As of March 23, 2023, the European Court of Justice published its judgment in the case GAL BARAK against the Bamberg public prosecutor´s office (Case C-365/2). The court ruled in favor of the German authority. In addition, the European court provided the German court with elements of interpretation of EU law in the context of the assessment of the identity of the acts with the ne bis in idem rule. The Court ruled that as the Austrian decision was based on acts of fraud committed against solely Austrian victims and not of those that were detrimental to persons residing in Germany it cannot be concluded that the earlier Austrian decision related to the same facts and so the “idem” requirement is not fulfilled.
With the European Court of Justice providing this interpretation, this ruling becomes a landmark decision in the fight against cybercriminals in Europe.
On 1 September 2020, Gal BARAK, convicted by an Austrian court of aggravated commercial fraud and money laundering, was sentenced for four years´imprisonment.
The indictment of Gal BARAK was established on the basis solely of the acts of fraud committed against injured parties residing in Austria. Also Marina BARAK (BARAK´s wife) was charged and was acquitted (an outstanding disgrace for the Austrian justice system) only for the crime against Austrian victims.
After serving part of this prison sentence and having the remainder suspended, Gal BARAK was taken into Austrian custody pending surrender based on a European Arrest Warrant issued against him by a German court in December 2020 for the formation of a criminal organization and investment fraud. In a decision issued in March 2021, Gal Barak`s appeal against the European Arrest Warrant was dismissed on the grounds that the facts of the two proceedings were different so that the ne bis in idem principle laid down in the CISA (Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic) did not apply. In the alternative, it was pointed out that Gal BARAK (and also Marina BARAK ) was being prosecuted for an offense that was covered by the declaration made by the Federal Republic of Germany when ratifying the Schengen Convention. Based on this declaration, the German state would not not bound by the ne bis in idem principle if the act on which the foreign judgment was based constituted an offense directed against its security or other equally essential interest (pls refer to Art. 55 para. 1 letter b SDÜ).
In those circumstances, the German court hearing the further appeal against that order seeked to ascertain whether the possibility afforded to Member States in the CISA to make such a declaration is compatibel with Article 50 of the Charter of Fundamental Rights of the European Union (“the Charter”), which enshrines the ne bis in idem principle. If this is the case, it raised the question of whether the declarartion can also cover cirminal organisations that only engage in propery crime.
Stressing the importance of the ne bis in idem principle!
In its discussion of the case the court stresses that the ne bis in idem principle is a fundamental principle of EU law.
Article 50 of the Charter provides 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’. Thus, the application of the principle ne bis in idem is subject to a twofold condition, namely, first, that there must be a prior final decision (the ‘bis’ condition) and, second, that the prior decision and the subsequent proceedings or decisions must concern the same facts (the ‘idem’ condition) (judgment of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 28).
In that regard, it must be stated that the ‘idem’ condition requires that the material facts be identical. Consequently, the principle ne bis in idem is not intended to be applied where the facts at issue are not identical, but merely similar (see, to that effect, judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 129 and the case-law cited).
Yet, as the Court has made clear, identity of the material facts is understood to mean a set of concrete circumstances stemming from events which are, in essence, the same, in that they involve the same perpetrator and are inextricably linked together in time and space (judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 130 and the case-law cited).
Not the same material facts!
In principle the relevant court, which alone has jurisdiction to rule on the facts has to determine whether the acts which are the subject of the prosecution at issue in the main proceedings are the same as those in respect of which final judgment has been passed.
That being so, the European Court provided the German court with elements of interpretation of EU law in the context of the assessment of the identity of the acts (judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 133 and the case-law cited).
The Court explained that, in order to determine whether the dispute pending it is covered by the principle ne bis in idem, the German court will need to assess, in particular, to what extent the sentence already handed down to the applicant in the main proceedings by the Landesgericht Wien (Regional Court, Vienna) was imposed on the basis of the same acts as those of which he is accused under the European arrest warrant issued by the Amtsgericht Bamberg (Local Court, Bamberg), or, as was raised in particular at the hearing before this Court, on the basis solely of the acts of fraud committed against the injured parties residing in Austria, and not of those that were detrimental to persons residing in Germany. In the second of those two scenarios , it cannot be concluded that the earlier definitive Austrian decision concerning the applicant in the main proceedings related to the same acts as those covered by the prosecution brought against him in Germany. At most, that earlier decision might be considered to have related to similar acts, which, however, is not sufficient for the ‘idem’ condition to be regarded as being satisfied.
The assessment by the Court of Justice for the prelminary ruling requested!
The Court answered both questions raised by the German court in the affirmative.
As of March 23, 2023 the European Court of Justice published its judgment in the case GAL BARAK against the Bamberg public prosecutor´s office (Case C-365/2. The court ruled in favor of the German authority. In addition, the court gave some important rulings on how the ne bis in idem principle have to be interpreted by the competent courts. So this judgment turns out to be landmark decision in the fight against the cybercriminals in Europe.
Still some issues to understand that cybercrime is a big threat for the society!
It is evident that The European Court still has to understand the meaning of the cybercriminal attacks to the society. In para 82 the Court explains that they are not sure that Barak´s criminal organization despite the extent of the pecuniary damage suffered by the injured persons, would have had the effect of causing damage to the Federal Republic of Germany itself, with the result that the acts of the said criminal organization do not appear to fall within the category of offences directed against the security of the State or other of its equally essential interests. But regarding this the European Court leaves it to the the German court to ascertain and we are sure that Mr. Goldbeck, the German prosecutor in charge will be quite able to explain why cybercrime affects national security.
Welcome back to the European courts!
During the past years, the number of online fraud indictments and criminal proceedings in Germany and Austria increased drastically. And it became familiar to the scammers to engage – like GAL BARAK did – the most expensive lawyers in town instruct them to settle with the national victims named in the indictments (i.e., only the national victims), thereby avoiding or reducing jail time in Austria/Germany (as there are no victims any more).
When we (EFRI) approached the scammers´ lawyers also asking for refunds of victims based in other European countries, we were just denied anything by explaining that due to the ne bis idem principle, no further proceedings in other European countries are possible. So they told us to go to hell.
We learned that Gal BARAK is even advising the others scammers how to handle to be indicted with European courts and to get away.
So the definite interpretation of the European Court of Justice that scammers can be tried in all European countries in case they have defrauded victims in all these countries has the potential to become an actual landmark decision in the fight against cybercrime.