Ne Bis in Idem as a Defence Right and Procedural Safeguard in the EU

Date01 December 2011
Published date01 December 2011
DOI10.1177/203228441100200405
AuthorTeresa Bravo
Subject MatterAnalysis and Opinions
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 4, 2011 393
NE BIS IN IDEM AS A DEFENCE RIGHT AND
PROCEDURAL SAFEGUARD IN THE EU
T B*
ABSTRAC T
is paper will focus on th e ne bis in idem principle, in the AFSJ as a defenc e right and
argues that emancipating thi s principle from the conict of juri sdictions debate will
increase the status of de fence rights in the EU and enhance its dimens ion as a procedural
safeguard.
Article82(2), b) of the TFEU paves the way to harmonisation of procedural safeguards,
on an EU level, and can also be un derstood as a means to create a “common l egal
grammar” between Member States. C onsequently, European legislation regarding ne bis
in idem would not only bring legal certainty but it al so contributes to diminishing the
grounds of refusal a s far as mutual recognition legal ins truments are concerned .
e need for a deontic European model regarding de fence rights and procedural
safeguards is also in di scussion as it would ser ve as a counterweight between the t wo
dimensions of European integration, in the AFSJ: freedom and security.
Keywords: defence rights; ne bis in idem
1. NE BIS IN IDEM’s HISTORICAL BACKGROUND IN THE
EU
Focusing ne bis in idem as a transnationa l principle is an original a nd innovative
creation of Europe an integration.
In fact, ne bis in idem is rooted in domestic crimina l law – as a limit to a state’s
power to punish individuals. Historically, it is attached to a traditional model of
statehood and, on an internat ional level, it is unanimously accepted that t here is not a
ne bis in idem rule rega rded as ius cogens.
* Judge, Ph.D Candid ate, Faculty of Law, Universida de Nova de Lisboa.

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