Građansko i krivično pravo na granici oduzimanja imovinske koristi i imovinskopravnog zahteva

Background: The principle ne bis in idem is a traditional principle relevant to criminal proceedings in European states. While in the past, crime had a primarily national dimension, these days, it has an international dimension as well. The Europeanisation of law also occurred in criminal law, including criminal proceedings. Thus, an understanding of ne bis in idem as a modern guarantee involving the international dimension is needed. Methods: The basic sources used for the elaboration of the paper are scholarly sources (monographs, textbooks, studies, and scientific papers, etc.), legislative instruments (international agreements, etc.), and case-law (of the European Court of Human Rights and the Court of Justice of the European Union). The materials used here also include the available explanatory memorandums. The author uses traditional methods of legal scientific (jurisprudential) research – general scientific methods as well as special methods of legal science (jurisprudence). The general scientific methods used in the paper are predominantly logical methods, namely, the method of analysis, the method of synthesis, and the method of analogy, as well as the descriptive method. The descriptive method has been used to familiarise the reader with the current legal regulation of ne bis in idem. The method of analysis has been used as regards relevant provisions and case-law. The method of synthesis has also been used, as has the method of analogy. The special methods of legal science used here predominantly include methods belonging to a group of interpretative methods, namely, the teleological method, the systematic method, the historical method, and the comparative method. The teleological method has been used as regards the explanation of the purpose of legislative instruments. The systematic method has been used in the classification of the principle of ne bis in idem. The historical method has been used as regards the genesis and historical aspects of ne bis in idem. The comparative method has been used to examine the relationship between legislative instruments. Results and Conclusions: The principle of ne bis in idem is one of the oldest norms in western civilisation. Since the Europeanisation of law also occurred in criminal law, including criminal proceedings, the principle of ne bis in idem became a part of international legal documents. The Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 7, introduced a new right – the ‘right not to be tried or punished twice’. In addition, the Charter of Fundamental Rights of the European Union, which is the first bill of rights developed explicitly for the EU, also introduced the principle of ne bis in idem as the ‘right not to be tried or punished twice in criminal proceedings for the same criminal offence’. However, its understanding in the Charter has no additional significance. In principle, it is the same. Despite the fact the primary purpose of the Convention implementing the Schengen Agreement is to facilitate the free movement of persons between member states of the EU by removing internal border controls, several measures have been introduced which focus on police and judicial co-operation, including the principle of ne bis in idem, in the provision entitled ‘Application of the ne bis in idem principle’. This provision is considered the most developed expression of an internationally applicable ne bis in idem. Ne bis in idem also occurs in extradition proceedings and surrender proceedings. Its operation under the European Convention on Extradition prevents the double prosecution of the same person for the same offence in different jurisdictions. As regards the new procedural system introduced by the Framework Decision 2002/584/JHA on the European arrest warrant, based on the surrender proceedings as a special kind of criminal proceedings, there is no absolute obligation to execute the European arrest warrant. The Framework Decision, in its core text, includes grounds for non-execution of the arrest warrant in the executing state – and one of them is the principle of ne bis in idem

The extraterritorial effect of the principle ne bis in idem confirms the rule that the court decisions (do not) operate within the borders of national jurisdiction, but the same decisions can be executed in another country, by accepting the idea of freedom of movement of foreign court decisions established, by the Framework Decision on the European Arrest Warrant or by applying the institute of recognition and enforcement of foreign court decisions. On the territory of the European Union it is indisputable the extraterritorial effect of the principle ne bis in idem, but also the interprocsual effect of this principle. The Volkswagen case by the European Court of Justice confirmed that procedural interference lispendentio as part of the principle ne bis in idem and prevents the initiation of proceedings for the same offense in another member state of the European Union. The penalty imposed of 5,000,000 euros Volkswagen Group at Italy is considered a criminal penalty even it was imposed in an administrative procedure. The imposed fine has a repressive effect and preventive purpose. Recognition of the intertrial effect of the ne bis in idem principle is disputed when we talk about act wich have the characteristics of a disciplinary offense and a criminal offense, because the punishment imposed in the disciplinary procedure concerns a certain group of citizens, it has no effects of general prevention. The interprocedural effect of the ne bis in idem principle means that the sentence imposed in another criminal proceeding (misdemeanor, administrative) is an obstacle to the initiation of criminal proceedings for the same offense to the same person. But the interprocedural efect of the principle ne bis in idem does not necessarily exclude criminal prosecution, by accepting the rule od criminal law merger of sentence.

Criminal procedure law consists of legal principles, such as a fair and impartial trial and within a reasonable time, presumption of innocence, the principle "in dubio pro reo," independence of the court, equality of parties, the principle "ne bis in idem"etc. Among the main principles recognised by International Conventions, the Constitutions of States, and Criminal Procedure Laws is the principle, “The right not to be tried twice for the same offence," or as it is also known, "ne bis in idem." The principle “in bis in idem” is used in Kosovo’s criminal proceedings, and recognition of this principle by international convention, including its recognition by the Law of the European Union, is analysed in this paper. The legislation of Kosovo was established with the influence and assistance of the international community, which had an administration mandate until 17 February 2008, the date on which Kosovo declared its independence and, hence, separated from the former Yugoslavia. The new state is not a member of the UN but is officially recognised by more than 100 countries. In 2010, the International Court of Justice issued the Advisory Opinion which concluded, “The declaration of independence in respect of Kosovo on 17 February 2008 had not violated general international law.” The purpose of this paper is to emphasise the importance of this principle when dealing with criminal cases before regular courts, the legal security that this principle provides to society, and the implementation of international legal instruments in the national law. Methods: The paper uses methods of analysis and synthesis, the descriptive method, as well as the method of doctrinal interpretation of legal norms of criminal proceedings. Results and conclusions: This principle has been accepted by international instruments and by Kosovo’s constitutional and legal system. The application of this principle in the criminal justice system in Kosovo forms legal certainty for citizens and constitutes protection of the rights and legitimate interests of persons involved in criminal proceedings. Kosovo has applied international standards in the implementation of criminal legislation and has directly incorporated international human rights instruments into its constitutional system (International Covenant on Civil and Political Rights adopted by the UN in 1966, ensued by the European Convention for the Protection of Human Rights and Fundamental Freedoms).

The prohibition of being liable to be tried or punished again in criminal proceedings for the same offence ne bis in idem - is one of fundamental criminal proceeding principles and a basic human right. It protects the defendant from reopening the proceedings for the same criminal offence in respect of which the proceedings were finalized. Primarily, the effect of this principle is related to final court decisions. Regarding the decisions of the public prosecutor, there is a legal gap. As the reformed criminal procedure provides broader jurisdiction to the public prosecutor, it has seemed a necessity to consider in this paper what status is given in practice to the decisions of this procedural entity regarding the prohibition of ne bis in idem. During the review, the views of the European Court of Human Rights and the Court of Justice of the European Union are presented, which plays a key role in defining the principles and setting standards for the application of the principle, as well as domestic case-law. The author believes that a broader interpretation should be accepted so that the effect of the ne bis in idem principle is not limited only to court decisions but also to include the decisions of the public prosecutor. In this way complete legal certainty is achieved and uncertain legal situations are eliminated.

In the article, the authors analyze the fundamental challenges in the application of the ne bis in idem principle in the practice of the European Court for Human Rights and Court of Justice of the EU and their interpretation of the principle in relation to the application on the criminal offences and misdemeanour offences, including administrative penal offences, against the same person for the same acts. Article followed the development in interpretation of the principle by the European Court of Human Rights in Zolotukhin case to the interpretation of the Court of Justice of the EU in Menci case. European Courts jurisprudence could be used for dialogue on challenges that the Serbian judiciary and tax authories are facing in the interpretation of legislation and application of ne bis in idem principle on criminal and misdemeanour proceedings against the same person for the same acts. The articile provides the basis for discussion on the unification of court practice.

Article 50 of the Charter of Fundamental Rights of the EU enshrines the principle of ne bis in idem: 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. In Case 27/22 Volkswagen Group Italia SpA and Volkswagen Aktiengesellschaft, the Court of Justice rules on the cross-border application of and limitations to the principle of ne bis in idem against the background of the 'punitive follow-up' in Germany and Italy of the Volkswagen emission scandal. In this contribution, I discuss the judgment of the Court of Justice and provide some comments on the case. In my commentary, I specifically focus on the complex and controversial aspects of the cross-border application of and limitations to the principle of ne bis in idem, and the broader relevance of the judgment as an illustration of the current 'asymmetry' in the EU at the interface of punitive administrative and criminal law proceedings.

The ne bis in idem (prohibition of double prosecution, prohibition of double punishment, prohibition of double jeopardy), principle is included in many national, European and international legal instruments. In general, the objective of this principle is to ensure that no one is prosecuted or punished for the same act more than once. In this study, I examine the application of the ne bis in idem principle in the practice of the European Court of Human Rights and the Court of Justice of the European Union. In the jurisprudence of the European Court of Justice, the Lada case needs to be highlighted. The question referred to the Court of Justice in this case concerns the compatibility with the ne bis in idem principle of a procedure ‘for recognition of the validity’ in a Member State of a final decision taken in criminal proceedings brought in another Member State. Finally, I deal with the issue whether the ne bis in idem principle could be applied to sanctions in different branches of law (e.g. administrative law and criminal law).

Ne bis in idem principle in Mahkamah Konstitusi procedural law (Constitutional Court– CC) found in Article 60 Paragraph (1) of CC Act, in prohibition form to return to trial norms previously reviewed. Discrete from Criminal Code and Civil Code which exact ne bis in idem elements, Article 60 Paragraph (1) has sole element within object review form. This research examines two problems: what are ne bis in idem principle characteristics, and what are the elements in the CC procedural law? The normative judicial research method used to understand ne bis in idem principle elative. Ne bis in idem adaptation in CC procedural law resulted broad philosophical shifts that unaffected Petitioners' legal standing and legality of the object that could bring against them. Based on decision systematics, CC put arguments ne bis in idem at Conclusion, so that it is not a verdict. Meanwhile, ne bis in idem principle in CC procedural law carry several norms, however CC Act only has two elements in legal object and legal subject-relationship forms. Meanwhile, the third element in legal development form is found in the CC decision. Because the legal standing of the Petitioners' and the legality of the object that can be challenged was not disturbed, the three elements did not apply accumulatively, in which the element of legal development was more determinant than the other two elements. As result, constitutionality actualization either occurs through positive decisions granted Petitioners' petition, moreover occurred in cases deemed ne bis in idem.

Is it possible to re-try the same person for the same offense if the criminal proceedings have been suspended by order of the prosecutor for some meritorious reasons and if a plea agreement is concluded between the parties to the criminal proceedings. It is also an interesting issue can we apply principle ne bis in idem in relation to the decision of judge by which all point of the charges are accepted or obtained. An appeal is allowed against the aforementioned court decisions and the same decisions can be finally so it is understandable to apply principle ne bis in idem to a court decision and a plea agreement. Against the prosecutor's order to suspend the investigation is not possible appeal. The prosecutor's order is not subject to judicial review and it is not possible to apply the principle ne bis in idem even the criminal proceedings have been suspended for meritorious reasons.

The cases of Menci (C-524/15), Garlsson (C-537/16) and Di Puma (C-596/16 and C-597/16) deal with the duplication of criminal and punitive administrative proceedings for the same conduct in the area of VAT and market abuse. The Court of Justice of the European Union (CJEU) held that this duplication of proceedings constitutes a limitation of the ne bis in idem principle of Article 50 of the Charter of Fundamental Rights (Charter). This infringement is only justified if the requirements of the limitation clause of Article 52(1) of the Charter are met. The judgments were highly anticipated as they constitute the response of the CJEU to the judgment in A and B v Norway delivered by the European Court of Human Rights (ECtHR), in which the ECtHR lowered the level of protection afforded by the ne bis in idem principle of Article 4 of Protocol No. 7 to the European Convention of Human Rights (A4P7 ECHR). While there are differences between the approaches taken by both courts, it appears that the reasoning of the CJEU in the judgments largely mirrors that of the ECtHR in A and B v Norway. This article frames the judgments in terms of the dialogue between the CJEU and ECtHR on the ne bis in idem principle. It does so chronologically, by focusing on the past, present and future of the ne bis in idem dialogue between both European courts.

The subject of discussion in this article is the current regulatory framework for engaging in administrative and criminal liability for violations of tax legislation related to excise goods, through the lens of the “ne bis in idem” principle. This principle, which prohibits a person from being prosecuted more than once for the same (criminal) behaviour, has been adopted both in the constant practice of the European Court of Human Rights and in the mandatory practice of the Supreme Court of Cassation, with relevant clarifications regarding its application field in criminal proceedings and criteria for determining the nature of the latter. The changes in Bulgarian legislation, preventing the parallel or consecutive conduct of administrative and criminal proceedings, in turn, are an additional guarantee for the observance of the principle and the creation of legal certainty.

The purpose of the research is to analyze the judge's consideration so that case Number 268/Pdt.G/2021/PN.Kpg cannot be accepted because of ne bis in idem and to analyze the legal consequences of case Number 268/Pdt.G/2021/PN.Kpg which is declared ne bis in idem. Civil procedural law recognizes the principle of ne bis in idem which means that a case that has been decided by a judge and has permanent legal force cannot be resubmitted. The research method used is normative legal research which focuses on the law approach, concept approach, and case approach. The results of the study found that the basis for the consideration of declaring case Number 268/Pdt.G/2021 inadmissible due to ne bis in idem is that there are similarities in subjects, objects, legal relations, and courts and case Number 268/Pdt/2021/PN.Kpg has previously had a permanent legal decision and has a positive nature of the decision. The legal consequences of case Number 268/Pdt.G/2021/PN.Kpg which is declared ne bis in idem, namely first, the subject does not have legal standing to file a lawsuit against the same thing and the legal subject returns to its original state to obey the contents of the decision. Second, for the object, it cannot be re-filed in the same lawsuit and the legal object is legally valid. The suggestion given by the author is that there is a need for a basic understanding of ne bis in idem for parties who want or will file a lawsuit and there is a need to form a regulation that provides restrictions on cases that have ne bis in idem potential to not need to continue the examination until the subject matter.

On 1 October 2005, with the entry into force of the Criminal Procedure Law, a new procedure was introduced for examining charges brought during the pre-trial criminal proceedings. One of the significant innovations was the prosecutor’s duty – under certain conditions – to amend the charge in court (see Sections 461 and 462 of the Criminal Procedure Law). This study offers an analysis of the issues related to the amendment of charges during the trial stage. After addressing some general considerations, the focus turns to two key aspects: • distinguishing the institution of charge amendment from the bringing of a new (additional) charge, which is not directly regulated by law; • identifying criteria for determining whether the severity of the charge has changed, particularly in relation to whether the amended charge is more or less serious. The main conclusions of the study are, as follows: To distinguish between the amendment of a charge and the bringing of a new (additional) charge in court, the author proposes two criteria. The first criterion is whether the acts fall within a single criminal offence in terms of substantive criminal law. According to this criterion, any changes to the charge – such as expanding or narrowing the scope of the alleged conduct or omission, or specifying or modifying the factual details of the offence – are to be regarded as an amendment of the charge, insofar as they relate to the same individual criminal offence already alleged in the pre-trial charge. The second criterion is derived from the principle ne bis in idem, which prohibits trying or punishing the same person twice for the same offence. According to this criterion, a change constitutes an amendment of the charge, if the conduct in question could not be tried again in another criminal proceeding without breaching the prohibition against ne bis in idem. The presence of either of these criteria is sufficient to establish that the charge has been amended. When assessing whether the amended charge is more serious, the decisive factor is whether the amended element may serve as a basis for imposing a harsher sentence – even if the legal classification of the offence remains unchanged.

European Union (EU) law is increasingly influencing the substantive criminal law of the member states. In this area of law – in which criminal liability and subsequent punishment are at stake – protection of fundamental rights is indispensable, as a result of which means the Charter has great potential relevance. This article examines the protection of fundamental rights by Union law in the field of substantive criminal law since the Charter has become binding and compares it to the protection offered by the European Court of Human Rights (ECtHR). The article focuses on two fundamental rights that rule substantive criminal law: the principle of guilt and the ne bis in idem principle. It holds that EU law still does not provide a full foundation to both principles of criminal substantive law. Given the particular nature of EU law, the practice of the institutions in substantive criminal law, and the current case law of the European Court of Justice and the ECtHR, we argue that the current level of protection in these parts of the criminal law is insufficiently convincing. Progress needs to be made in the recognition and appreciation of the principle of guilt, while the ne bis in idem principle might be overextended.

Section 10.1, deals with the meaning and the limits of the guarantee of ne bis in idem (which protects an individual who has already been acquitted or convicted with a final decision by one State from the potential to be subjected to a new criminal proceeding in another State for the same fact, with the consequent risk of a duplicate punishment) in the ECHR system (where the ne bis in idem principle represents a fundamental right of the individual) and in the Criminal Judicial Cooperation area (where the ne bis in idem guarantee can be also placed in the specific dimension of the mutual recognition). From this perspective, Sect. 10.1 deals in particular with the evolution of the jurisprudence of the European Court of Human Rights and the Court of Justice on this matter. Section 10.2 is focused on the problem of lis pendens (i.e., the simultaneous beginning of criminal proceedings for the same fact against the same person within different States), pointing out the best solutions to prevent or to resolve it.