred in the Netherlands). However, the decision of the national court in this case (of the example) constitutes action within the scope of European criminal law and European law on free movement (which is, as is known, one of the fundamental principles of the European Union), which means that in this case the Member State, namely Greece, is bound by the aforementioned C.F.R.E.U. and, consequently, by the prohibition of double prosecution within the European Union, according to the aforementioned Article 50 in conjunction with Article 51 C.F.R.E.U. and the relevant explanation. (3) Finally, the Greek court is bound by the C.F.R.E.U. because, apart from the reasons that have been analysed, the European legislator could in no case have meant by the relevant provision that the national courts of the Member States are not bound, in cases such as the example under discussion, by the rights, freedoms and principles protected by the C.F.R.E.U., and could not have intended that the effect of that provision would be that the national courts of the Member States would not apply the rights, etc., protected by the Charter of Fundamental Rights of the European Union. That the European legislator indeed did not mean and did not intend to have the aforementioned result follows from the fact that he provided that this Charter (C.F.R.E.U.) has exactly the same legal value as the two Treaties of the Union. If the legislator had wanted national courts not to be bound by the Charter (C.F.R.E.U.), there would have been no reason to give it the same legal value, because, as interpreted in detail above, that legal value allows and makes it possible for persons to invoke provisions of the Charter (C.F.R.E.U.) before national courts, with the result that those courts are obliged to apply the relevant invoked provisions directly and not to take into account any contrary law of the national legal order [see ECJ, judgment of 5.2.1963, C-26/1962, NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen; ECJ, judgment of 9.3.1978, C-106/77, Amministrazione delle Finanze dello Stato v Simmenthal S.p.A.; and ECJ, judgment of 15.7.1964, C-6/64, Costa/E.N.E.L.]. Possible (unfounded) objection 2: The prosecutor may also argue that the explanations relating to Article 50 § 3 of the Charter (C.F.R.E.U.) state verbatim that “In accordance with Article 50, the non bis in idem rule applies not only within the jurisdiction of one State but also between the jurisdictions of several Member States. This corresponds to the acquis in Union law, see Articles 54 to 58 of the Convention implementing the Schengen Agreement and the judgment of the Court of 11 February 2003, Case C-187/01, Gozutok (ECR 2000, p. I-1345), Article 7 of the Convention on the Protection of the Communities’ Financial Interests and Article 10 of the Convention on the fight against corruption”. That is, this explanation refers to Articles 54 to 58 of the Convention implementing the Schengen Agreement (CISA). However, Article 50 of the Charter (C.F.R.E.U.) must be interpreted in accordance with those provisions: Article 54 “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”. This provision corresponds to Article 50 of the Charter (C.F.R.E.U.). Then the Contracting Parties are given the opportunity to retain reservations in relation to the above article, that is, in relation to the same right protected by Article 50 of the Charter (C.F.R.E.U.). Compare Article 55 of the Schengen Convention, which provides that “1. A Contracting Party may, at the time of ratification, acceptance or approval of 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 either wholly or partly in its own territory; in the latter case, however, this exception shall not apply if the acts took place partly 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 the security of the State or against other equally essential interests of that Contracting Party. (c) where the acts to which the foreign judgment relates were committed by an official of that Contracting Party in breach of the duties of his office. 2. A Contracting Party which has made the declaration concerning the exception provided for in paragraph 1(b) shall specify the categories of offences to which this exception may apply”. According to the second paragraph of the above article, Greece declared that it wished to retain the same reservations for all permitted cases and, in particular, the Hellenic Republic declared “pursuant to Article 55 of the Convention implementing the Schengen Agreement, that it is not bound by Article 54 of the Convention in the following cases: (...) 3. Where the acts that were the subject of the foreign judgment constitute the following punishable acts, which are provided for by Greek criminal legislation: (...) and under (h) illicit trafficking in narcotic drugs and psychotropic substances”. Consequently, the principle ne bis in idem does not apply in Greek jurisdiction when the (Greek) accused has already been convicted for the same facts abroad in the above cases, which include, among others, trafficking in narcotic drugs and psychotropic substances, because the Hellenic Republic lawfully declared that it is not bound by Article 54 in accordance with Article 55 and, since the explanation relating to Article 50 of the Charter (C.F.R.E.U.) refers to those provisions (that is, to Articles 54-58 of the Schengen Convention), those reservations also apply to Article 50 of the Charter (C.F.R.E.U.). Therefore, the (second) prosecution brought against the accused and the combination of Articles 8 and 9 of the Criminal Code in general is lawful because it does not violate European law. This means that the court is neither compelled nor obliged to set aside those provisions and must, according to the above, apply those national articles of the Criminal Code in the specific case (of the example taken of double prosecution and conviction in one of the EU Member States, in this case the Netherlands). The following is set against this: 1) The relevant declaration of the Hellenic Republic has not been valid since the moment when the Treaty of Amsterdam entered into force, which was signed on 2 October 1997 and entered into force on 1 May 1999. That Treaty amended the EU and EC Treaties and changed the numbering of their articles. It also incorporates the Schengen acquis into the framework of the European Union through the “Protocol integrating the Schengen acquis into the framework of the European Union”, which is contained in the Treaty of Amsterdam. Through this incorporation the reservations lost their force. The Schengen Convention was initially, in its basic characteristics, a classic international convention, at the ratification of which the contracting states had the option to formulate reservations within the framework of Article 55 thereof. However, with the Treaty of Amsterdam the CISA ceased to be a classic international convention, since the Schengen acquis was incorporated, by a special Protocol annexed to the Treaty of Amsterdam, through Article 2, into the legal and institutional framework of the EU. [1] An Annex to the aforementioned Schengen Protocol sets out the whole incorporated Schengen acquis. The texts listed include the acts of accession of the eight states, including Greece, and the corresponding final acts and joint declarations, but not the declarations-reservations of the states under Article 55 CISA. In other words, the Annex in question does not contain the unilateral declarations under Article 55 CISA, including that of Greece. Moreover, Council Decision no. 1999/435/EC of 20.05.1999 on the definition of the Schengen acquis for the purpose of determining the legal basis for each of the provisions or decisions which constitute the acquis incorporated into the legal framework of the EU provides that the Schengen acquis consists of all texts listed in Annexes A and B to the Decision. The texts listed there in detail likewise do not include the unilateral declarations-reservations of the Member States. [2] In view of the above data, the reservations under discussion ceased to have force from the entry into force of the Treaty of Amsterdam, since otherwise, if they were to continue to apply, they would have been included in the Annex to the Schengen Protocol and in the Annexes to the above Decision of the Council of the EU. Also, the continued force of the disputed unilateral reservations after the integration of the Schengen acquis into the legal and institutional framework of the EU would partly defeat the basic purpose of the Treaty of Amsterdam, namely the acceleration of the creation of the single European area of freedom, security and justice. [3] This is also supported by the content of the preamble to the relevant Protocol, in the third paragraph, where it is stated verbatim that · “the provisions of the Schengen acquis are applicable only if and insofar as they are compatible with European Union law and Community law”. It is clear, from the aforementioned basic purpose of the Treaty of Amsterdam, in which the already existing free movement of nationals of the Union is also confirmed, that the reservations formulated by the Hellenic Republic under Article 55, and in particular the reservation concerning trafficking in narcotic substances, are not compatible with European Union law. Consequently, those reservations, if they are considered provisions of the Schengen acquis, which according to the above is doubtful, cannot be applied. The following also supports the view that the reservations have been abolished: According to Article 8 of the Schengen Protocol, states that accede to the CISA after the Treaty of Amsterdam do not have the right to formulate reservations in relation to any text of the Schengen acquis; they are therefore obliged to accept it in its entirety as it stands, since the text of Article 8 is as follows: “For the purposes of the negotiations for the accession of new Member States into the European Union, the Schengen acquis and further measures taken by the institutions within its scope shall be regarded as an acquis which must be accepted in full by all candidate States for accession”. [4] This applies to all the new (twelve in total) EU states. It would therefore be incongruous for seven of the (thirteen) “old” states of the Schengen area to continue applying Article 54 CISA with reservations, while all the “new” EU states apply Article 54 CISA without restrictions. The view supported here is ultimately reinforced also by the wording of Article 50 of the Charter of Fundamental Rights of the EU, in which no exceptions are provided in relation to the cross-state effect within the EU of the principle ne bis in idem. [5] Conclusion The declarations-reservations that Greece had formulated under Article 55 CISA by Article Three of Law 2514/1997 have lost their force. Article 54 CISA, after the entry into force of the Treaty of Amsterdam, should already have been applied without excluding the offences listed in Article Three of Law 2514/1997. [6] 2) In the alternative, the following is noted: If the court were wrongly to judge and decide that the above does not apply, that is, that the declarations-reservations formulated by Greece under Article 55 CISA did not cease to be valid when the Treaty of Amsterdam entered into force, it is submitted that, if it is held that the declarations-reservations of the Hellenic Republic under the Treaty of Amsterdam did not cease to be valid, they did however cease to be valid with the entry into force of the Treaty of Lisbon. This follows from the following: It had been argued by the prosecutorial bench in a specific criminal case, in which the accused had already been tried in another EU Member State, that the explanations relating to Article 50 C.F.R.E.U., with the sentences “In accordance with Article 50, the non bis in idem rule applies not only within the jurisdiction of one and the same State but also between the jurisdictions of several Member States. This corresponds to the acquis in Union law, see Articles 54 to 58 of the Convention implementing the Schengen Agreement...” refer to Articles 54-58 and that this means that those articles still apply today, after the entry into force of the Treaty of Lisbon. This, however, is an erroneous view, because with those sentences the explanations merely show that the rule of res judicata already applied within the total jurisdictions of the Member States, as appears from those articles. In no case and from nothing does it follow, however, that those sentences mean that this rule applies under the same conditions as Articles 54-58 CISA, that is, that Article 50 of the Charter (C.F.R.E.U.) must be interpreted in accordance with those articles of the Schengen Convention. This is also shown by the explanation itself, where it is stated (in the second subparagraph of the same text) that “The very limited exceptions in those Conventions permitting the Member States to derogate from the non bis in idem rule are covered by the horizontal clause in Article 52(1) of the Charter concerning limitations”. Consequently, the explanation relating to Article 50 of the Charter (C.F.R.E.U.) provides that Member States are allowed to depart from the rule of res judicata only under the conditions of Article 52 C.F.R.E.U., which means that indeed, now with the entry into force of the Treaty of Lisbon by which the Member States are bound by the Charter (C.F.R.E.U.), no other exception, especially Greece’s declaration-reservation, is permitted apart from those applicable under Article 52 of the Charter (C.F.R.E.U.). In addition, Article 52 (scope and interpretation of rights and principles), first paragraph, of the Charter (C.F.R.E.U.) provides that “1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others”. Indeed, the limitation in the present case is provided for by law in Articles 8 and 9 of the Criminal Code. However, as stated in the above provision, this is not the only condition under which limitations are permitted, since the second sentence of the article provides that the relevant limitation must also be necessary and genuinely meet objectives of general interest of the Union or the need to protect the rights and freedoms of others. The meaning of this last sentence of the article and its interpretation are also regulated by the aforementioned explanations, which also contain the explanation relating to Article 52 of the Charter (C.F.R.E.U.), where the following is stated verbatim: “The purpose of Article 52 is to set the scope of the rights and principles of the Charter and to lay down rules for their interpretation. Paragraph 1 deals with the arrangements for the limitation of rights. The wording is based on the case law of the Court of Justice: ‘... according to well-established case law, restrictions may be imposed on the exercise of fundamental rights, in particular in the context of a common organisation of the market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference impairing the very substance of those rights’ (judgment of 13 April 2000, Case C-292/97, paragraph 45 of the grounds). The reference to general interests recognised by the Union covers both the objectives mentioned in Article 3 of the Treaty on European Union and other interests protected by specific provisions of the Treaties, such as Article 4(1) of the Treaty on European Union, Article 35(3) of the Treaty on the Functioning of the European Union and Articles 36 and 346 of that Treaty”. As stated above, the continued force of the disputed unilateral reservations within the legal and institutional framework of the EU would partly defeat the basic purpose of the Treaty of Amsterdam, namely the acceleration of the creation of the single European area of freedom, security and justice. This creation of the single European area of freedom, security and justice without borders, within which the free movement of persons is ensured, continues today to be one of the most fundamental objectives of the European Union (see Article 3 TEU[7], where the objectives of the European Union are literally set out according to the explanation formulated above relating to Article 52 C.F.R.E.U.). Moreover, the reservations under discussion are not limitations that correspond to objectives of general interest pursued by the European Union; on the contrary (!), this limitation, that is, the declarations-reservations of the Hellenic Republic, violates the European objective of creating the single European area of freedom, security and justice, since those reservations attempt to maintain an area in which only Greek jurisdiction counts and in which only Greek jurisdiction constitutes legal and institutional authority. In the alternative, even if the court were wrongly to hold that the above does not apply, in other words that the declarations-reservations in question constitute limitations that genuinely meet objectives of general interest pursued by the European Union, the declarations-reservations are not permitted by Article 52 of the Charter (C.F.R.E.U.) because they cannot in any way be assessed as limitations that do not constitute disproportionate and intolerable interference impairing the very substance of those rights, according to the second condition set out in the continuation of the same sentence of the explanation referred to, since the relevant reservations do in fact constitute disproportionate and intolerable interference impairing the very substance of the rights, because they impair the substance of the right not to be tried twice for the same facts within the Union. Consequently, those reservations cannot be assessed as permissible limitations of the right of res judicata according to Article 52 of the Charter of Fundamental Rights of the European Union (which now, as provided by the explanation relating to Article 50 C.F.R.E.U., constitutes the sole provision limiting the permissible exceptions and limitations of the rights protected by the C.F.R.E.U.), as interpreted by the explanation relating to Article 52. It is also worth noting that according to Article 52, paragraph 7, of the Charter (C.F.R.E.U.) “the courts of the Union and of the Member States shall have due regard to the explanations drawn up as a way of providing guidance in the interpretation of this Charter”. The court therefore cannot give the relevant provisions of the Charter (C.F.R.E.U.) an interpretation other than the interpretation given by the explanations. Finally, Article 53 (level of protection) provides as follows: “Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law, international law and by international agreements to which the Union or all the Member States are party, including in particular the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions”. And Article 54 (prohibition of abuse of rights) provides that “No provision of this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at limitations of those rights and freedoms to a greater extent than is provided for herein”. Conclusion The view that Articles 54 to 58 CISA, according to which the declarations-reservations of the Hellenic Republic are permitted through Article 55 CISA, still apply even after the entry into force of the Treaty of Lisbon because the explanation relating to Article 50 of the Charter refers to the cited provisions of CISA, is erroneous for two reasons. On the one hand, the reference to those articles has the simple and sole purpose of recalling that the rule of res judicata already existed in the acquis of Union law, since nowhere in the relevant explanation does it follow that this rule is regulated under the conditions of Articles 54-58 CISA, in other words that Article 50 C.F.R.E.U. must be interpreted in accordance with those articles. In addition, the very same explanation of Article 50 C.F.R.E.U., in the second subparagraph, provides that Member States may derogate from the rule of res judicata only under the conditions of Article 52(1) C.F.R.E.U. and therefore not under the conditions of Articles 54-58 CISA or under any other condition. On the other hand, since the permissible exceptions are regulated by Article 52 of the Charter (C.F.R.E.U.), the theory that Articles 54-58 CISA apply even after the entry into force of the Treaty of Lisbon (through which the Member States of the Union became bound by the Charter) cannot be supported, because there is no compatibility between the conditions of Article 52 C.F.R.E.U. and the declarations-reservations formulated by Greece, except that the exceptions are provided for by law in Articles 8 and 9 of the Criminal Code, according to the relevant explanation, since those declarations-reservations do not constitute limitations that genuinely meet objectives of general interest pursued by the European Union but, on the contrary, constitute limitations that are contrary to the fundamental objective, recognised by the European Union and referred to in Article 3, second paragraph, of creating a single European area of freedom, security and justice within which the free movement of persons is ensured, to which the last part of the explanation relating to Article 52, first paragraph, also refers. Further and in the alternative, in the event that the court were wrongly to hold that the declarations-reservations in question constitute limitations that genuinely meet objectives of general interest pursued by the European Union, those declarations-reservations cannot in any case be assessed as limitations that do not constitute disproportionate and intolerable interference impairing the very substance of those rights, as provided by the second part of the explanation under discussion as an additional condition for permissible exceptions. 3. Final conclusion Ultimately, the court must hold that the second criminal prosecution brought within the European Union against the accused for a second time is inadmissible, because double prosecution within the European Union constitutes a violation of European law and, specifically, a violation of the right of res judicata protected by the now binding Charter of Fundamental Rights of the EU in Article 50 thereof, which states verbatim that “No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law”. As was shown, there is no permissible exception that can limit the right of res judicata in the present case, because (in the example) the accused has in fact already been acquitted or already convicted for the same facts by another criminal judgment of the competent Dutch criminal court (for example, the Criminal Court of Appeal of The Hague, Netherlands). In addition, the exceptions followed by the declarations-reservations formulated by the Hellenic Republic and, in particular, the reservation concerning the exception from the rule of res judicata for crimes relating to illicit trafficking in narcotic drugs and psychotropic substances, had already ceased to apply after the incorporation of CISA into the legal framework of the European Union through the Treaty of Amsterdam and, in any case, do not apply after the entry into force of the Treaty of Lisbon, since exceptions to this rule, according to the explanation relating to Article 50 of the Charter (C.F.R.E.U.), are permitted only under the conditions of Article 52, first paragraph, of the now applicable C.F.R.E.U., because, as was shown, there is no compatibility between the reservation and the conditions of Article 52 of the Charter (C.F.R.E.U.). According to the above, in conjunction with the settled case law of the ECJ, the court has the obligation to recognise the primacy of Article 50 C.F.R.E.U., since the provisions of that Charter acquired, through the entry into force of the Treaty of Lisbon, lawful binding force, direct application and direct effect in the Greek legal order and, consequently, the court must ensure the full effectiveness of Community law “if necessary setting aside, on its own authority, any contrary provision of national legislation, even if subsequent, without having to request or await its prior removal either by legislative means or by any other constitutional procedure.” In other words, in the example given the court must apply Article 50 and disregard Articles 8 and 9 of the Criminal Code and, after that, hold the second prosecution referred to inadmissible because of criminal res judicata. Already, after the issuance of the aforementioned decision of the regular criminal plenary session of the Supreme Court (Plenary Supreme Court 1/2011), no issue of interpretation of the relevant provisions arises; they apply directly also in Greece, which is no longer an exception (because of Plenary Supreme Court decision 7/2002, which has already been abolished by the newer Supreme Court decision), nor an obstacle to European integration, at least as regards criminal res judicata and double criminal convictions (which from 2002 until 2011 exposed Greece internationally). E. Papadakis [1] See Ilias Anagnostopoulos, Ne bis in Idem – European and International Aspects, Law & Economy, Athens 2008, p. 101.

[2] Ibidem, pp. 101-102.

[3] Ibidem, p. 102.

[4] Ibidem, p. 102.

[5] Ibidem, p. 102.

[6] Ibidem, p. 103.

[7] Article 3, second paragraph, TEU (former Article 2 TEU) provides that “The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime”