Solutions to the accumulation of different penal responsibilities for the same act and their assessment from the perspective of the ne bis in idem principle

Published date01 September 2018
DOI10.1177/2032284418798054
Date01 September 2018
Subject MatterArticles
Article
Solutions to the
accumulation of different
penal responsibilities for
the same act and their
assessment from the
perspective of the ne
bis in idem principle
Anna Błachnio-Parzych
Koz
´min
´ski University, Poland
Abstract
The autonomous meaning of criminal responsibility introduced in the jurisprudence of the
European Court of Human Rights, and adopted by the European Court of Justice (ECJ), has
influenced the need for providing proper guarantees in relation to the assignment of legal
responsibility for acts situated outside the core of criminal law. It has also helped to clarify that if
the same act fulfils the description of a crime and an administrative offence, this may lead to an
accumulation of penal responsibility. Assuming that the coexistence of various types of crimes and
administrative offenses that may relate to the same act should not be eliminated, various legislative
directives have been adopted as solutions that help to avoid the negative consequences of the
accumulation of penal responsibility. Analysis of the directives adopted by the selected European
legislators leads to formulation of four basic models on which the directives are based. They are
assessed from the perspective of the ne bis in idem principle enshrined in Article 4 Protocol No 7
of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 50
of the Charter of Fundamental Rights of the European Union.
Keywords
Ne bis in idem, double punishment, human rights, concurrence of responsibility, accumulation of
penalties, penal responsibility, criminal charge
Corresponding author:
Anna Błachnio-Parzych, Associate Professor at Kozminski University, Criminal Law Department, Jagiellonska Street 57/59,
03-301 Warsaw, Poland.
E-mails: anna.blachnio-parzych@adwokatura.pl; ablachnioparzych@kozminski.edu.pl
New Journal of European Criminal Law
2018, Vol. 9(3) 366–385
ªThe Author(s) 2018
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DOI: 10.1177/2032284418798054
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Introduction
Criminal law is the domain in which legislators authorize states to use the most coercive measures
of punishment. Therefore, in relation to criminal responsibility, the highest procedural and sub-
stantive legal standards are required. However, legislators in many European countries have
developed another way of sanctioningbehaviour that they want to prevent. They introducesanctions
that are not formally classified ascriminal, but more often as administrative sanctions. Some of them
are so detrimental to the perpetrators of the acts that they raise questions about their real nature.
1
In
order to distinguish between responsibility that is formally criminal and the kinds of responsibility
that are situated outside criminal law but can be treatedas ‘criminal’ in the autonomous meaning of
the term, I use the term ‘penal responsibility’ instead of ‘criminal responsibility’.
2
There are many reasons for the development of administrative sanctions. One of them is the
need for a more efficient way to discourage and protect against undesirable and illegal behaviour.
Administrative sanctions are imposed by specialized administrative authorities which are more
competent in a specific area of law (e.g. the law of capital markets, competition law, telecommu-
nications law, environmental law).
3
This alternative to criminal law enforcement mechanisms
generates lower costs than criminal proceedings and relieves overburdened courts and prosecu-
tors.
4
The preference for administrative sanctions can also be justified by the reference to the
ultima ratio of criminal law. If the act does not require severe social and ethical disapproval, less
stigmatizing instruments can be introduced.
5
Last but not least, it must be borne in mind that the
European Union (EU) law has stimulated the development of administrative sanctions. Because
criminal law was an exclusive national field before the Lisbon Treaty, administrative sanctions
constituted the main instruments for the implementation of the EU law obligation to provide for
effective, proportional and deterrent sanctions.
6
As a result, the development of administrative
1. They blur the distinction between criminal law and administrative law and very often increase the scope of the criminal
justice system. See W. Huisman and M. Koemans, ‘Administrative Measures in Crime Control’, Erasmus Law Review
1(5) (2008), pp. 121–122; M. Faur´e and A. Gouritin, ‘Blurring Boundaries between Administrative and Criminal
Enforcement of Environmental Law’, in F. Galli and A. Weyembergh, eds., Do Labels Still Matter: Blurring Boundaries
Between Administrative and Criminal Law, The Influence of the EU. (Bruxelles: Institute d’etudes Europeennes 2014),
pp. 109–136; A. Bailleux, ‘The Fiftieth Shade of Grey: Competition Law, ‘‘Criministrative Law’’ and ‘‘Fairly Fair
Trials’’, in F. Galli and A. Weyembergh, eds., (n 1), pp. 137–152; M. Faure and G. Heine, ‘Summary of Country
Reports’, in M. Faure and G. Heine, eds., Criminal Enforcement of Environmental Law in the European Union (Hague:
Kluwer Law International, 2005), p. 22.
2. The criteria mentioned above were developed in the jurisprudence of the European Court of Human Rights (hereinafter
called the ECtHR), where the term ‘criminal’ used in Article 6 of the ECHR was identified. The judgment of the ECtHR
in the case of Engel and others v. the Netherlands (application No 5100/71, the ECtHR Judgment of 8 June 1976, section
80–82) became the milestone for the further jurisprudence of the ECtHR relating to the scope of the application of the
guarantees stipulated in Article 6 of the ECHR.
3. R.Widdershoven, ‘Encroachment of Criminal Law in Administrative Law in the Netherlands’, Electronic Journal of
Comparative Law 6 (2002), pp. 445–446.
4. Op.cit., (3)447; S. Raedschelders,‘Interrelations between Administrative and Criminal Sanctions in Environmental Law: New
Legislation and Actual Practice in Flanders’, Ninth International Conference on Environmental Compliance and Enforcement
617 (2011). Available at: http://inece.org/conference/9/proceedings/65_Raedschelders.pdf (accessed 6 March 2018).
5. A. De Moor-van Vugt, ‘Administrative Sanctions in EU Law’, Review of European Administrative Law 5(1) (2012),
p. 13; Op. cit., (4) 617, 620.
6. Op. cit., (5) 8; P. Caeiro, ‘The Influence of the EU on the ‘‘Blurring’’ between Administrative and Criminal Law’, in
F. Galli and A. Weyembergh, eds., Do Labels Still Matter: Blurring Boundaries Between Administrative and Criminal
Law, The Influence of the EU. (Bruxelles: Institute d’etudes Europeennes 2014) (n 1), pp. 177–178.
Błachnio-Parzych 367

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