Bis In Idem Research Articles

Обеспечение безопасности дорожного движения перевозчиком как условие надлежащего оказания услуг по перевозке пассажиров

Certain aspects of bringing the carrier to administrative responsibility for violation of requirements in the field of road safety in the provision of services of inadequate quality for the carriage of passengers are considered. Based on the analysis of legislation and judicial practice, the possibility of simultaneously bringing the carrier to administrative responsibility for violations in the field of road safety and liability for improper provision of services within the framework of administrative and civil law legislation is being investigated. It is stated that the fulfillment of public obligations to comply with road safety requirements is usually the requirements for the provision of passenger transportation services. It is proved that the simultaneous application of several liability measures to the carrier and its employees does not contradict the principle of inadmissibility of bringing twice to responsibility for the same act (non bis in idem), because the subjects of responsibility have different legal status, and legislation is aimed at protecting different protected interests. It is concluded that such an approach makes it possible to distinguish the administrative-legal consequences of violations of road safety requirements by drivers engaged in professional activities and drivers engaged in transportation for their own needs. Consideration of an administrative offense as the basis of civil liability in the field of passenger transportation makes it possible to guarantee road safety when transporting passengers simultaneously by public and private legal means.

The Right Against Double Jeopardy (Non Bis in Idem) and the Drafting History of Article 14(7) of the International Covenant on Civil and Political Rights, 1966

Article 14(7) of the International Covenant on Civil and Political Rights, 1966 provides that “[n]o 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”. The drafters of that provision agreed that once a person had finally been convicted or acquitted of an offence, they should not be tried or punished for the same offence based on the same facts or evidence. The ICCPR does not define what a “final” judgment amounts to for the purposes of article 14(7). This is so because, after several days of deliberation, the drafters of the ICCPR failed to agree on the definition of that term. Despite some states proposing such a definition, the drafters instead agreed to omit it completely, with the understanding that each state will determine the meaning of a “final judgment” within their own context. This contribution illustrates the drafting history of article 14(7), which shows that the drafters agreed on the definition of the word “finally” in the provision, but that they decided against including the definition in the provision. This means that states are required to follow that definition when interpreting article 14(7). Furthermore, this study also shows the impact of this drafting history on the reservations made by various states. It is argued that certain of these reservations to article 14(7) are incompatible with the drafting history of the provision.

The Digital Markets Act and the Principle of Ne Bis in Idem: A Revolution in the Enforcement of EU Competition Law?

The Digital Markets Act and the Principle of Ne Bis in Idem: A Revolution in the Enforcement of EU Competition Law?

The “Ne bis in idem” Principle in the Competition of Administrative Criminal Liability and Criminal Liability for Violations Related to Excise Goods

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.

Study on the Legal Consequences of Revocation of the Appellate Award in the Internal Appellate Mechanism for Arbitration

The traditional principle of finality in arbitration has certain drawbacks, and the huge risk costs it may lead to make some international commercial parties no longer use arbitration as their first choice for dispute resolution. However, the appellate mechanism for arbitration is not yet well developed, and the legal consequences of revocation of the appellate award need to be further clarified. In this article, I will analyse the academic opinions in China and abroad, and discuss the validity of the appellate award and the original award, the validity of these two kinds of awards after the appellate award is set aside, and the understanding of the principle of “non bis in idem” after being revoked, so as to draw conclusions on how to determine the validity of the arbitration award after the appellate award is set aside under different circumstances. Based on analysis above, my suggestion is that the same dispute after the revocation of the appellate award should be arbitrated by entering into a new arbitration agreement or by bringing a lawsuit.

INTERNATIONALISATION OF THE CRIMINAL PROCEDURE WITHIN EXTRADITION: CASE BELARUS

The subject of the article is the extradition as an element of the international legal paradigm of the modern criminal procedure. In this context, the goal of this research is to identify the fundamental human rights affected by the criminal proceedings within the extradition procedure based on cases related to the Republic of Belarus as well as legal provisions of this state. In this regard, the article explores the concept of the international legal paradigm of the modern criminal procedure. The author analyses the principles, the implementation of which is required to ensure human rights in the framework of the Belarusian criminal procedure in the course of extradition. The article reveals certain fundamental human rights that are affected during the extradition procedure: the personal inviolability, the right to defence and ne bis in idem.

NE BIS IN IDEM AS A MODERN GUARANTEE IN CRIMINAL PROCEEDINGS IN EUROPE

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

Anayasa Mahkemesinin 213 sayılı Vergi Usul Kanunu’nun 367. maddesinin son fıkrasının İptali Yönündeki Kararının Vergi Uyuşmazlığından Doğan İdari Davalara Etkileri

Anayasa Mahkemesi 213 sayılı Kanun’un 367. maddesinin son fıkrasında yer alan ve ceza yargılaması süreci ile idari cezalandırma sürecinde alınan kararların birbirini bağlamayacağını öngören kuralı Anayasa’ya aykırı bularak iptal etmiştir. Bu iki sürecin maddi yönden ve zamansal açıdan yeterince yakın bir bağlantı içinde yürütülmesini öngören ne bis in idem ilkesi ise gerek Anayasa ve gerekse Avrupa İnsan Hakları Sözleşmesi’ne ek 7 No’lu Protokol’ün 4. maddesi kapsamında Türk hukukunda açısından yürürlüktedir. Bu çalışma, anılan iptal kararı ve ne bis in idem ilkesine ilişkin yürürlükte olan düzenlemeler ışığında ceza soruşturma ve kovuşturma sürecinin suç isnadının esasını ilgilendiren (özerk bir yorumla bir beraat ya mahkûmiyet tesis eden) bir kararla kesinleşmesinin idari yargıda derdest olan vergi uyuşmazlığından doğan davalara etkisini incelemeye yönelmektedir.

Carácter procedimental del non bis in idem en la Unión Europea

After several years under harsh criticism, the Court of Justice of the European Union has finally accepted to review its case law on the idem condition in the ne bis in idem doctrine. In bpost and Nordzucker & others, the ECJ has adjudicated that the idem condition must be understood as idem factum in every field under EU Law, including competition law. The grounds for this decision remain unclear. This paper suggests that a clear distinction between a procedural and a substantive concept of non bis in idem and, specially, the acknowledgment of the ECJ’s endorsement of the latter, may help to understand its most recent case law.

Case Law Trend: The Question of Interaction Between the Tax and Criminal Proceedings in the ECtHR Case-Law

This objective of this study is to analyse the definition and the application of the concept of sufficiently close in substance and in time by the European Court of Human Rights (ECtHR) in terms of tax penalties. The Court implements this concept in Article 4 of the Protocol Number 7 of the European Convention on Human Rights (ECHR) and intends to regulate the interaction between the two sets of (tax and criminal) procedures that deal with the penalization of the same matter. The progress of the case law is examined from the Glantz and Nykänen judgments in 2014 and the Kristjansson judgment in 2021. Two research questions are addressed: What is the connection in substance, and what is the connection in time? For the first question, the case law points out that the connection in substance requires the repetition in collection evidence. However, the boundaries of the relationship that should be established between the two sets of proceedings are uncertain and debatable. For the second question, the temporal connection has not yet been defined in case law, and its application overlaps with the scope of the right to a fair trial. Thus, it is seen that the boundaries in the both contexts need to be redrawn in order to eliminate the current ambivalence. ECtHR case-law, interaction between proceedings, connection in substance, connection in time, ne bis in idem, tax penalty, tax procedure, right to a fair trial.

A History of the Common Law Double Jeopardy Principle: From Classical Antiquity to Modern Era

The double jeopardy principle is a guarantee of individual liberty that has ancient origins. The development of the principle has been incremental, and its meaning has varied through the ages. The research question and attending analyses presented in this article advances an examination of the evolution of the double jeopardy principle in historical context. Through doctrinal analysis the hypothesis advances the supposition that the common law principle was firmly established by the post-medieval period. Through an examination of landmarks in the development of the principle the article examines theoretical underpinnings and considers the extent to which the criminal justice system developed a public prosecution model of criminal justice. The incremental development of this fundamental principle of criminal justice can be explained in terms of the deficiencies in medieval criminal procedure, prejudices and practices of medieval trial procedure and punishments imposed on convicted offenders. Jurisprudence on the application of the principle indicates significant developments following the Restoration. Keywords: Double jeopardy; Ne bis in idem; Autrefois acquit; Autrefois convict; Criminous clerks; Restoration

Bis in idem by Joint Implementation of Penal and Administrative Legislation

The complete separation of administrative and criminal law was achieved in the 1950s and 1960s. Thus, administrative legislation is liberated from the limitations of criminal law. Presently the former’s achievements question the rule of law by combining administrative and criminal responsibility, corporate liability, and collateral consequences of criminal conviction. Law is a unitary system and its division into branches shouldn’t create possibilities for breaking its principles.

Judicial Control over Compliance with Plea Agreement at Special Stages of Criminal Procedure

The paper discusses the extension of judicial control at the special stages of a criminal procedure in case the defendant violates the plea agreement being a cassation and supervisory basis for the cancellation of the verdict that has entered into legal force. The author reveals obvious conceptual and legal-technical contradictions of the mentioned ground for the current procedural forms of criminal cassation and supervision and the resulting inability of the relevant verification stages to implement the problematic ground. In addition to the instrumental errors of the considered grounds for reversing the judgment that has entered into force, attention is drawn to its contradictions with the European standards of res judicata and non bis in idem in the sense given by the law enforcement practice of the European Court of Human Rights. The author proposes options for resolving the identified problems, filling the uncertainty of legal regulation by referring to the institutions of criminal and criminal procedural law. In order to achieve the aims related to the control over conscientious fulfillment of the terms of a plea agreement set by the legislator, it is proposed to consider the violation of such an agreement by the defender as a newly discovered circumstance. This option will optimize the procedural order of proceedings on court decisions that have entered into legal force, keep it away from technical and conceptual contradictions, and ensure the proper fulfillment of its international legal obligations by the Russian Federation.

A Second Bite at the Cherry

Abstract The principle of ne bis in idem, or the rule against double jeopardy, guarantees that a person is not tried twice in respect of the same matter. In exceptional circumstances ne bis in idem permits revisiting a final conviction or acquittal to correct a flawed verdict. The Rome Statute of the International Criminal Court (ICC, the Court) permits revision of a final conviction delivered by the ICC while a final acquittal of the Court is accorded absolute finality. This article proposes amending the ICC Statute to introduce revision of so-called tainted acquittals, meaning acquittals that have been obtained through offences against administration of justice. Revision of tainted acquittals would allow the ICC to hold responsible perpetrators of crimes within its jurisdiction who might have otherwise benefited from unlawful interference with the proceedings before the Court. It may also discourage interference with the ICC’s administration of justice and strengthen the ne bis in idem guarantee in Article 20(1) of the ICC Statute.

“Ne bis in idem” - as a principle of international criminal law

The article touches upon the question of whether the prohibition on the prosecution of the same person more than once for the same crime, better known as “ne bis in idem”, can be applied in international legal relations. Many countries recognize the transnational aspect of ne bis in idem, although they usually subordinate it to the requirement that the facts examined by a foreign court were not committed in whole or in part on their territory. The principle of “ne bis in idem” is an established principle in most countries, but at the same time, it also creates a number of problems that national and international courts are trying to solve.

Teorijski i praktični aspekti primene načela ne bis in idem u pravu Evropske unije

The ne bis in idem principle as one of the most established legal rules, has been widely regulated by sources of national and International Law. By its very nature, it protects individuals from double punishment for the same act, regardless of its classification as a misdemeanor, criminal offence etc. Different legal traditions, together with a purely national criminal jurisdiction, led to a certain divergency among states. Moreover, such a problem has existed for a long time in the jurisprudence of the European Court of Human Rights. However, regulation of this principle in the EU Law brought upon some novelties. In the end of 20th century and in the beginning of 21st century there was the process of a more detailed defining of conditions for the application of ne bis in idem principle. In parallel with that process, the European Court of Justice delivered its judgments, which clarified practical dilemmas of national courts in this particular field of law. These judgments resulted from the requests for preliminary ruling referred by national courts. In that regard, many important precedents have been adjudicated, defining essential elements for implementation of prohibition of double punishment, as for example concept of the 'same act'. On the basis of the analysis of the legal framework and relevant jurisprudence of the ECJ, we come to the conclusion that the principle ne bis in idem in the EU Law system has been interpreted extensively and this fact significantly impacts on the overcoming of formalities contained in national legal systems, which can bring about double punishment for the same act.

The Effect of the Roman Law on Punishment

The laws of advanced democracies are often inspired by the Roman law. The Slovak Republic is no exception. In the area of punishment, it is even one of the most important institutes. The institute of necessary defence is based on the principle of vim vi repellere licet and creates conditions for the protection of life, health and property in cases where these are not capable of being ensured by the state authorities. The principle of ne bis in idem provides protection against repeated punishment of the offender for the same act and is one of the greatest guarantees of maintaining legal certainty.

The Effect of the Roman Law on Punishment

The laws of advanced democracies are often inspired by the Roman law. The Slovak Republic is no exception. In the area of punishment, it is even one of the most important institutes. The institute of necessary defence is based on the principle of vim vi repellere licet and creates conditions for the protection of life, health and property in cases where these are not capable of being ensured by the state authorities. The principle of ne bis in idem provides protection against repeated punishment of the offender for the same act and is one of the greatest guarantees of maintaining legal certainty.

A Reasoned Approach to Prohibiting the Bis in Idem : Between the Double and the Triple Identities

A Reasoned Approach to Prohibiting the Bis in Idem : Between the Double and the Triple Identities

Odpowiedzialność karna i dyscyplinarna żołnierza i funkcjonariusza w świetle zasady ne bis in idem

he appearance in the legal system of military disciplinary regulations introducing the category of the so-called a contact act (i.e. an act that is a military disciplinary offense that simulta-neously fulfills the features of a prohibited act, penalized in another act, e.g. in the Act of June 6, 1997, the Penal Code) triggered a number of questions about the mutual relationship between the repressive nature of criminal and quasi-repressive military disciplinary liability. The category of a contact act expressis verbis refers to the provision of Art. 17 sec. 1 and art. 17 sec. 2 points 2-3 of the Act of 09/10/2009 on Military Discipline. Committing a military disciplinary offense by a mil-itary soldier, which at the same time carries the features of an offense penalized in the Criminal Code, gives the possibility of double (i.e. criminal and disciplinary) punishment of a soldier for the same act in fact. Therefore, it is necessary to consider whether such practice makes ne bis in idem (prohibiting repeated punishment of a person for the same act) quite a constitutional principle; or, on the contrary, this practice violates constitutional standards? The analysis made in this article is an attempt to answer this question. The considerations are dogmatic and historical in nature, using the method of systemic and linguistic interpretation.