Why the European Court of Justice has to make a sage decision!

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ruling from ECJ in the GAL BARAK case is still pending

Why the European Court of Justice has to make a sage decision!

The 1st Criminal Division in Bamberg, Germany, has submitted a request for a ruling to the European Court of Justice  (ECJ) for the next steps in the Gal BARAK case on June 4, 2021. The pending ruling of the ECJ will not only be important in the criminal case of Gal BARAK but plays a decisive role in the entire fight against organized cybercrime in Europe.

Gal Barakthe Wolf of Sofia – was sentenced to 4 years imprisonment in Austria for defrauding Austrian victims with about 3 million euros damage. After 11 months of home arrest and 13 months of prison stay in Vienna, his sentence was suspended at the end of January 2021. In early June 2021, Gal Barak left Vienna by a private jet to Israel. To date, none of his victims has received any money back. According to his lawyers, a conviction for the acts committed against the remaining tens of thousands of victims throughout Europe with total damage of around 200 million euros (best estimate acc. to the illegal files) is not possible due to the right not to be tried or punished twice in criminal proceedings for the same criminal offence also called the “ne bis in idem rule” (Article 50 of the  CFR (Charter of Fundamental Rights of the European Union)) applicable in the territory of the European Union (C365/21).

 

The case

On September 1, 2020, at the Court of Vienna, the Israeli Gal BARAK, 33, was sentenced to 4 years of imprisonment by the panel of lay judges presided over by Judge Dr Christian Böhm for cyber financial crime in the concrete form of severe commercial fraud and money laundering (under § 147 (3) öStGB and § 165 öSTGB in conjunction with § 28 (1) öStGB). Since Gal BARAK had been convicted in Austria “only” because of the Austrian victims, the German authorities – because of the damage caused to German nationals – applied for an arrest warrant against Gal BARAK. They charge Gal BARAK with for the formation of a criminal organization (§§ 129 para 1, para. 5 sentences 1, sentence 2, 263 para 1, para 3 sentence 2 No. 1, para 5, 25 para 2, 52 of the dStGB) with others (including Marina Barak formerly Andreeva), the arrest warrant was issued on 08.12.2020. A corresponding European arrest warrant was issued subsequently.

 

Release of GAL BARAK

After 11 months of home arrest in his Bulgarian apartment and 13 months of detention in the Vienna Prison, the remainder of the sentence imposed on Gal BARAK was suspended on 29.01. 2021. BARAK was taken into surrender custody by order of the Vienna Regional Court of the same date based on the European arrest warrant. Gal BARAK’s appeal against the arrest warrant was rejected as unfounded by order of the Regional Court of Bamberg dated 08.03.2021. On a further complaint of BARAK’s lawyer, the criminal Senate in Bamberg requested a preliminary ruling from the ECJ on 04.06.2021. The request for the ruling mainly concerns the application of the “Right not to be tried or punished twice in criminal proceedings for the same criminal offence” according to the European rules (Art. 54 CISA and Art. 50 CFR).

In addition, the Bulgarian authorities had not given their consent to the transfer of BARAK to Germany. The Regional Court in Vienna refused to hand Gal BARAK to the German authorities in a final decision dated May 28, 2021. Immediately afterwards, Gal BARAK was flown out to Israel by a private jet. The whereabouts of Gal BARAK are currently unknown to the authorities.

 

Decisions made by the German authorities

The 2nd criminal chamber of the regional court Bamberg (2. Strafkammer des Landgerichtes Bamberg)  rejected the complaints of Gal BARAK against the German arrest warrants as unfounded as of March 8, 2021. Their main argument was that the Court of Vienna had prosecuted GAL BARAK for the fraud offences to the detriment of only Austrian aggrieved persons.

In contrast, BARAK was to be charged in Germany for fraud against German citizens. The German court argued because of the difference of the aggrieved persons, BARAK was not punished for the same offence within the meaning of Art. 54 CISA (Convention implementing the Schengen Agreement)  and the Art 50 EuGrCh (Charter of Fundamental Rights of the European Union) (both Articles relate to the”right not to be tried or punished twice in criminal proceedings for the same criminal offence resp. the ne bis in idem principle).

The 1st Strafssenat in Bamberg did not follow the 2nd Criminal Chamber. In contrast, it assumes that principally the right not to be tried or punished twice in criminal proceedings for the same criminal offence would apply BARAK case. However, the 1st Criminal Division has requested a preliminary ruling of the ECJ concerning the interpretation of Art. 55 ( 1) b) CISA regarding applying the criminal offence of § 129 dStGB in connection with Art. 52 of the European Charter of Fundamental Rights of the European Union regarding Art. 54 CISA and Art. 50 CFR.

The 1st Criminal Division in Bamberg primarily questions whether the right not to be tried or punished twice in criminal proceedings for the same criminal offence also applies to operators of vast criminal organizations like BARAKs. These dangerous criminal organizations are massive threats to the German nation’s security or other equally essential interests resp the German citizens. Such an exception for “ne bis in idem rule” application for massive threats to German citizens are contained in Article 55 (1) (b) of the CISA (Convention Implementing the Schengen Agreement).

Validity of the exception foreseen in Art. 55 (1) (b) CISA  results from Art. 52 (1) CFR, according to which restrictions to the prohibition of the “ne bis in idem rule” are made if they are necessary and correspond to the objectives serving the common good recognized by the Union or to the validated requirements of the protection of the rights and freedoms of others.

The preliminary ruling of the European Court of Justice on the Gal BARAK case is still pending.

 

Cybercrime in Europe

The number of cybercrime offences and the extent of the financial losses incurred by cybercriminal attacks has increased massively in recent years, certainly also driven by the pandemic. The individual European countries report double-digit growth rates in the number of reported cases and the extent of the damage caused.

Especially the cyber trading fraud cases (investment scams) like Gal BARAK are characterized by their large scale, many victims, particularly violent offences, supraregional and international connections, and high complexity.

The mafia-like organized tech-savvy criminal organizations work in a highly professional manner, and they commit illegal acts to gain power and unlimited financial resources. They spread their activities across several jurisdictions to avoid prosecution.

There is still far too little research on the economic and social effects of the increasing scale of cybercrime, but they are undoubtedly immense. Victims who are deprived of their life savings are often traumatized, withdraw from social activities, become depressed, need social treatment and financial support from the state. Old-age poverty, for many of the victims unimaginable before the fraud, becomes a reality with its accompanying adverse effects.

Cybercrime has thus indeed become a massive threat to social security and order in Europe.

The only insufficiently harmonized law enforcement in European countries is only starting to understand and address the cybercrime issue; any cross-border coordination still requires a massive administrative effort and leads to time delays. While cybercriminals communicate and orchestrate their criminal organization via Telegram or Signal, some prosecutors and courts in Germany still insist on a registered letter with an original signature for any communication with victims. Prosecutors in different European countries investigate the same fraud schemes uncoordinated, resulting in inefficiency and ineffectiveness.

So, leaving currently the European consumers and companies unprotected from the criminals and their evil raids.


The application of the “ne bis in idem rule” in this context

The transnational right not to be tried or punished twice in criminal proceedings for the same criminal offence rule in Art. 54 of CISA and Art. 50 CFR is based on the principle of mutual trust in a functioning criminal justice system of the single Member States and on the idea that in a single area of freedom, security, and justice, a criminal offence may be punished only once.

In reality, there is currently a massive lack of mutual trust in a functioning criminal justice system of the single Member States due to the apparent imbalance of power between cybercriminals and European law enforcement agencies.

The Criminal Senate in Bamberg argues that Art. 54 CISA is to be interpreted in the sense of Art. 3 (2) TEU, according to which the Union shall offer its citizens an area of freedom, security, and justice without internal frontiers, in which – in conjunction with appropriate measures, among other things, to prevent and combat crime – the free movement of persons is ensured.

According to Article 52 (1) of the EU Charter, restrictions to rights like the application of the  “ne bis in idem rule” may only be imposed if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.

The Criminal Senate in Bamberg sees such a necessity in  Gal BARAK´s case. The Senate argues that prosecution of criminal offences under Section 129 of the Criminal Code serves precisely, as the Senate states, the protection of public peace and security in the Federal Republic of Germany and thus, in any case, is required for the safety of the rights and freedoms of others.

We could not  agree more  with the German approach and can only urge the ECJ to be aware of the broader context of a decision in the BARAK case and to make a sage decision:

Applying the “ne bis in idem rule” for Gal BARAK  would destroy the already fragile trust of the citizens in Europe in a functioning criminal justice system in the European Union.

An adverse decision would be a solicitation to all the cybercriminals out there to even increase their activities in Europe  – as punishment  – in the rare case that law enforcement succeeds in getting hold of the scammers –  turns out to be a joke! 


Europe needs an efficient and effective prosecution against cybercriminals!

But even if the ECJ agrees with the criminal Senate in Bamberg – we hope the ECJ will  – still many questions will remain open: what about all the victims in the Netherlands, Sweden, Switzerland, Italy, Australia, and so on can they be included in the criminal proceedings in Germany? If YES, how can this be done? The German courts and the German prosecutors lack the administrative possibilities to administer thousands of people. If NO, how to explain to the Danish or the Swedish victims why their prosecutors do nothing and evidently, they do not have the right to get some justice. Or will the decision of the ECJ only be applicable for Germany?

So, what is the other planned approach of the European law enforcement agencies to end the inefficiencies through parallel proceedings against the criminal organizations and at the same time build efficient and robust law enforcement against cybercriminals?

It does not make sense and is highly inefficiently to do criminal proceedings in each European country. The European authorities should rush to come up with a solution. We are sure the criminals would have already developed a transnational approach for such an issue,  discussed via Telegram and implemented within weeks!

The German Vorlageantrag des OLG Bambergs 1. Strafsenat vom 04.06.2021 AZ: 1 Ws 283/21 is downloadable here.