A Need for Transnational Non Bis in Idem Protection in International Human Rights Law
| Author | Alexander Poels |
| Published date | 01 September 2005 |
| DOI | 10.1177/016934410502300302 |
| Date | 01 September 2005 |
| Subject Matter | Part A: Article |
A NEED FOR TRANSNATIONAL
NON BIS IN IDEM
PROTECTION IN
INTERNATIONAL HUMAN RIGHTS LAW
ALEXANDER POELS*
Abstract
Although safeguards for the individual human right guarantees for protection against double
jeopardy are strongly entrenched in international and domestic law as well as widely reflected in
State practice, such protection is generally limited in scope and applicability to surrender or
extradition procedures. Where criminal offenders face courts of a State after having been
prosecuted and punished or acquitted by a court of another State, the absence of transnational
non bis in idem protection constitutes a serious lacuna in international human rights law.
Although legislative and judicial initiatives are being undertaken – notably under the aegis of
the European Union – to remedy this lacuna, the international community must incontestably
act upon this need for individuals’ protection against abuses of power and breaches of due
process through the amendment or complementing of the classical international human rights
conventions.
1. INTRODUCTION
The non bis in idem principle seeks to ensure that an accused person is not tried and
punished more than once for the same criminally punishable conduct: the principle
of non bis in idem presupposes the meeting of the following three conditions: identity
of the parties, identity of the purpose and identity of the subject-matter.
1
Also
referred to as the res iudicata (pro veritate habetur) rule in numerous European legal
systems, as the principle of protection against double jeopardy in common law
jurisdictions, as the autrefois convict – autrefois acquit rule in the United Kingdom and
PART A: ARTICLES
Netherlands Quarterly of Human Rights, Vol. 23/3, 329-347, 2005.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 329
* LL.B. (Catholic University Leuven, Belgium, 2000), LL.M. (Catholic University Leuven, Belgium,
2003), LL.M. in International Environmental Law (Ha´sko´liI
´slands, Reykjavik, 2004). The author
gratefully acknowledges comments received by Professor Bjo
¨rg Thorarensen (Ha´sko´li I
´slands,
Reykjavik). This article was completed on 27 July 2005. The author currently works as assistant-
attorney at Peterka & Partners Law Offices, Bratislava. The author can be reached at
alexanderpoels@yahoo.com and poels@cabinet.sk. The views and positions taken in this article
solely reflect the author’s views and positions and are not necessarily shared by the above-
mentioned universities or law offices.
1
Report of the Working Group on Arbitrary Detention, established by Resolution 1991/42 of the
Commission on Human Rights, at its 26th, 27th and 28th sessions, held in November/December
1999, May 2000 and September 2000, respectively.
330
many African legislations, or as the German and Austrian Erledigungsprinzip,
2
the
right of protection against multiple trials and sentences that belongs to each
individual regardless of the jurisdiction he is subjected to and regardless of the
circumstances of committal of the criminally punishable conduct, is a deep-rooted
general legal principle of criminal (procedural) law in most national legal systems,
and has indeed attained a strong status as a universally accepted fundamental
human right in international law.
Notwithstanding the undeniably strong status of the non bis in idem principle in
domestic laws, as well as in international human rights and criminal law instruments,
it remains highly doubtful whether the current scope of the principle is broad
enough to avert all forms of multiple trail and punishment, and notably whether the
current application and interpretation of the non bis in idem principle is a satisfactory
safeguard against double jeopardy on a transnational level, i.e. between different
State jurisdictions. It is in the light of this uncertainty that – while acknowledging
that an analysis of the technical and pragmatic aspects of the non bis in idem rule
exceeds by far the scope of this article and while in particular refraining from
examining how the non bis in idem rule differs from the ‘Connelly-principle’ and the
‘Elrington-principle’ in English law
3
– the transnational scope of the non bis in idem
principle will be exposed in the present article, especially in the context of domestic
and international law and the currently existing international human rights
instruments.
2.
NON BIS IN IDEM
PROTECTION IN DOMESTIC AND
INTERNATIONAL LAW
2.1.
Non bis in idem
Protection in Domestic Law
The non bis in idem principle is deeply engrained in most domestic criminal (and
administrative) law systems throughout the world. Although oft incontrovertibly
constituting a basic general principle of law, national legislators nonetheless
generally deem a formal legislative guarantee against double jeopardy as a
fundamental human right that requires safeguarding through express stipulation
in criminal, administrative and disciplinary law codes. Not only has the rule of non bis
Alexander Poels
2
Edwards, E., Comparative Criminal Procedure Law, Ashforth Legal Books, Houston, 2001; Van Den
Wyngaert, C., Criminal Procedure Systems in the European Community, Bruylant Publishings, Brussels,
1993, pp. 3-7; Mayr, C., Der ra
¨umliche Geltungsbereich des O
¨sterreichischen Strafrecht, unter besonderer
Beru
¨cksichtigung des Grundsatzes ‘ne bis in idem’ im internationalem Rechtsbereich [The geographical
applicability of the Austrian criminal law, and in particular of the fundamental principle of ‘ne bis in
idem’ in the international legal sphere], Granauch Verlag, Vienna, 2000.
3
Under the Connelly-principle, the burden of proof that lays on the defendant pursuant to the
autrefois convict –autrefois acquit is reversed in the sense that the defendant is protected by the
presumption that the proceedings should be stayed in the absence of ‘special circumstances’ to
justify them. The Elrington-principle differs from the Connelly-principle in that the effect of the
presumption in favour of a stay of proceedings is even longer when the second charge does not
merely arise out of the same facts but is an aggravated form of the first charge for which the
defendant was previously convicted.
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