Bis In Idem Research Articles

The Facts Charged of a Indictment and the Objective Range of Effect of the Principle of Ne Bis in Idem

The Facts Charged of a Indictment and the Objective Range of Effect of the Principle of Ne Bis in Idem

La dignidad humana como límite al ius puniendi. La jurisprudencia del tribunal constitucional de Chile

En este artículo se expone la jurisprudencia del Tribunal Constitucional de Chile en materia de dignidad humana con valor fundamental del orden constitucional chileno, y la manera como lo instituye con un límite al ius puniendi estatal. Se exponen textos doctrinales, tanto nacionales como extranjeros, en torno a la noción de dignidad humana y su forma de incorporación en los ordenamientos constitucionales, específicamente en la Constitución chilena. Del mismo modo, se analiza la jurisprudencia del Tribunal, para indagar la idea de dignidad humana que posee, y la manera y los alcances en su aplicación. El Tribunal considera la dignidad humana como una condición intrínseca del ser humano, de la cual se colige un deber de respeto y de consideración, principalmente del Estado. La circunstancia del reconocimiento constitucional de la dignidad lleva a estimarla como la base del orden político y social en el contexto de un Estado democrático de derecho, de lo cual se derivan y concretan en el orden del derecho punitivo una serie de principios, como la presunción de inocencia, el principio non bis in idem, el principio de culpabilidad y el de proporcionalidad de las penas, los cuales necesariamente limitan el derecho penal subjetivo del Estado.

A ne bis in idem elve a legújabb európai joggyakorlatban, kitekintéssel a princípium érvényesülésére különböző jogterületek találkozása esetében

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).

Breach of Notarial Deed for Peace under Indonesian Civil Law Perspective

The peace agreement resulted from an out of court mediation process can be made in the form of either an authentic deed or underhand deed. This paper discusses the application of the principle of ‘ne bis in idem’ in lawsuit relating to the breach of the notarial deed for peace and the legal strength of notarial deed for peace based on the Civil Code and the Civil Procedure (HIR). Data in the form of primary and secondary legal materials were collected through both library research and field work. It is found that with regards to Article 1917 of the Civil Code and Article 130 paragraph (2) the Civil Procedure (HIR), the principle of ‘ne bis in idem’ is not contained in a lawsuit against the breach of notarial deed for peace. It is also found that the legal strength of the notarial deed for peace is the same as the authentic deed as outlined in Article 1870 of the Civil Code and Article 165 of the Civil Procedure (HIR).

The European ne bis in idem at the Crossroads of Administrative and Criminal Law

This article discusses the recent developments in the case laws of the European Courts on the principle of ne bis in idem at the interface between criminal and administrative law, in particular with regard to the legitimacy of double-track enforcement systems. It is argued that both, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), have aligned not only in lowering their previously more protective standards, but also in laying down new rules that, though partially converging, remain highly unclear. Through an analysis of the case law following the ECtHR’s judgment in A and B v Norway and the three CJEU 2018 decisions in Menci, Garlsson and Di Puma and Zecca, it is demonstrated that the uncertainty generated as to the precise conditions under which dual criminal and administrative proceedings are permissible leads to unforeseeable outcomes. The potential consequences, most importantly, also tend to put pressure on other aspects of this fundamental guarantee, as well as on the standard of protection of other fundamental rights that to date are considered as given. Against this background, we will discuss at last whether the slight differences in the approach adopted by the CJEU to that of the ECtHR could reveal a silent effort on its part to take a more right-friendly stance

Ne bis in idem and Tax Offences : How Belgium Adapted its Legislation to the Recent Case Law of the ECtHR and the CJEU

For decades, Belgian fiscal criminal law was governed by the fundamental principle that there had to be an absolute separation between the administrative tax investigations by tax authorities and criminal prosecutions carried out by the public prosecutor. In the light of the recent case law of the European Court of Human Rights and the Court of Justice of the European Union on the duality of administrative and criminal proceedings, this principle could no longer be upheld. A new law passed on 5 May 2019 brought Belgian legislation in line with this supranational case law. A consultation mechanism (introduced in 2012) between the tax administration and the prosecution service to give guidance to tax investigations, has been made more efficient. In order to respect the “ne is in idem” principle, criminal courts must now take into account administrative sanctions of a criminal nature when sentencing tax crimes. The competences of the tax authorities have been changed at the sentencing level, in order to facilitate the recovery of evaded taxes. Within the margin of these fundamental adaptations, some supplementary changes have been carried out to make the system of criminal prosecution more efficient and fairer. This article describes in a practical manner the shift in supranational case law concerning the juxtaposition between administrative and criminal proceedings within the framework of “ne bis in idem” and how this case law laid the foundation for the new Belgian law of 5 May 2019

Promoting Predictability in Business: Solutions for Overlapping Liability in International Anti-Corruption Enforcement

This Note evaluates solutions to the problems of overlapping liability in general and multi-jurisdictional disgorgement in particular. Part I traces the origins of international anti-corruption efforts and provides an overview of the Foreign Corrupt Practices Act (the “FCPA”). It then discusses the two most significant international anti-corruption conventions: the OECD’s Convention on Combatting Bribery of Foreign Officials in International Business Transactions (the “OECD Convention”) and the United Nations Convention Against Corruption (“UNCAC”). Part II lays out the problems created by the lack of a formal mechanism to prevent overlapping liability— a phenomenon that violates the common law concept known as double jeopardy and the analogous civil law principle ne bis in idem (not twice in the same thing). Part III proposes a formal mechanism to militate against the problems noted in Part II and argues that these provisions should be housed in a series of bilateral agreements akin to those that exist in international antitrust enforcement. Ultimately, this Note stresses the need for a more proportional and predictable method of ensuring that MNCs are not subject to overlapping liability and provides an actionable means for doing so.

Protection against competition law violations: Opportunities for compensation for damages in the Eurasian Economic Union and the European Union

The article analyzes current legal regulations in the Eurasian Economic Union (EAEU) and European Union (EU) governing protection against integrated entities’ violations of their respective competition laws. The issues of the policies implemented in this area in accordance with EAEU law, the correlation of national and supranational regulation and their application (including the principle of non bis in idem), and the delimitation of the competence of national and EAEU bodies in this area are clarified in light of the provisions of the Treaty on the Eurasian Economic Union (EEC) of May 29, 2014 and advisory opinions of the Court of the Eurasian Economic Union (of April 4, 2017; of December 17, 2018; of June 18, 2019). The absence of a legal ground for “private enforcement” of the EAEU competition laws, including its most important element — compensation for losses — is noted. In this regard, the authors analyze the experience of the European Union in this sphere, which is reflected in the Directive 2014/104/EU of the European Parliament and of the Council of November 26, 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states and of the European Union. Its key provisions are considered in sufficient detail. Based on the results of the research undertaken, it is concluded that it is necessary to empower the Eurasian Economic Commission in the EAEU Treaty to calculate the damages caused by the infringements of the EAEU Treaty competition rules that have or may have a negative effect on competition in cross-border markets in the territories of two or more EAEU member states. In order to implement this, it is also proposed to vest the EEC with the competence to approve the procedure of recovery and methodology of calculating these damages. According to the authors, the development of such a procedure requires the study, inter alia, of the mentioned EU experience.

Nove činjenice i novi dokazi kao osnov za ponavljanje krivičnog postupka

Reopening of criminal proceedings is a legal way to examine the factual basis of a final judgment based on an extraordinary legal remedy. The examination of the factual basis of the final judgment is initiated by the submission of a request for reopening the proceedings. This extraordinary remedy was established with the aim of establishing the truth in the criminal procedure, and is contrary to the principle of ne bis in idem. The factual deficiencies of a final judgment are remedied on the basis of new, or newly discovered facts, or evidence that arose after the finality of the judgment. Article 473 of the Criminal Procedure Code envisages the reasons for repeating the criminal proceedings. They can be grouped in various ways. One of the groups includes new facts and evidence, as a reason for repeating the proceedings. First of all, there are new facts and evidence that per se or in concert with other evidence may lead to a acquittal, or a repudiation judgment, or condemnation on a more lenient law (Article 473, para. 1, point 3 of the CPC). This group also includes new facts and evidence indicating that the defendant did not commit any of the actions of an extended criminal offense, or other offence, which includes several acts (Article 473, para. 1, point 5 of the CPC). The new facts and evidence, which would lead to a milder criminal sanction, are another reason that we classify in this group (Article 473, para. 1, point 6 of the CPC). Finally, there are also new facts and evidence that the defendant was not properly summoned for the main trial, which was held in his/her absence (Article 473, para. 1, point 7 of the CPC). Compared with the procedural laws of other states, our CPC provides a lot of grounds for reopening the procedure. In this way, an adequate legislative framework was provided for making a more favorable decision on the defendant in the procedure for this extraordinary legal remedy. Although the envisaged grounds for reopening criminal proceedings constitute a satisfactory basis for instituting proceedings under this extraordinary legal remedy, further clarification de lege ferenda is necessary. Our procedural law prohibits reopening criminal procedure to the detriment of the defendant. The prescription of the repetition of the proceedings to the detriment of the defendant, in some future revision of the procedural code, would not be contrary to the Constitution, except that, in the case of the merits of the request, the outcome would have been the adoption of the declaratory judgment. There are also interpretations that the Constitution allows both the conduct of the proceedings and rendering the decision at the detriment of the defendant in the procedure for extraordinary legal remedies. In that case, in the future, a reduced number of grounds for reopening the proceedings should be envisaged at the detriment of the defendant.

Cumulative Enforcement of European and National Competition Law and the Ne Bis In Idem Principle Case Comment to the Judgement of EU Court of Justice of 3 April 2019 Powszechny Zakład Ubezpieczeń na Życie S.A. v Prezes Urzędu Ochrony Konkurencji i Konsumentów (Case C-617/17)

The judgement of EU Court of Justice in response to the request for a preliminary ruling by the Polish Supreme Court confirms that the principle of ne bis in idem, enshrined in Article 50 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a national competition authority from fining an undertaking in a single decision for an infringement of national competition law and for an infringement of Article 82 EC (now Article 102 TFEU). In that regard it can be concluded that the judgement does not have anything new and is just a confirmation of settled case-law. Unfortunately, this case represents a lost opportunity to review the ‘double barrier’ doctrine and to clarify if the relationship between European and national competition law is one of ‘bilateral specialty’ or not.

The Past, Present and Future of the Ne Bis In Idem Dialogue between the Court of Justice of the European Union and the European Court of Human Rights: The Cases of Menci, Garlsson and Di Puma

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 ECJ’s recent case law on ne bis in idem: Implications for law enforcement in a shared legal order

The ne bis in idem principle is a forerunner for fundamental rights in the European legal order. It has facilitated integration, but it also meets strong resistance. This contribution deals with the principle of ne bis in idem at the interface of administrative and criminal law enforcement, which has been a particularly controversial issue over the last few years. It analyses the recent case law of the ECJ and explores its consequences, focusing on the extent to which the principle has been made dependent on the degree of harmonization of EU law and on the transnational implications. With the rise of many new forms of transnational cooperation and an increasing focus of the EU legislature on law enforcement, the significance of this case law is hard to overlook.

THE NON BIS IN IDEM PRINCIPLE IN THE CASE LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION - CONSISTENCY OR INCONSISTENCY?

The non bis in idem principle was first established in the Hammurabi Code (2,500 BC), under the name of res judicata pro veritate habetur.According to the non bis in idem principle, "no one is allowed to be summoned again in court or punished in another criminal case for the same criminal offense for which he has already been convicted or acquitted under the law of a state". The non bis in idem principle has a broad field of application in the field of international judicial cooperation in criminal matters.The harmonization of Member States' laws and the abolition of borders at EU level created the premises for the widespread application of the non bis in idem principle.For this reason, the Court of Justice of the European Union has been charged with interpreting the rule, namely the non bis in idem principle, as regulated in art. 54 CISA.At the present stage of regulation, an interpretation contrary to the non bis in idem principle would be likely to erode the right and affect international judicial cooperation in criminal matters.

I limiti oggettivi del ne bis in idem in Italia tra fonti nazionali ed europee

É premissa consolidada que o ne bis in idem constitua um direito fundamental, protegido por uma pluralidade de fontes nacionais (art. 649 do c.p.p. italiano) e supranacionais (art. 50 CDFUE e 4° protocolo CEDH). Entretanto, exatamente a “tutela multinível” dos direitos fundamentais que caracteriza o ordenamento italiano – paradoxalmente – corre o risco de se transformar em um obstáculo à mais ampla operabilidade dessa garantia. Ademais, nos panoramas italiano e europeu, as previsões que especificam os pressupostos para a aplicabilidade dessa garantia se caracterizam por um conteúdo heterogêneo (identidade do fato; identidade da infração), destinado a incidir negativamente sobre a definição da perspectiva objetiva da proibição de dupla persecução. Por outro lado, a interpretação das mesmas previsões por parte da jurisprudência italiana, ordinária e constitucional, e pelas Cortes supranacionais torna ainda mais incertos os confins do efeito preclusivo gerado por uma decisão irrevogável. Em particular, alude-se as hipóteses em que o ne bis in idem entre em jogo em relação ao “duplo binário sancionatório”, por força do qual o mesmo fato é sancionado, contemporaneamente, em campo penal e em campo administrativo. A reconstrução da perspectiva da garantia atribuída ao art. 649 do c.p.p. italiano deve partir da valorização do princípio de legalidade processual e implica, portanto, por um lado, a recondução da unidade do pressuposto representado pelo mesmo objeto dos diferentes procedimentos; por outro lado, evitar soluções casuísticas, contrárias ao princípio de legalidade, em relação ao pressuposto da duplicação dos diferentes procedimentos que se refiram ao mesmo fato.

Recognition of Customary Court: Perspective of Judicial Power and Special Autonomy of Papua

The excellence of customary court for indigenous peoples of Papua as a peace justice institution which is one of the specific rights of Special Autonomy of Papua and it regulated in Article 50 paragraph (2) juncto Article 51 paragraph (1), and Article 43 paragraph (1) of Act No. 21 of 2001 in the field of executive. The recognition of customary court of Papua referred to as “traditional rights” in accordance with Article 18B paragraph (2) juncto Article 24 paragraph (3) and Article 28I paragraph (3) of the 1945 Constitution, its relevance to Article 35 paragraph (3) letter d and Article 58 No. 48 of 2009 and in Article 1 No. (5) of Act No. 49 of 2009 is not synchronized for indigenous peoples of Papuan that perform the function of customary court in the Judicial Power system in the field of judicative informally. The object of this study is related to the primacy of the recognition of customary justice: perspective of judicial power and special autonomy of Papua by using normative juridical method. The results indicate the weakness of the recognition of customary court of Papua against: 1) the institutional of customary court, 2) authority and 3) the decision of customary court over the case or the customary dispute and the principle of ne bis in idem in the function of Judicial Power. Its implementation raises the conflict of norms on the Acts of Judicial Power and the Special Autonomy of Papua. For future, the customary court of Papua needs to be a synchronization of the legal basis of the relationship of authority recognition in the Act of Judicial Power and the Special Autonomy of Papua, in order to fulfill a sense of legal certainty and justice for indigenous people of Papua as multicultural and customary law as the living law.

Country note: The Principle of Ne Bis in Idem: On the Ropes, but Definitely Not Defeated

In the A. and B. v. Norway case decided by the European Court of Human Rights (ECtHR) on 15 November 2016 (24130/11 and 29758/11), the principle of ne bis in idem suffered a significant blow. Via the Luca Menci (C-524/15), Garlsson Real Estate (C-537/16) and Di Puma (C-596/16 and C-597/16) cases, the European Court of Justice (ECJ) was confronted with a challenging decision: either stay with the path set out by the ECJ on 26 February 2013 in the Åkerberg Fransson case (C-617/10) or follow the ECtHR and thereby strike a knockout blow to the right that is guaranteed by the principle of ne bis in idem. In its judgments of 20 March 2018, the ECJ came up with a surprising solution.

On the limits of the ne bis in idem and lex retro non agit principles. Comments against the judgment of the Constitutional Tribunal regarding the so-called „Act on the Beasts”

On the limits of the ne bis in idem and lex retro non agit principles. Comments against the judgment of the Constitutional Tribunal regarding the so-called „Act on the Beasts”

Ne bis in idem: fundamental constitucional right applicable in the relationship between criminal law and the sanctioning administrative law

O objetivo deste trabalho é demonstrar que, diferentemente da práxis, o ne bis in idem constitui direito fundamental constitucionalmente garantido e deve ser aplicado na instância administrativa e na relação entre as vias penal e administrativa geral (decorrente do exercício do poder de polícia). Para tanto, utiliza-se como referencial a teoria da unidade do poder punitivo que, concebendo a repressão estatal em sentido, propõe que os princípios constitucionais limitadores do poder punitivo são aplicáveis em todas suas manifestações. Analisa-se o conteúdo e fundamentos do ne bis in idem, bem como sua aplicação na Espanha e conclui-se que se trata de direito fundamental inserido na ordem jurídica brasileira pelo art. 5º, §2º, da CRFB/88, devido a sua essencialidade na garantia de outros direitos fundamentais e à ratificação de tratados internacionais sobre direitos humanos pelo Estado Brasileiro. Dessa forma, sua aplicação na relação entre as instâncias não demanda outras normas além daqueles já existentes, pois decorre de sua natureza de direito fundamental e da supralegalidade dos tratados sobre direitos humanos, que leva a prevalência do ne bis in idem sobre disposições legais contrárias à sua aplicabilidade.

Solutions to the accumulation of different penal responsibilities for the same act and their assessment from the perspective of the ne bis in idem principle

The autonomous meaning of criminal responsibility introduced in the jurisprudence of the European Court of Human Rights, and adopted by the European Court of Justice (ECJ), has influenced the need for providing proper guarantees in relation to the assignment of legal responsibility for acts situated outside the core of criminal law. It has also helped to clarify that if the same act fulfils the description of a crime and an administrative offence, this may lead to an accumulation of penal responsibility. Assuming that the coexistence of various types of crimes and administrative offenses that may relate to the same act should not be eliminated, various legislative directives have been adopted as solutions that help to avoid the negative consequences of the accumulation of penal responsibility. Analysis of the directives adopted by the selected European legislators leads to formulation of four basic models on which the directives are based. They are assessed from the perspective of the ne bis in idem principle enshrined in Article 4 Protocol No 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 50 of the Charter of Fundamental Rights of the European Union.

The principle of ne bis in idem and the application of criminal sanctions: of scope and restrictions

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