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The Ne Bis in Idem Principle in the Interpretation of European Courts: Towards Uniform Interpretation

Published online by Cambridge University Press:  01 November 2012

Abstract

As a result of the extension of the jurisdiction of the Court of Justice of the European Union over the former third pillar (Police and Judicial Cooperation in Criminal Matters), several cases were referred to the Court for interpretation, inter alia, of the dispositions of the Schengen Convention dealing with criminal matters, especially the ne bis in idem principle. This principle was also addressed in the case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the Supreme Court of the United States. While addressing the problem at international level, this article focuses principally on the case law of the Court of Justice of the European Union and the European Court of Human Rights in the field of the ne bis in idem principle, concisely presenting the legal framework, findings of the Courts, and some conclusions on the interpretation of the principle. The study also analyses the absence of uniformity in interpretation and the use of different criteria in addressing identical situations by different courts, or even by the same court, concluding on a (seemingly) fortunate approximation in interpretation at European level.

Type
INTERNATIONAL LAW AND PRACTICE
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2012

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References

1 Vervaele, J. A. E., ‘Joined cases C-187/01 and C-385/01, ‘Criminal Proceedings against Hüseyin Gözütok and Klaus Brügge’, Judgment of the Court of Justice of 11 February 2003, Full Court [2003] ECR 1–5689’, (2004) 41 CMLR 795Google Scholar, at 802.

2 Article 4 of Protocol No. 7 to the European Convention of Human Rights provides as follows:

‘1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3. No derogation from this Article shall be made under Article 15 of the Convention.’

3 The ne bis in idem principle is drafted in Art. 14, para. 7 of the United Nations Covenant on Civil and Political Rights:

‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’

4 According to Article 50 of the Charter of Fundamental Rights of the European Union,

‘No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’

5 In the United States the double-jeopardy rule arises out of the Fifth Amendment to the Constitution:

‘nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb’.

6 Art. 8, para. 4 of the American Convention on Human Rights reads as follows:

‘An accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause.’

7 Art. 54 of the Convention Implementing the Schengen Agreement of 14 June 1985 (‘the CISA’) provides as follows:

‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

8 Art. 20 of the Statute of the International Criminal Court (2187 UNTS 90, entered into force July 1, 2002) establishes several rules regarding the principle:

‘1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.

2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.

3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.’

9 Several other European instruments expressly forbid international co-operation unless the ne bis in idem principle is respected. The European Convention on Extradition (1957) Art. 9, and its Second Protocol (1975), Art. 2; the European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990) Art. 18(1)e; the European Convention on the International Validity of Criminal Judgments (1970), Part III, Arts. 53–5; European Convention on the Transfer of Proceedings in Criminal Matters (1972), Part V, Arts. 35–7. For a detailed analysis see Weyembergh, A., ‘Le principe “ne bis in idem”: Pierre d'achoppement de l'espace pénal européen?’, (2004) 40 Cahiers de droit européen 341–2Google Scholar.

10 Zolothukin v. Russia, Decision of 10 February 2009, [2010] ECHR, at para. 79.

11 A.P. v. Italy, UN HRC CCPR/C/31/D/204/1986. See also Spinellis, D., ‘Global Report: The Ne Bis in Idem Principle in “Global” Instruments’, (2002) 73 International Review of Penal Law 1152Google Scholar.

12 See also Menéndez, A. J., ‘Chartering Europe: Legal Status and Policy Implications of the Charter of Fundamental Rights of the European Union’, (2002) 40 JCMS 482Google Scholar.

13 People v. O. J. Simpson (5 September 1995) Superior Court of the State of California, District 103, BA097211.

14 See, most recently, Storbråten v. Norway, Decision of 1 February 2007, [2008] ECHR, with further references.

15 See Haarvig v. Norway, Decision of 11 December 2007, [2008] ECHR; Rosenquist v. Sweden, Decision of 14 September 2004, [2005] ECHR; Manasson v. Sweden, Decision of 8 April 2003, [2004] ECHR; Göktan v. France, Decision of 2 July 2002, [2003] ECHR; Malige v. France, Decision of 23 September 1998, [1999] ECHR; Nilsson v. Sweden, Decision of 13 December 2005, [2006] ECHR.

16 The concept of ‘charge’ has to be understood within the meaning of the Convention. It may thus be defined as ‘the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’, a definition that also corresponds to the test whether ‘the situation of the [suspect] has been substantially affected’. See, for example, Deweer v. Belgium, Decision of 27 February 1980, [1981] ECHR para. 42 and 46; and Eckle v. Germany, Decision of 15 July 1982, [1983] ECHR, para. 73.

17 See Engel and Others v. The Netherlands, Decision of 8 June 1976, [1977] ECHR.

18 See Jussila v. Finland, Decision of 23 November 2006, [2007] ECHR, para. 38.

19 See, for example, Bendenoun v. France, Decision of 24 February 1994, [1995] ECHR, para. 47.

20 See Benham v. The United Kingdom, Decision of 10 June 1996, [1997] ECHR, para. 56.

21 See Bendenoun v. France case, supra, note 19, para. 47.

22 See Benham v. The United Kingdom, supra, note 20, para. 56.

23 See Öztürk v. Germany, Decision of 21 February 1984, [1985] ECHR, para. 53.

24 See, for example, Ravnsborg v. Sweden, Decision of 23 March 1994, [1995] ECHR, para. 38.

25 See Campbell and Fell v. The United Kingdom, Decision of 28 June 1984, [1985] ECHR, para. 72; Demicoli v. Malta, Decision of 27 August 1991, [1992] ECHR, para. 34.

26 See Jussila v. Finland case, supra note 18; and Ezeh and Connors v. The United Kingdom, Decision of 15 July 2002, [2003] ECHR.

27 Case T-276/04, Compagnie maritime belge v. Commission, [2008] ECR I, at 1277, para. 51.

28 Case T-99/04, AC-Treuhand v. Commission, [2008] ECR I, at 1501, para. 113.

29 This argument, however, is no longer valid. According to Art. 6(3) TEU, fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the member states, shall constitute general principles of the Union's law. Also, according to Art. 6(2) TEU, the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Even in present time the case law of the ECJ identifies the ECHR as a source of EU general principles. See in this regard, inter alia, Joined Cases C-74/95 and C-129/95 X [1996] ECR I, at 6609, para. 25, and Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v. Commission [2005] ECR I, at 5425, paras. 215–219.

30 Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P, and C-219/00 Aalborg Portland and Others v. Commission, [2004] ECR I, at 123, para. 200; Dansk Rørindustri and Others v. Commission case, supra note 29, paras. 215–223.

31 Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02, and T-136/02, Bolloré v. Commission, [2007] ECR II, at 947, para. 86.

32 Aalborg Portland and Others case, supra note 30, para. 64; and Case C-3/06 P Groupe Danone v. Commission, [2007] ECR I, at 1331, para. 68.

33 AC-Treuhand case, supra note 28, para. 113.

34 Compagnie maritime belge case, supra note 27, para. 66.

35 Case T-47/03, Sison v. Council, [2007] ECR I, at 1233, para. 101.

36 Council of the European Union, Framework Decision on prevention and settlement of conflicts of jurisdiction in criminal proceedings, 2009/948/JHA of 30 November 2009, JO L 328/42 from 15.12.2009, Explanatory Report, available online at http://register.consilium.europa.eu/pdf/en/09/st05/st05208-ad02.en09.pdf. The Framework Decision was due for implementation by 15 June 2012.

37 US v. Wheeler, 345 United States Reports 313 (1978). US courts have held that the dual-sovereignty rule operates to exclude double jeopardy protection in an international extradition context too (although such a case has never been addressed in the Supreme Court): see, e.g., US v. Rezaq, 134 Federal Law Reports 3d 1121, 1128 (DC Cir. 1998) (as noted in Blakesley, C. L., ‘Criminal Law: Autumn of the Patriarch: The Pinochet Extradition Debacle and Beyond – Human Rights Clauses Compared to Traditional Derivative Protections Such as Double Criminality’, 2000 91 Journal of Criminal Law & Criminology, 1, 49–50CrossRefGoogle Scholar.

38 Canadian Supreme Court, R. v. Van Rassel, [1990] 1 Supreme Court Reports (Can.) 225.

39 See Franz Fischer v. Austria, Decision of 29 May 2001, [2002] ECHR, para. 22; and Gradinger v. Austria, Decision of 23 October 1995, [1996] ECHR, para. 53.

40 Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Explanatory Report, para. 22, available online at http://conventions.coe.int/Treaty/en/Reports/Html/117.htm.

41 See, e.g., Nikitin v. Russia, Decision of 20 July 2004, [2005] ECHR, para. 37; and Horciag v. Romania, Decision of 15 March 2005, [2006] ECHR.

42 Nikitin case, supra note 41, para. 39.

43 Franz Fischer case, supra note 39, para. 29.

44 Zolothukin case, supra note 10, paras. 107–110.

45 Joined Cases C-187/01 and C-385/01, Hüseyn Gözütok and Klaus Brügge, [2003] ECR I, at 1345.

46 For the drafting of Art. 54 CISA, supra section 2.

47 Case C-469/03, Filomeno Mario Miraglia, [2005] ECR I, at 2009.

48 Case C-467/04, Gasparini and Others, [2006] ECR I, at 9199.

49 See, to this effect, Case C-436/04, Léopold Henri van Esbroeck, [2006] ECR I, at 2333, para. 34.

50 Case C-491/07, Vladimir Turanský, [2008] ECR I, at 11039.

51 Case C-297/07, Klaus Bourquain, [2008] ECR I, at 2245, paras. 18–25.

52 Even if the solution in Bourquain is correct in respect of the application of the ne bis in idem principle, the motivation obviously is less satisfactorily.

53 Gasparini case, supra note 48, paras. 27–37.

54 Blockburger v. United States, 284 U.S. 299 (1932).

55 Grady v. Corbin, 495 U.S. 508 (1990).

56 United States v. Dixon, 509 U.S. 688 (1993).

57 For a more detailed analysis, see Zolothukin case, supra note 10, paras. 42–44; see also Giannopoulos, J., ‘Recent Development: United States v. Dixon: The Double Jeopardy Clause and the Appropriate Test for Determining What Constitutes the Same Offense’, (1994) 20 Journal of Contemporary Law, 225Google Scholar; Barton, S., ‘Grady v. Corbin: An Unsuccessful Effort to Define “Same Offense”’, (1990) 25 Georgia Law Review, 143Google Scholar; Rodriguez, A. C., ‘Detaching Dual Sovereignty from the Sixth Amendment: Use of the Blockburger Offense Test Does Not Incorporate Double Jeopardy Doctrines’, (2007) 33 New England Journal on Criminal and Civil Confinement, 213Google Scholar; Padover, J., ‘The Constitutional Guarantee of Protection against Double Jeopardy Is Not Violated When a Defendant Is Convicted of, and Punished for, Separate Offenses That Contain Different Elements’, (2009) 40 Rutgers Law Journal, 969Google Scholar; Hicks, K. A., ‘Note: A Proposal for Legislative Effectuation of Double Jeopardy Protection’, (1990) 41 Hastings Law Journal, 669Google Scholar; Richardson, E. J., ‘Recent Development: Matching Tests for Double Jeopardy Violations with Constitutional Interests’, (1992) 45 Vanderbilt Law Review, 273Google Scholar; Thomas, G. C. III, ‘A Unified Theory of Multiple Punishment’, (1985) 47 University of Pittsburgh Law Review, 1Google Scholar; McCune, D., ‘Case Note: United States v. Dixon: What Does “Same Offense” Really Mean?’, (1995) 48 Arkansas Law Review, 709Google Scholar; Becker, G. E., ‘Recent Developments in Rico: Multiple Prosecutions and Punishments under Rico: A Chip off the Old “Blockburger”’, (1983) 52 University of Cincinnati Law Review, 467Google Scholar; Pamenter, K. A., ‘Case Comment: United States v. Dixon: The Supreme Court Returns to the Traditional Standard for Double Jeopardy Clause Analysis’, (1994) 69 Notre Dame Law Review, 575Google Scholar; McGee, R. L., ‘Note: Criminal Rico and Double Jeopardy Analysis in the Wake of Grady v. Corbin: Is This Rico's Achilles’ Heel?’, (1992) 77 Cornell Law Review, 687Google Scholar; Pace, K., ‘Fifth Amendment: The Adoption of the “Same Elements” Test: The Supreme Court's Failure to Adequately Protect Defendants from Double Jeopardy’, (1994) 84 Journal of Criminal Law & Criminology, 769Google Scholar; Amar, A. R., ‘Essay: Double Jeopardy Law Made Simple’, (1997) 106 Yale Law Journal, 1807CrossRefGoogle Scholar.

58 Loayza-Tamayo v. Peru, IACtHR, 17 September 1997, para. 66.

59 For a thorough analysis of the case law of the Court of Justice of the European Union in respect of the ne bis in idem principle see also Wasmeier, M., ‘The Principle of “ne bis in idem”’, (2006) 77 Revue internationale de droit pénal 121–30CrossRefGoogle Scholar; Nita, B., ‘Orzeczenia uruchamiające zakaz wynikający z zasady ne bis in idem w art. 54 konwencji wykonawczej z Schengen’, 2008 1 Przegląd prawa europejskiego i międzynarodowego 522Google Scholar; Sharpston, E. and Fernández-Martín, J. M., ‘Some reflections on Schengen free movement rights and the principle of “ne bis in idem”’, (2008) 10 Cambridge Yearbook of European Legal Studies 413–48CrossRefGoogle Scholar; V. C. Ramos, Ne bis in idem e União Europeia: contributo para a compreensão do fundamento valorativo e da vigência do princípio na União Europeia e para a interpretação da regra ‘ne bis in idem’ constante do artigo 54 da Convenção de aplicação do Acordo de Schengen (2009); B. van Bockel, The Ne Bis in Idem Principle in EU Law (2010); V. Mitsilegas, EU Criminal Law (2009), 143–53.

60 Aalborg Portland and Others case, supra note 30, para. 338.

61 Van Esbroeck case, supra note 49, para. 42.

62 Ibid., paras. 36–8, emphasis added. It is perhaps unfortunate that the neither the Court nor the Advocate General appear to have considered Aalborg Portland and Others in their examination of Van Esbroeck.

63 Case C-150/05, Jean Leon van Straaten, [2006] ECR I, at 9327, para. 53.

64 Van Straaten case, supra note 63, para. 53.

65 Gasparini case, supra note 48, para. 57.

66 Case C-288/05, Jürgen Kretzinger, [2007] ECR I, at 6641, para. 40.

67 Case C-367/05, Norma Kraaijenbrink, [2007] ECJ I, at 619, para. 36.

68 See Gradinger case, supra note 39, para. 55.

69 See Oliveira v. Switzerland, Decision of 30 July 1998, [1999] ECHR.

70 See Göktan case, supra note 15, para. 50.

71 This approach was also employed in the cases Gauthier v. France, Decision of 24 June 2003, [2004] ECHR, and Ongun v. Turkey, Decision of 10 October 2006, [2007] ECHR.

72 Franz Fischer case, supra note 39.

73 W.F. v. Austria, Decision of 30 May 2002, [2003] ECHR.

74 Sailer v. Austria, Decision of 6 June 2002, [2003] ECHR. The ‘essential elements’ criterion was also used and expanded upon in the Manasson case, supra note 15; Bachmaier v. Austria, Decision of 2 September 2004, [2005] ECHR; the Rosenquist case, supra note 15; the Storbråten and Haarvig case, supra note 15; Hauser-Sporn v. Austria, Decision of 7 December 2006, [2007] ECHR, Schutte v. Austria, Decision of 26 July 2007, [2008] ECHR; Garretta v. France, Decision of 4 March 2008, [2009] ECHR.

75 For an extensive analysis of the existing approaches and reasons for the proposed harmonization criteria, see Zolothukin case, supra note 10, paras. 70–84.

76 Ibid., paras. 82–84. See also Maresti v. Croatia, Decision of 25 June 2009, [2010] ECHR.

77 Gözütok and Brügge case, supra note 45, para. 48.

78 Kretzinger case, supra note 66, paras. 44–66.

79 The State may decide to issue an EAW for the enforcement of the penalty or may renounce to the enforcement of the penalty.

80 Bourquain case, supra note 51, para. 48.

81 According to chapter 11 of the Book of Genesis, a united humanity, speaking a single language and migrating from the East, took part in the building of the Tower of Babel after the Great Flood. The people decided their city should have a tower so immense that it would have its top in the heavens. However, the Tower of Babel was not built for the worship and praise of God, but was dedicated to the glory of man, with a motive of making a ‘name’ for the builders. God, seeing what the people were doing, came down and confounded their languages and scattered the people throughout the earth.

82 For a detailed analysis of the international dimension of the ne bis in idem principle, see Conway, G., ‘Ne Bis in Idem in International Law’, (2003) 3 International Criminal Law Review 217CrossRefGoogle Scholar, at 229–30.

83 Bantekas, I., ‘The Principle of Mutual Recognition in EU Criminal Law’, (2007) 32 ELR 365–85Google Scholar.

84 Van Esbroeck case, supra note 49, para. 35. The free movement of persons is considered to be a constitutional principle and the ECJ invoked the principle in several occasions to justify barring or continuing further prosecutions for the same acts. See in this respect Gözütok and Brügge case, supra note 45, para. 36; Miraglia case, supra note 47, para. 34; Gasparini case, supra note 48, para. 36; Van Straaten case, supra note 63, para. 46.

85 Zolothukin case, supra note 10, para. 78.

86 In this scenario, there might be an overlapping in jurisdiction between the two courts, the fundamental rights enshrined in the EU Charter of Fundamental Rights and the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms being basically the same. For more information on the relationship between the ECtHR and CJUE, see M.-L. Bemelmans-Videc, ‘Explanatory Memorandum, The Accession of the European Union/European Community to the European Convention on Human Rights’, Parliamentary Assembly, Council of Europe, 18 March 2008, at 9; F. G. Jacobs, ‘Contribution to the Report on The Accession of the European Union/European Community to the European Convention on Human Rights’, Parliamentary Assembly, Council of Europe, 18 March 2008, at 19; Matthews v. The United Kingdom, Decision of 18 February 1999, [2000] ECHR; Bosphorus Airlines v. Ireland, Decision of 30 June 2005, [2006] ECHR; Menéndez, supra note 12, at 482.

87 The latter opinion seems to be also favoured by the ECJ. See in this respect Van Straaten case, supra note 63, paras. 58–61.

88 Turanský case, supra note 50, para. 40. The Court held that in order to be considered as a final disposal for the purposes of Art. 54 of the CISA, a decision must bring the criminal proceedings to an end and definitively bar further prosecution. A decision which does not definitively bar further prosecution at national level under the law of the first contracting state which instituted criminal proceedings against a person cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the same acts against that person in another contracting state.