Prosecuted in two countries for the same facts
Within the European area a person finally judged in one state cannot be prosecuted again in another for the same acts. The rule is real and it is applied, but two things about it are constantly misunderstood: what counts is the material facts and not the legal classification, and the first decision must genuinely be final.
Where the rule comes from
Two sources operate together. The Charter of Fundamental Rights of the European Union states the principle for the whole Union. The Schengen Convention states it in more operational terms and adds a condition: where a penalty has been imposed, it must have been enforced, be in the course of enforcement, or no longer be enforceable.
Italian law contains its own domestic version, barring a second prosecution for the same fact against the same person after a final decision. The domestic and the European rules do not have identical scope, and in a cross-border case both have to be checked.
"The same acts" means the facts
This is where most arguments are won or lost. The European case law looks at whether the material facts are the same — a set of concretely linked circumstances in time, space and subject matter — regardless of how each legal system labels them.
So a shipment charged as trafficking in one country and as importation in another can still be the same acts. Conversely, conduct that is genuinely distinct — a different consignment, a different period — is not the same acts merely because the offences carry the same name.
What counts as a final decision
| Decision | Bars a second prosecution? | Note |
|---|---|---|
| Conviction, final and enforced | Yes | Enforcement condition satisfied |
| Acquittal on the merits, final | Yes | |
| Discontinuance on the merits, definitively barring prosecution | Generally yes | Depends on its effect in that system |
| Case closed for lack of evidence, reopenable | Generally no | Not a final disposal |
| Penalty imposed but never enforced | Conditional | Enforcement condition under the Schengen rule |
| Administrative penalty of a criminal nature | Possibly | Substance prevails over the label |
The last line matters for financial cases, where a tax or market penalty imposed by an authority may be criminal in substance despite being administrative in form. Whether it bars a subsequent prosecution is assessed on criteria of substance, and it is a live argument rather than a settled one.
How the situation actually arises
Rarely as a formal second trial. It arises as a surrender request while proceedings are already running elsewhere, as an investigation opened in a second country over the same shipment or the same transfers, or as a person discovering that they have been convicted abroad for something already dealt with at home.
Where it arises in a surrender case, it is one of the mandatory grounds for refusing execution of a European Arrest Warrant, described in the guide on surrender. Where it arises as a second investigation, it must be raised in that investigation, with the foreign decision produced and translated.
What to do about it
- Obtain the first decision in full, with certification that it is final and evidence of enforcement.
- Have it translated properly: an uncertified translation is routinely rejected.
- Map the facts precisely — dates, places, consignments, transactions — because the comparison is factual.
- Raise it in both proceedings, not only in the one that seems more urgent.
- Where both cases are still live, consider whether coordination between the authorities is possible: European bodies exist to resolve conflicts of jurisdiction, and prosecutors do use them.
Frequently asked questions
Can I be tried twice in two EU countries?
Not for the same acts once a final decision exists in one of them, subject to the condition that any penalty has been enforced or is no longer enforceable.
What if the offences are named differently?
It makes no difference. The test is whether the material facts are the same set of concretely linked circumstances, not how each system classifies them.
Does a case closed for lack of evidence count?
Generally not, if it can be reopened. What matters is whether the decision definitively bars further prosecution in that system.
Does a tax penalty count as a first decision?
It may, where it is criminal in substance despite being administrative in form. It is assessed on criteria of substance and remains a contested area.
If a second case has opened
The comparison of the facts and the status of the first decision are the whole argument, and both take time to document. First contact is free and covered by professional privilege.