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The Guarantee of the Principle of 'ne bis in idem' within the Area of Freedom, Security and Justice

Mildebrath, Christina (2009)
Department of Law
Abstract
The principle of ne bis in idem is one of the fundamental principles recognizing human dignity in criminal procedures. The principle's objective is to convey legal certainty to the individual. It aims to ensure this by prohibiting 'double jeopardy', i.e., an individual cannot be subjected to criminal proceedings more than once for one and the same - allegedly criminal - conduct after one proceeding has already been terminated. The principle of ne bis in idem is closely related to the principle of res iudicata which ensures the avoidance of 'double jeopardy' in the interest of the state executing jurisdiction. Thereby the objective of the principle of res iudicata is to underpin trust in the respective state's judicial system. In... (More)
The principle of ne bis in idem is one of the fundamental principles recognizing human dignity in criminal procedures. The principle's objective is to convey legal certainty to the individual. It aims to ensure this by prohibiting 'double jeopardy', i.e., an individual cannot be subjected to criminal proceedings more than once for one and the same - allegedly criminal - conduct after one proceeding has already been terminated. The principle of ne bis in idem is closely related to the principle of res iudicata which ensures the avoidance of 'double jeopardy' in the interest of the state executing jurisdiction. Thereby the objective of the principle of res iudicata is to underpin trust in the respective state's judicial system. In combination, those two principles balance the idea of ius puniendi, the power to enact jurisdiction and carry out punishments, in modern societies and sovereign states the respective state's monopoly. In a globalizing world, however, more than one state may feel a certain conduct touches its legitimate interests and contradicts its legal order. Hence, it becomes ever more vital to ensure the principle of ne bis in idem in so called transborder circumstances. Within the European Union, having abolished internal border controls to further the objective of freedom of movement and gradually transgressing into an area of freedom, security and justice, addressing this issue appropriately, is even more urgent. Already the Convention implementing the Schengen Agreement (CISA), the provisions of which became part of Union law by the Treaty of Amsterdam, does not only apply itself to address criminality but also aims to transborderly ensure such a fundamental civil right as the principle of ne bis in idem. Additionally, with the Treaty of Lisbon, which will 'communitarize' all matters relating to the area of freedom, security and justice, the Charter of Fundamental Rights will enter into force, recognizing as well the transborder applicability of the principle of ne bis in idem. The ECHR, in Article 4 of its Protocol no. 7, on the other hand, recognizes the principle of ne bis in idem only in a national context. Nonetheless, its interpretation by the European Court of Human Rights (ECtHR) serves as guidance for the European Court of Justice (ECJ) in interpretating the transborder ne bis in idem ensured in the Union instruments. Scrutinizing the interpretations given by the ECtHR renders obvious that the idea of ne bis in idem is to prohibit the possibly 'endless' threat of being exposed to consecutive and repeated criminal proceedings. It does not intend to keep the state enacting its ius puniendi from considering a conduct on account of different legal provisions - provided the essential elements differ. Consequently scrutinizing the ECJ's jurisdiction, it becomes clear that the ECJ does not take sufficient account of this idea. Rather it links the principle of ne bis in idem to the idea of free movement of the - alleged - suspect in that it prohibits any second institution of criminal proceedings if the existence of ''a set of concrete circumstances [...] which are inextricably linked together,' can be established. This interpretation, however, falls short of two essential aspects. First, it does not take into consideration that within the area of freedom, security and justice all these three objectives weigh alike, a consideration which will become even more vital upon the entering into force of the Treaty of Lisbon and the 'communitarization' of all matters related to the development of that area. Within such an area of [...] justice, the idea of material justice should prevail. Therefore, the objective is not to be charged on less accounts - due to variations in the criminal laws of the Member States -, but rather not to be charged several times - on the same essential elements. The outcome is no different having regard to the ECtHR's jurisdiction, since that, though applicable only to a national scope, it does not prevent either the state in question to consider an - allegedly criminal - conduct in all its legal dimensions. Second and having a detrimental effect on the individual concerned, the interpretation given by the ECJ neglects the character of the principle of ne bis in idem as a subjective individual right eo ipso. This shortage provokes the missing qualification of the transborder ne bis in idem as a right invokeable by the individual. Though the principle, even in its transborder quality, has to be respected by the EU Member States' judicial authorities, which might refer to the ECJ for a preliminary ruling on its interpretation, no way is open for the individual concerned to himself claim its violation before the ECJ. (Less)
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author
Mildebrath, Christina
supervisor
organization
year
type
H2 - Master's Degree (Two Years)
subject
keywords
International Human Rights Law
language
English
id
1555403
date added to LUP
2010-03-08 15:23:39
date last changed
2010-03-08 15:23:39
@misc{1555403,
  abstract     = {The principle of ne bis in idem is one of the fundamental principles recognizing human dignity in criminal procedures. The principle's objective is to convey legal certainty to the individual. It aims to ensure this by prohibiting 'double jeopardy', i.e., an individual cannot be subjected to criminal proceedings more than once for one and the same - allegedly criminal - conduct after one proceeding has already been terminated. The principle of ne bis in idem is closely related to the principle of res iudicata which ensures the avoidance of 'double jeopardy' in the interest of the state executing jurisdiction. Thereby the objective of the principle of res iudicata is to underpin trust in the respective state's judicial system. In combination, those two principles balance the idea of ius puniendi, the power to enact jurisdiction and carry out punishments, in modern societies and sovereign states the respective state's monopoly. In a globalizing world, however, more than one state may feel a certain conduct touches its legitimate interests and contradicts its legal order. Hence, it becomes ever more vital to ensure the principle of ne bis in idem in so called transborder circumstances. Within the European Union, having abolished internal border controls to further the objective of freedom of movement and gradually transgressing into an area of freedom, security and justice, addressing this issue appropriately, is even more urgent. Already the Convention implementing the Schengen Agreement (CISA), the provisions of which became part of Union law by the Treaty of Amsterdam, does not only apply itself to address criminality but also aims to transborderly ensure such a fundamental civil right as the principle of ne bis in idem. Additionally, with the Treaty of Lisbon, which will 'communitarize' all matters relating to the area of freedom, security and justice, the Charter of Fundamental Rights will enter into force, recognizing as well the transborder applicability of the principle of ne bis in idem. The ECHR, in Article 4 of its Protocol no. 7, on the other hand, recognizes the principle of ne bis in idem only in a national context. Nonetheless, its interpretation by the European Court of Human Rights (ECtHR) serves as guidance for the European Court of Justice (ECJ) in interpretating the transborder ne bis in idem ensured in the Union instruments. Scrutinizing the interpretations given by the ECtHR renders obvious that the idea of ne bis in idem is to prohibit the possibly 'endless' threat of being exposed to consecutive and repeated criminal proceedings. It does not intend to keep the state enacting its ius puniendi from considering a conduct on account of different legal provisions - provided the essential elements differ. Consequently scrutinizing the ECJ's jurisdiction, it becomes clear that the ECJ does not take sufficient account of this idea. Rather it links the principle of ne bis in idem to the idea of free movement of the - alleged - suspect in that it prohibits any second institution of criminal proceedings if the existence of ''a set of concrete circumstances [...] which are inextricably linked together,' can be established. This interpretation, however, falls short of two essential aspects. First, it does not take into consideration that within the area of freedom, security and justice all these three objectives weigh alike, a consideration which will become even more vital upon the entering into force of the Treaty of Lisbon and the 'communitarization' of all matters related to the development of that area. Within such an area of [...] justice, the idea of material justice should prevail. Therefore, the objective is not to be charged on less accounts - due to variations in the criminal laws of the Member States -, but rather not to be charged several times - on the same essential elements. The outcome is no different having regard to the ECtHR's jurisdiction, since that, though applicable only to a national scope, it does not prevent either the state in question to consider an - allegedly criminal - conduct in all its legal dimensions. Second and having a detrimental effect on the individual concerned, the interpretation given by the ECJ neglects the character of the principle of ne bis in idem as a subjective individual right eo ipso. This shortage provokes the missing qualification of the transborder ne bis in idem as a right invokeable by the individual. Though the principle, even in its transborder quality, has to be respected by the EU Member States' judicial authorities, which might refer to the ECJ for a preliminary ruling on its interpretation, no way is open for the individual concerned to himself claim its violation before the ECJ.},
  author       = {Mildebrath, Christina},
  keyword      = {International Human Rights Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {The Guarantee of the Principle of 'ne bis in idem' within the Area of Freedom, Security and Justice},
  year         = {2009},
}