Two Perspectives on the Realization of the European <I>ne bis in idem</I> Principle

Abstract

Two different perspectives on the ne bis in idem principle on the European level, the ‘extradition paradigm’ and the ‘constitutional paradigm’ are presented. Both are rooted in notions concerning the role and function of the ne bis in idem rule in domestic legal systems. Under the constitutional paradigm, the ne bis in idem principle is seen as forming part of an emerging European constitutional order, whereas under the extradition paradigm, the principle is primarily seen as logical consequence of closer cooperation between European States in enforcement matters. Although the European Court of Human Rights (ECtHR) would appear to have fully aligned its interpretation of the element of idem (“the same”) with that of the Court of Justice of the EU (CJEU) there are good indications that their approaches actually diverge significantly in the light of these two different perspectives the role of the ne bis in idem principle.