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NE BIS IN IDEM1

Double jeopardy (autrefois acquit) or "not twice in the same": means that no legal action canbe instituted twice for the same cause of action for the same set of facts.

Ne bis in idem has as its objective the avoidance of double punishment, not of double

prosecution or investigation.

The concept is originally found in Roman law, but incorporated also in common law.

Rationale ofne bis in idem is manifold. It is for protecting citizen from punishment of state,

for providing fair trial and due law. It is also about res judicata; i.e. final judgement --hence

importance of legitimacy of the legal system of a sovereign state is protected by this principle.

Notice that ne bis in idem does not function when criminal proceedings were:

- conducted to shield a person from criminal responsibility (sham trial),

- not conducted independently and impartially in accordance with the norms of due

process recognized by international law.

The principle begins to apply with final conviction or acquittance; hence all means of appeal

and reviews should have been exhausted and all waiting times should have expired.

International Law:

The Council of Europe Convention of 15 May 1972 on transfer of Proceedings in Criminal

Matters Ar. 35-37 is about ne bis in idem.

European Charter of Fundamental Rights Ar 50 as well as Protocol 7 (Ar 4) to ECHR is about

ne bis in idem.

European Arrest Warrant Ar 30 is on ne bis in idem. In case of final judgement, the principle

ofne bis in idem leads to a mandatory ground for refusal.

Ar 14 (7) of the International Covenant on Civil and Political Rights guarantees the right to be

free from double jeopardy; however, it does not apply to prosecutions by two different

sovereigns (unless the relevant extradition treaty expresses a prohibition).

The Rome Statute of the International Criminal Court creates a different form of principle of

ne bis in idem. The ICC jurisdiction is complementary to national law, and Ar 20 specifies

that ICC can exercise jurisdiction where a person had been previously tried with sham trial.

Article 10 of ICTY Statute and Article 9 of ICTR Statute state that the non bis in idemprinciple can be enforced mainly to clarify that the ad hoc tribunal's sentences are "stronger"

than the ones in domestic courts. In other words, national courts cannot proceed against the

responsible parties of crimes falling in the tribunal's jurisdiction if the international tribunal

has already pronounced sentence for the same crimes.

1 First trial: bis, second trial: idem

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http://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rightshttp://en.wikipedia.org/wiki/Extradition_treatyhttp://en.wikipedia.org/wiki/Rome_Statute_of_the_International_Criminal_Courthttp://en.wikipedia.org/w/index.php?title=International_Criminal_Court_for_the_former_Yugoslavia&action=edit&redlink=1http://en.wikipedia.org/wiki/International_Criminal_Tribunal_for_Rwandahttp://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rightshttp://en.wikipedia.org/wiki/Extradition_treatyhttp://en.wikipedia.org/wiki/Rome_Statute_of_the_International_Criminal_Courthttp://en.wikipedia.org/w/index.php?title=International_Criminal_Court_for_the_former_Yugoslavia&action=edit&redlink=1http://en.wikipedia.org/wiki/International_Criminal_Tribunal_for_Rwanda

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However, ICTY and ICTR can judge alleged criminals already sentenced by national courts

if:

- the sentence defined the crimes as "ordinary", and

- the judiciary of the state is not considered impartial, the domestic trial is considered a

pretense to protect the accused from the legal action of international justice, or thedomestic trial is considered as not fair on some fundamental legal basis.

Schengen Agreement (CISA) Ar 54-58 are dedicated to ne bis in idem. This principle is

binding throughout the Schengen zone.

On February 11, 2003, the European Court of Justice gave its first ruling on the interpretation

of the Convention implementing the Schengen Agreement ("CISA").

The judgment was rendered after the national courts of Belgium and Germany requested a

preliminary ruling interpreting Article 54 of the Convention. The questions arose in two

separate criminal proceedings, one in Germany against Mr. Gztok for offenses committedin the Netherlands and one in Belgium against Mr. Brgge, for offenses committed in

Belgium. In both cases, the proceedings already brought against the two offenders had been

definitively discontinued by prosecutors in other Member States.

Interpreting the provision in question, which deals with the application of the ne bis in idemprinciple, the European Court of Justice held that "a person must be regarded as someone

whose case has been finally disposed of in relation to the acts which he is alleged to have

committed, even if no court has been involved in the procedure and the decision taken on the

conclusion of the procedure does not take the form of a judicial decision." The ECJ also

stated that a necessary implication of the principle is that the Member States have mutual trust

in each others criminal proceedings.

Gztok:

Mr Gztok, a Turkish national who had lived in the Netherlands for several years, was

suspected of the possession of illegal quantities of so ft drugs. In the course of searches of his

coffee- and teahouse in 1996, the Dutch police did indeed find several kilos of hashish and

marijuana.

The criminal proceedings against Mr Gztok were discontinued because he accepted a

financial transaction proposed by the Dutch Public Prosecutors Office, as provided for in

Article 74(1) of the Dutch Criminal Code: The Public Prosecutor, prior to the trial, may set

one or more conditions in order to avoid criminal proceedings for serious offences, excludingoffences for which the law prescribes sentences of imprisonment of more than six years, and

for lesser offences. The right to prosecute lapses when the conditions are met. Mr Gztok

paid the proposed sums of NLG 3,000 and NLG 750.

Mr Gztok subsequently drew the attention of the German authorities after a notification of

suspicious transactions by a German Bank to the German financial intelligence unit, which

had been set up in the framework of the EC obligations against money laundering.

The German authorities obtained further information concerning the abovementioned offences

from the Dutch authorities and decided to arrest Mr Gztok and to prosecute him for dealing

in narcotics in the Netherlands. In 1997, the District Court of Aachen in Germany convicted

Mr Gztok and sentenced him to a period of one year and five months imprisonment,suspended on probation.

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Both Mr Gztok and the Dutch Public Prosecutors Office appealed. The Regional Court of

Aachen discontinued the criminal proceedings brought against Mr Gztok inter alia on the

ground that under Article 54 of the CISA the German prosecuting authorities were bound by

the definitive discontinuance of the criminal proceedings in the Netherlands.

In a second appeal by the Public Prosecutors Office to the Higher Regional Court, the Court

decided to stay the proceedings and refer the matter to the ECJ for a preliminary ruling on thebasis of Article 35 EU Treaty.

Brgge:

Mr Brgge, a German national living in Germany, was charged by the Belgian prosecution

authorities with having intentionally assaulted and wounded Mrs Leliaert in Belgium, which

constituted a violation of several provisions of the Belgian Criminal Code.

Mr Brgge faced a double criminal investigation, one in Belgium and one in Germany. In the

Belgian criminal proceedings, the District Court had to deal with both the criminal and civil

aspects of the case, due to the fact that Mrs Leliaert, who became ill and unable to work

because of the assault, as a civil party claimed pecuniary and non-pecuniary damages.In the course of the proceedings before the District Court of Veurne in Belgium, the Public

Prosecutors Office in Bonn in Germany offered to Mr Brgge an out-of-court settlement in

return for payment of DEM 1 000, in line with Section 153a in conjunction with Paragraph

153(1), second sentence, of the German Code of Criminal Procedure. The District Court of

Veurne decided to stay the proceedings and refer questions to the ECJ for a preliminary ruling

on the basis of Article 35 EU Treaty.

Council Framework Decision (2009):

It is important to underline that a couple of days after the ECJ ruling in the Gztok andBrgge case Greece submitted a proposal for a framework decision on ne bis in idem with

the aim to establish common legal rules in order to ensure uniformity in both the

interpretation of those rules and their practical implementation.

The objective of the Decision is to promote closer cooperation between competent

authorities of member states conducting criminal proceedings, with a view to improving the

efficient and proper administration of justice and to prevent parallel proceedings on the same

facts for the same person.

When it is established that parallel proceedings exist, the competent authorities of member

states are obliged to enter into direct consultation to reach at a consensus on any effectivesolution. If consensus cannot be reached, Eurojust intervenes.

Ruotsalainen v. Finland

Jukka Ruotsalainen, is a Finnish national who was stopped by the police in January 2001

during a road check and was found to be driving with more leniently taxed fuel than the diesel

oil his van should have been running on.

Summary penal order proceedings were brought against him and he was fined 720 Finnish

marks ((FIM); the equivalent of EUR 121) for petty tax fraud. It was also noted that, the

applicant having admitted to refuelling the van himself, there had been a notion of intent

behind his offence. The applicant did not contest the fine and it therefore became final inMarch 2001.

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Administrative proceedings were also brought against Mr Ruotsalainen and in September

2001 he was charged the difference in tax. It was found that he had used his van with more

leniently taxed fuel without giving the Vehicle Administration or Customs prior notification

of that usage, the normal difference in tax charge was trebled to FIM 90,000 (the equivalent

of EUR 15,137).

The domestic authorities subsequently rejected both the applicants request for a reduction of

the tax charge and his appeal to have the decision overturned.

The European Court of Human Rights reiterated that the aim of Article 4 1 of Protocol No.

7 of ECHR was to prohibit the repetition of criminal proceedings that had been concluded by

a final decision.

The Court decided that both sanctions imposed on the applicant had been criminal in nature:

the first set of proceedings having been criminal according to the Finnish legal

classification; and, the subsequent set of proceedings, although classified as part of the fiscal

regime and therefore administrative, could not just be considered compensatory given that the

difference in tax charge had been trebled as a means to punish and deter re-offending, whichwere characteristic features of a criminal penalty.

Furthermore, the facts behind both sets of proceedings against the applicant had essentially

been the same: they both concerned the use of more leniently taxed fuel than diesel oil.

Accordingly, the Court concluded that there had been a violation of Article 4 of Protocol No.

7.

Mantello:

In 2005 Gaetano Mantello was convicted by the Tribunale di Catania (Catania District Court,

Italy) of unlawful possession of cocaine intended for onward sale. He subsequently served a

prison sentence of 10 months and 20 days.

In 2008, the court issued a European arrest warrant, alleging that between 2004 and 2005

Mantello had participated in organised drug trafficking in a number of Italian towns and in

Germany.

Towards the end of 2008, the German authorities having become aware of the arrest warrant

on the Schengen Information System (SIS), had Mr Mantello arrested. The Tribunale di

Catania in its capacity as the judicial authority which issued the arrest warrant informed

the Oberlandesgericht (Higher Regional Court) Stuttgart that the judgment delivered in 2005

was not a bar to executing the warrant.

In its ruling, the ECJ said that a national court of a EU Member State which issues a European

arrest warrant may declare that an earlier judgment given under its legal system does not

cover the same acts as those referred to in the arrest warrant. As a general rule, the judicial

authority which arrests the accused may not then refuse to surrender him.

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