An interpretative analysis of the European ne bis in idem principle through the lens of ECHR, CFR and CISA provisions: Are three streams flowing in the same channel?
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/20322844231160246 |
| Author | Ger Coffey |
| Date | 01 September 2023 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2023, Vol. 14(3) 345–373
© The Author(s) 2023
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DOI: 10.1177/20322844231160246
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An interpretative analysis of the
European ne bis in idem
principle through the lens of
ECHR, CFR and CISA
provisions: Are three streams
flowing in the same channel?
Ger Coffey
School of Law, University of Limerick, Ireland
Abstract
The ne bis in idem principle (procedural defence) proscribes multiple criminal proceedings and
punishments for the same criminal offence/conduct, which is predicated on a final verdict of
acquittal or conviction by a court of competent jurisdiction. Incorporated as a fundamental human
right through Article 4 of Protocol No. 7 annexed to the ECHR and fundamental right safeguarded
through Article 50 CFR, the principle is conjoined with the right to free movement of persons
through Article 54 CISA. An evaluation of the characteristics, substance, rationale, scope, and
limitations associated with the autonomous procedural defence reveals corresponding purpose s.
CJEU and ECtHR jurisprudence have delineated the scope and limitations of the procedural defence
and the two European courts have reciprocally influenced their respective case law. De finitive and
practical judicial guidelines on the application of the principle facilitate consistency of approach by
diverse national legal systems consistent with the principle of legality. The article provides an
interpretative analysis of the procedural defence and associated jurisprudence of the two European
courts that aim to ensure consistency of approach by national legal systems notwithstanding the
applicability of the margin of appreciation and the principle of subsidiarity. The article concludes
with an evaluation of the narrow same criminal offence criterion (idem crimen) commensurate with
broader proscribed conduct (idem factum) criterion that is pivotal to the application of the
procedural defence and evidently the most litigated aspect of the ne bis in idem principle. The main
issue causing tensions between the different streams of case law seems to be the question of the
combination of distinct types of proceedings (administrative and criminal), and there is a reciprocal
influence of the ECHR and CJEU on this issue.
Corresponding author:
Ger Coffey, School of Law, University of Limerick, Castletroy, Limerick V94 T9PX, Ireland.
Email: ger.coffey@ul.ie
Keywords
Ne bis in idem, double jeopardy, procedural defence, criminal proceedings, criminal offence, criminal
punishment, administrative penalty, legal certainty, margin of appreciation, subsidiarity
Introduction
The ne bis in idem principle expressed as a procedural defence proscribes multiple criminal
proceedings and punishments based on a previous final decision (bis) concerning the same
person and the same offence/acts (idem).
1
At European level, the universally recognised
principle is codified through important human rights instruments
2
underpinned by the
principle of legal certainty.
3
Repeated ordeals in consequence of multiple criminal pro-
ceedings and multiple punishments exceeds the requirements of justice.
4
ECtHR and CJEU
judicial assessments of verdict finality (bis) are compounded by dual enforcement measures in
criminal proceedings and administrative proceedings (criminal in nature). Determinations of
the idem concept incorporates two distinct components, the factual circumstances sur-
rounding the proscribed conduct (idem factum) and legal characteristics (idem crimen)of
criminal offences.
The article examines the case law of the two European courts, legal frameworks and
conclusions on the interpretation of the principle through the lens of fundamental human rights
and free movement of persons in a European context. Mutual influences between the two
European courts are key to the analysis, which suggests lack of consistency in the interpretation
and diverse criteria employed in the application of the principle. The main parts of the article are
devoted to analysing in turn the respective case law of the ECtHR (Article 4 of Protocol No. 7
applicable intrastate) and the CJEU (Article 50 CFR and Article 54 CISA, both provisions
applicable interstate). ECtHR and CJEU jurisprudence has incrementally developed judicial
formulations on the scope of the principle, leaving to national court s the task of applying to
diverse legal traditions in terms that are compatible with ECHR, CFR and CISA provisions.
Although both European courts are influenced by different ideologies, judicial formulations
have fluctuated between the broader idem factum and narrower idem criminal assessments of the
same offence/acts. This oscillation between conceptual analyses has producedlegal uncertainty
concerning the parameters of the principle.
ECHR: Right Not to be Tried or Punished Twice
The principle was omitted from the assembly of internationally recognised fundamental rights
enshrined in the ECHR, and whereas the European Commission of Human Rights initially found the
1. Teresa Bravo, ‘Ne Bis in Idem as a Defence Right and Procedural Safeguard in the EU’(2011) 2 New J Eur Crim L 393.
2. John Verveale, ‘The TransnationalNe Bis in Idem Principle in the EU Mutual Recognition and Equivalent Protection of
Human Rights’(2005) 1 Utrecht L Rev 100; Alexander Poels, ‘A Need for Transnational Non Bis in Idem Protection in
International Human Rights Law’(2005) 23 Neth Q Hum Rts 329.
3. Juliette Lelieur, ‘Transnationalising Ne Bis in Idem: How the Rule of Ne Bis is Idem Reveals the Principle of Personal
Legal Certainty’(2013) 9 Utrecht L Rev 198.
4. Bas van Bockel (eds), Ne Bis in Idem in EU Law (Cambridge University Press 2016); Bas van Bockel, The Ne Bis in Idem
Principle in EU Law (Kluwer Law International 2010).
346 New Journal of European Criminal Law 14(3)
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