The non bis in idem Principle in the European Union Criminal Law
##plugins.themes.bootstrap3.article.main##
Abstract
The article launches the series of two articles linked by a common subjectmatter, i.e. the analysis of the regulation of the non bis in idem principle in the European Union (the EU) criminal law in order to elucidate the very essence of this regulation and the concept of the principle, to highlight the “added value” and the shortcomings of the regulation in question, and to assess the perspectives of the development. In this first article the authors analyse the relevant provisions of the Convention implementing the Schengen Agreement of 14 June 1985 (the CISA) and the case law of the Court of Justice of the European Communities (the Court).
While at the national level the non bis in idem principle is recognised as a fundamental principle of criminal law, its international application, whatever its importance from the point of view of human rights, is impeded by numerous obstacles, such as the jurisdictional considerations of the sovereign states, the lack of mutual confidence in foreign legal systems and the absence of common non bis in idem standards. Due to the decrease in the importance of these factors in the EU context, the establishment of the non bis in idem principle in the CISA seems to be the first successful attempt to “internationalize” this principle. While criticised for the application of some traditional restrictions (for example, the condition of enforcement and the possibility of “jurisdictional” derogations from non bis in idem rule), the current regulation of the principle affords a rather high level of protection. On the other hand, the broad application of the principle in the absence of common EU rules of jurisdiction in criminal matters may cause problems connected to an eventual justification of “accidental” or even “arbitrary” jurisdiction. However, until now the reform initiatives had not been successful.
After having examined the legislative basis of the non bis in idem principle set out in the CISA, the authors proceed to the analysis of the case law of the Court concerning its interpretation. Although not large (just 9 judgements yet), this case law is essential for the development of the non bis in idem rule at EU level. Non bis in idem is recognised by the Court as a general principle of the EU law. The application of this principle is not conditional upon the harmonisation or approximation of the criminal laws of the Member States. The States must have mutual trust in their criminal justice systems and each of them should recognise the criminal law in force in the other States even when the outcome would be different if its own national law was applied. Therefore, the Court, despite some resistance of the Member States, consequently takes a broad approach to the interpretation of the elements of the non bis in idem, which is based on the priority of the objective of Article 54 of the CISA, ensuring the right to freedom of movement in the non bis in idem relevant context, over the formal elements varying between the Member States.
The Court, thus, decided that the non bis in idem principle applies to certain procedures, whereby criminal proceedings are finally terminated by the prosecutor without the involvement of a court, once the accused has fulfilled certain obligations. The principle also applies in respect of an acquittal. The application of the principle is not likely to depend on whether the proceedings in the other Member State have involved the consideration of the merit of the case. However, the non bis in idem does not apply if due to such an application it would become impossible to actually penalise for an unlawful conduct in question in the Member States.
Concerning the most complicated element of the non bis in idem, i.e. the notion of the “same acts”, the Court had adopted the broad factual approach. The relevant criterion for the purposes of the application of the principle is the identity of the material acts understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification or the legal interest protected. However, the definitive assessment in this regard is a matter for the competent national courts which must determine whether the material acts constitute a set of facts which are inextricably linked together in time, in space and by their subject-matter. The variety of the situations where this criterion was applied by the Court is analysed in the second part of the article. The authors make an attempt to distinguish the specific features of the “same acts” in the context of the trans-European non bis in idem principle in comparison with the purely national context and identify the eventual impact of the application of the transnational non bis in idem rule to the qualification of the offences.
While at the national level the non bis in idem principle is recognised as a fundamental principle of criminal law, its international application, whatever its importance from the point of view of human rights, is impeded by numerous obstacles, such as the jurisdictional considerations of the sovereign states, the lack of mutual confidence in foreign legal systems and the absence of common non bis in idem standards. Due to the decrease in the importance of these factors in the EU context, the establishment of the non bis in idem principle in the CISA seems to be the first successful attempt to “internationalize” this principle. While criticised for the application of some traditional restrictions (for example, the condition of enforcement and the possibility of “jurisdictional” derogations from non bis in idem rule), the current regulation of the principle affords a rather high level of protection. On the other hand, the broad application of the principle in the absence of common EU rules of jurisdiction in criminal matters may cause problems connected to an eventual justification of “accidental” or even “arbitrary” jurisdiction. However, until now the reform initiatives had not been successful.
After having examined the legislative basis of the non bis in idem principle set out in the CISA, the authors proceed to the analysis of the case law of the Court concerning its interpretation. Although not large (just 9 judgements yet), this case law is essential for the development of the non bis in idem rule at EU level. Non bis in idem is recognised by the Court as a general principle of the EU law. The application of this principle is not conditional upon the harmonisation or approximation of the criminal laws of the Member States. The States must have mutual trust in their criminal justice systems and each of them should recognise the criminal law in force in the other States even when the outcome would be different if its own national law was applied. Therefore, the Court, despite some resistance of the Member States, consequently takes a broad approach to the interpretation of the elements of the non bis in idem, which is based on the priority of the objective of Article 54 of the CISA, ensuring the right to freedom of movement in the non bis in idem relevant context, over the formal elements varying between the Member States.
The Court, thus, decided that the non bis in idem principle applies to certain procedures, whereby criminal proceedings are finally terminated by the prosecutor without the involvement of a court, once the accused has fulfilled certain obligations. The principle also applies in respect of an acquittal. The application of the principle is not likely to depend on whether the proceedings in the other Member State have involved the consideration of the merit of the case. However, the non bis in idem does not apply if due to such an application it would become impossible to actually penalise for an unlawful conduct in question in the Member States.
Concerning the most complicated element of the non bis in idem, i.e. the notion of the “same acts”, the Court had adopted the broad factual approach. The relevant criterion for the purposes of the application of the principle is the identity of the material acts understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification or the legal interest protected. However, the definitive assessment in this regard is a matter for the competent national courts which must determine whether the material acts constitute a set of facts which are inextricably linked together in time, in space and by their subject-matter. The variety of the situations where this criterion was applied by the Court is analysed in the second part of the article. The authors make an attempt to distinguish the specific features of the “same acts” in the context of the trans-European non bis in idem principle in comparison with the purely national context and identify the eventual impact of the application of the transnational non bis in idem rule to the qualification of the offences.
##plugins.themes.bootstrap3.article.details##
Section
Articles
Authors contributing to Societal Sciences agree to publish their articles under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International Public Licence (CC BY-NC-ND), allowing third parties to share their work (copy, distribute, transmit) and to adapt it, under the condition that the authors are given credit, and that in the event of reuse or distribution, the terms of this licence are made clear.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
