Resolving Conflicts of Jurisdiction in Criminal Proceedings: Interpreting Ne Bis in Idem in Conjunction with the Principle of Complementarity
| Published date | 01 March 2013 |
| Author | Gerard Coffey |
| Date | 01 March 2013 |
| DOI | 10.1177/203228441300400105 |
| Subject Matter | Article |
New Journal of Eu ropean Crimina l Law, Vol.4, Issue 1–2, 2013 59
RESOLVING CONFLICTS OF JURISDICTION
IN CRIMINAL PROCEEDINGS:
INTERPRETING NE BIS IN IDEM IN
CONJUNCTION WITH THE PRINCIPLE
OFCOMPLEMENTARITY
G C*
ABSTRACT
e manner of establishing criminal jurisdiction by domestic courts of competent
criminal jurisdiction presents the most important aspect of the relation between states
and international tribunals. e analyses of the jurisprudence of international courts
and tribunals pertaining to the principle ne bis in idem has resulted in the conclusion
that this principle can be fully und erstood and applied in conjunction with the principle
of complementarity.
Keywords: ne bis in idem; complementarity; double jeopardy; positive/negative
con icts of cr iminal jurisdiction; tra nsnational crimes
1. INTRODUCTION
Criminal law is one of the most rapidly changing areas of EU law and integration
between Member States, and has been elevated to a central place in the European
Constitution by the Treaty of Lisbon within the dynamic area of freedom, security
and justice.1 In consequence of the extended scope and extraterritorial reach of
* Lecturer in L aw, Centre for Criminal Justice, Sc hool of Law, University of Limerick, Ireland. is
is a revised version of a p aper delivered at the WG Har t Legal Workshop on Globalisation, Criminal
Law and Crimina l Justice, Institut e of Advanced Legal Stud ies, University of London, June 2012.
1 See Klip (ed.), Substantive Criminal L aw of the European Union (Maklu Publi shers, 2011); Fletcher,
Loof and Gilmore , EU Criminal Law and Justi ce (Elgar, 2010); Mitsilegas, EU Crimin al Law (Hart,
2009); Mitsilegas, ‘European Criminal Law and Resista nce to Communautarisation a er Lisbon’
(2010) NJECL 458.
Gerard Co ey
60 Intersentia
national legal systems and technological advancements, national criminal justice
systems are becoming increasingly confronted with the dilemma where several
countries might have jurisd iction to investigate and prosecute the s ame or substantial ly
the same crime. In circumstances where several states might establish prosecutorial
jurisdiction for the sa me crime, or facts and circu mstances pertai ning to the planning
and commission of the crime, this state of a airs possibly will bring about positive
con icts of jurisdiction when two or more states assert criminal jurisdiction.
2
Conversely negative con icts of jurisdiction might arise when none of the states
concerned is will ing to investigate and prosecute the perpetrators3 and v indicate the
rights of victims.4
e article exam ines the body of case law on the ne bis in idem principle concern ing
the substance, rationa le, scope, elements of, as well as the exceptions to, t he procedural
defence.5 It posits that the principles of ne bis in idem and complementarity requires
the EU legislator to lay down de nitive rules to resolve con icts of jurisdictions in
criminal matters and necessitates proper guidelines from international courts,
tribunals and relevant EU level bodies on dispute mechanism procedures while
respecting due process rights of defendants. Given the promotion of victims rights,
the aims of conviction and punishment of o enders and same crime dilemma, the
2 e dilemm a pertains to situations where t he planning and commis sion of crimes transgress t he
territory of se veral nation-states, or the e ects of a cri me are impacted in the territor y of several
states, or where serious crimes are b eing committed in a state but the nat ionality or place of
residence of the perp etrators or victim s points to another EU Member State .
3 e Hague Progra mme ( e Hague P rogramme: Strengthe ning Freedom, Secur ity and Justice in the
European Union) 2005/C53/01, OJ C 53/1, requires Member States to enact legislat ion managing
con icts of juris diction, wit h the aim of incre asing the e c ien cy of pr os ecu tio ns w hi le g ua ra nte ein g
the proper administration of justice, in order to complete the comprehensive programme of
measures designed to implement the principle of mutual recogn ition of judicial decisions in
criminal matters. Approximation of the criminal laws of Member States will have a signi cant
impact on Member States’ legal cultu res and traditions and on nationa l sovereignty. e Hague
Programme v iews such approximation as bei ng necessary only if it f acilitates mutual rec ognition.
However, the more progress th at is made on developing the mutual recog nition programme, the
greater the need w ill be for a mini mum standard acros s the EU of procedures in t he legal processes
for which mutual rec ognition will be cla imed. Approximation of cri minal laws is necessar y to not
only facilitate mutual trust and justify mutual recognition but als o to protect the rig hts of the
individuals a ected. Se e Weyembergh, ‘Approximation of Crimi nal Laws, the C onstitutiona l Treaty
and the Hague P rogramme’ (2005) 42 CML R ev 1567.
4 e Stock holm Programme 2010–2014 (An Open and Secure Europe Se rving and Protecting C itizens)
2010/C 115/01, stipulates for a n integrated and co-ordin ated approach to victims of cri me, which
necessitates the Commission and EU Member States to examine how to improve legislative
resolution in this area. To reinforce existing national and EU measures on victims’ rights, the
Commission adopte d a package of legislative proposa ls that a rst s tep towards putting vict ims at
the heart of the crimina l justice agenda of the EU. See Wieczorek, ‘A Needed Balance between
Security L iberty and Justice: Positive Sig nals Arrive from the Field of Vict im’s Rights’ (2012) 2
EuCLR 141; W ieczo rek, ‘ e New Propos al on Victims’ Rights : Law Enforcement Concerns or the
Safegua rd of the Rights of the Ind ividuals?’ (2011) NJECL 343.
5 Cf. Neagu, ‘ e Ne Bis in Idem Principle i n the Interpretat ion of European Cour ts: Towards Uniform
Interpretation’ (2012) 25 Leiden Jo urnal of Internation al Law, 955.
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