Multi-Offenders In (Double) Jeopardy – Towards Cross-Border Prosecution and Sentencing Rules for Offenders Who Have Committed Multiple Offences

Abstract

The European freedom of movement has led to an increase of criminal cases with a cross-border element. Offenders can easily commit multiple offences on the territory of different Member States or can easily move from one Member State to another after having committed an offence. This might result in some proportionality concerns, since being prosecuted more than once and being punished more than once might cause extra (unjustified) distress on the offender. There is thus a dire need for European rules on prosecution and sentencing in cases with a cross-border element. In this regard, several EU rules are being analysed, more specifically in the light of the prosecution and sentencing of multi-offenders. Of course, the ne bis in idem principle is one of the main rules in this context. It will appear that the ne bis in idem principle’s field of application is still too restricted, too contested and even too unexplored. Not all defendants can enjoy the procedural safeguards called to life by the ne bis in idem principle, nor does unanimity exist with regard to which offenders can invoke the principle. Unfortunately, the more recent legal instruments neither succeed in providing some more procedural safeguards and some more legal certainty for all defendants. This contribution will analyse the lack of procedural safeguards for multi-offenders due to the limited ne bis in idem principle and the non-complementary fields of application of other judicial cooperation instruments on both the prosecution and sentencing level and will make some recommendations in this regard.