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CJEU - C 436/04 / Opinion

Criminal proceedings against Leopold Henri Van Esbroeck v Openbaar Ministerie

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
European Court of Justice
Decision date:

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 AG argued that “the trafficking of the same narcotic drugs and psychotropic substances of whatever type, including cannabis, between two States which are signatories to the Convention or in which the Schengen acquis is implemented and applied, constitutes ‘the same acts’ … irrespective of the legal classification of that conduct in the legal systems of the States concerned.” (para 59) FRC - Article: 50