Criminal matters: transnational ne bis in idem in Europe—conflict of jurisdictions—transfer of proceedings

Abstract

The imperative “ne bis in idem”, i.e., not to be prosecuted twice for the same criminal act in the same area of law, is a principle of natural law at present inter alia binding all member states of the International Covenant on Civil and Political Rights (ICCPR) domestically pursuant to Art. 14(7). Therefore, it was merely being consistent to enshrine this principle in Art. 50 of the Charter of Fundamental Rights of the European Union (CFREU), when a single European Union area of justice was finally established by the Treaty of Lisbon. The author recalls the roots of this development and summarises the jurisprudence of the European Court of Justice on this principle of law. He also describes the environment in which this principle is working, as it cannot be seen in isolation; the advantages of the identification of parallel proceedings in concurring jurisdictions within the European Union and the necessity at times to transfer criminal proceedings in a fair procedure. The main goal is to identify the full scope of serious transnational crimes, to avoid impunity in whole or in part and at the same time to effectively safeguard the guarantee enshrined in Art. 50 of the Charter of Fundamental Rights of the European Union. This flows from the rationale that the division of labour in prosecuting crimes within the European Union must be neither to the advantage nor to the detriment of the alleged perpetrator. An ambitious goal indeed!