Non Bis In Idem Research Articles

Problems of Ensuring the “non bis in idem” Principle the Collection of the Enforcement Fee and the Main Remuneration in Enforcement Proceedings

Problems of Ensuring the “non bis in idem” Principle the Collection of the Enforcement Fee and the Main Remuneration in Enforcement Proceedings

Implementation of International Legal Frameworks to Combat Domestic Violence in Ukraine and Colombia

This article provides a comparative analysis of law enforcement’s approach to domestic violence in Ukraine and Colombia, two countries with vast cultural and demographical differences. Drawing upon an extensive review of existing literature and empirical research, the study delves into the various ways in which law enforcement can play a part in the restoration of fundamental rights for victims, shedding light on its underlying factors of systematicity and non bis in idem, and the interplay of individual, legal, and societal influences. It begins by defining domestic violence and identifying how, from a legal standpoint, both countries have addressed the physical, emotional, sexual, and economic abuse suffered by victims of domestic violence. The article discusses potential solutions and emphasizes the importance of implementing relevant international and regional instruments. Overall, it aims to deepen the understanding of domestic violence in Ukraine and Colombia by synthesizing existing research, highlighting the complex dynamics involved, and exploring strategies for prevention and intervention by law enforcement. By raising awareness and fostering a comprehensive approach, it contributes to the collective efforts intended to eradicate domestic violence and create a safer and more equitable society for all.

Ensuring the Principle of Legal Certainty as a Way to Counteract the International Terrorism

Introduction. Due to its antisocial and destructive nature, terrorism constitutes a particular threat to the public, national and international security. It is one of the global problems of our time, which leads to the increased tension, has the high conflict potential and extremely negative effect on development and life of a society, a separate state and the globalcommunity on the whole. Cooperation between the national states and the international organisations for combating the international terrorism is most often restricted to the individual cases. In this context, the principles of law, which represent the concentrated essence of the universal values and ideals underlying the legal regulation of the social relationships, become particularly acute and relevant. The present article aims to analyse the theoretical and practical aspects of the principle of legal certainty in counteracting the international terrorism. Materials and Methods. The object of the study is the principle of legal certainty as a tool of counteracting the international terrorism. The dialectical method of cognition was used as the main research method, the general scientific methods of analysis, synthesis and the specific legal methods (empirical and legalistic) were also used. Results. It has been proved that the spread of extremism and terrorism constitutes a threat to the present day international and national legal order. The necessity to formulate a unified general definition of the concept of “terrorism” and to implement the principle of legal certainty in counteracting the international terrorism has been substantiated. Discussion and Conclusion. The research has revealed the need for an optimal and efficient solution for implementation of the non bis in idem (“not twice for the same”) principle with regard to the terrorist crimes (primarily of the international nature), endowing the universal jurisdiction over them, which allows criminal prosecution of the criminals regardless of their location, citizenship or territory, where the individual crime has been committed. The theoretical and practical value of the results obtained is the capacity thereof to be used both in the field of scientific research (for further theoretical study of the problems of counteracting the international terrorism) and in the field of law-making (for improving the Russian Federation legislation on counteracting terrorism). Bearing in mind future research, the special attention should be paid to the optimisation of the legal framework, enhancement of the regulatory legal mechanisms aiming to prevent in an optimal way the international terrorism as a social phenomenon.

Legal Consequences of Economic and Environmental Damage Caused to Ukraine by Russia

"The article discusses the issues of holding the Russian Federation accountable for violating international humanitarian law in the context of economic and environmental damage caused to Ukraine during the military invasion. The authors trace historical parallels, from Germany’s payment of reparations after World War II to compensation for damages after Iraq’s invasion of Kuwait. It is emphasized that due to the specifics of modern international law, its norms, for example, the norms of the UN Charter, the charters of other international organizations, the norms of international customs, do not contain specific instructions on the scope and forms of responsibility, but provide for the right to coercion, regulating the conditions and procedure for the application of international law legal sanctions. In other words, in public international law, the concept of “sanctions of a legal norm” is associated not with forms of responsibility, but with coercive measures themselves. The attribution of sanctions to forms of responsibility can be used by the state-offender to justify the refusal to fulfill the obligations arising from its responsibility, citing the fact that it has already incurred responsibility, since sanctioned coercive measures were applied against it. Recognizing that international legal sanctions are the quality of coercive measures themselves, and not forms of responsibility, deprives the offending state of the opportunity to invoke the principle of non bis in idem and clearly assumes that, in addition to the deprivations caused by these measures, the Russian Federation, as an offending state, must bear responsibility in volume, types, and forms commensurate with the nature of the offense and its harmful consequences."

Forum Contribution: Tax Penalty Regimes, A Call for Harmonization

Recent Court of Justice of the European Union (CJEU) and European Court of Human Rights (ECtHR) judgments imply that some form of ‘European Intervention’ providing for a coordinated approach towards the determination, and quantification of tax penalties has become necessary. Disproportionate tax penalties and concurrent penalties pose a serious hurdle to achieving the European Commission’s political mission to put a tax system in place ‘where everybody pays their fair share’ of taxation. Given current judicial trends, the situation calls for the creation of an ad hoc taxpayers’ charter which imposes red lines for tax penalty regimes. Matters such as ultra duplum, minimus vitalis, non bis in idem, ceiling rates for cumulative penalties and the coordination of punitive measures call for an element of harmonization. Tax harmonization, Disproportionate penalties, Minimum Vitalis, Fundamental Human Rights, The EU Charter on Human Rights, European Court of Human Rights, Non Bis In Idem, Taxpayers’ Charter, Tax penalties, Concurrent Tax Penalties

Towards a Taxpayers’ Rights-Compliant Cross-Border Recovery of Tax Sanctions

A faltering procedure for cross-border enforcement of sanctions under the Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures (TRD), has contributed to a degree in uncertainty and a wavering protection of taxpayers' rights. Against this background, the article proposes taxpayers’ rights (due process, proportionality, non bis in idem) as minimum standards for the applicability of the TRD in the area of tax sanctions. In this regard, the article revisits the scope of the TRD, and advocates for a standardization of the definition of sanctions to whose recovery the TRD is applicable (namely, amounts imposed for deterrent purposes, definitively imposed after due process of law and respecting minimum parameters of proportionality). These minimum requirements should be regarded as essential to the cross-border recovery of tax sanctions, as they stem from EU law as part of its fundamental principles. Hence, due process, proportionality and non bis in idem standards should be fully enforceable by the requested state, without prejudice to the Member States’ broad discretion in defining and applying tax sanctions, providing taxpayers with adequate protection and further certainty.

The Right Against Double Jeopardy (Non Bis In Idem) in the Constitutions of African Countries

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”. In human rights law, this is referred to as the right against double jeopardy (non bis in idem). The ICCPR has been ratified or acceded to by all African countries with the exception of Comoros and South Sudan. This implies, inter alia, that African countries must ensure that the right against double jeopardy is protected in their legislation. In this article, the author examines the constitutional provisions of all the African countries to analyse the extent to which they deal with the right against double jeopardy. The author also refers to legislation and case law from different African countries to demonstrate the circumstances in which a person who has been convicted or acquitted may be prosecuted again for the same offence (retrial) without violating their right against double jeopardy. The discussion shows, inter alia, that some of the constitutional provisions on the right against double jeopardy are contrary to art 14(7) of the ICCPR and some constitutions are silent on the right against double jeopardy. However, this loophole is rectified through subsidiary legislation or direct or indirect incorporation of art 14(7) in domestic legislation.

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.

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.

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.

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.

Is there a violation of the principle of double trial (Non Bis In Ídem) in organized crime offenses and their offenses, fines?

In today's social and legal situation, organized crime or crime is a phenomenon that occurs repeatedly, but under different forms or modalities that range from peaceful but subtle actions and others, violent and open. This has occurred especially in the phenomenon involving drug trafficking, human trafficking and arms trafficking. Being, in addition, criminal modalities that in themselves and by their very nature are very dangerous. The foregoing translates into the importance and significance of implementing at the state level and at the global level, criminal policies aimed at combating organized crime; however, these criminal policies must be respectful of due process and the basic guarantees that inform it, including, the principle of prohibition of double trial and punishment, known as non bis in idem, constituting the object of our work. The methods used from the theoretical level were the logical historical and the synthetic analytical, and from the empyrean the document analysis, and the analytical exegetical.

Материальный и процессуальный аспекты принципа non bis in idem в производстве по делам об административных правонарушениях

The essence of the principle of one-time administrative responsibility is considered, its concept and proposals for improving the provisions of the Code of Administrative Offenses of the Russian Federation are formulated. The conclusions are based on the provisions of the legislation on administrative offenses, the legal positions of the highest courts of the Russian Federation, the European Court of Human Rights, a comparative analysis of the current criminal and criminal procedure legislation. The operation of the principle non bis in idem in proceedings on the cases of administrative offenses is revealed by highlighting the material and procedural elements that make up its content.

Liability for environmental crimes in the non bis in idem principle context

In light of the social need for the humanization of criminal policy, annually confirmed by the supreme authorities of the state, the specialized literature has updated the topic related to the prohibition of double jeopardy (it protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction and against multiple punishments for the same offense). This issue is analyzed by researchers in the context of the «non bis in idem» principle, which has received regulation both in the norms of national and international law. An analysis of the law enforcement practice of the judiciary in considering criminal cases on the fact of violation of public relations in the field of environmental protection (Chapter 26 of the Criminal Code of the Russian Federation) indicates the permissibility of double, and in some cases triple, intersectoral liability of the perpetrator of crimes. It seems that the legitimacy and the possibility of deprivation and legal restrictions in relation to citizens have been found guilty of committing a crime and who have served the sentence imposed by the court in full does not correspond to the principle of “non bis in idem”, which actualizes the chosen research topic.

일사부재리 위반을 이유로 한 각하 심결에 대한 취소소송의 심리범위

일사부재리 위반을 이유로 한 각하 심결에 대한 취소소송의 심리범위

PROCESO PENAL DE JESUCRISTO: INIQUIDADES Y ANTAGONISMOS ENTRE EL VETUSTO DERECHO PENAL HEBREO Y EL DERECHO PENAL ROMANO

This analysis is based on a thorough investigation into the jurisdictional criminal profile proceedings against Jesus Christ, plagued by iniquities, malignancies, elucidated in two antagonistic judgments: one, the Religious Judgment or Jew before the Sanhedrin and the Political Judgment before Pontius Pilate, of Roman power, and subjected to asummary and laconic judgment. If we make a retrospective procedural legal vision of the trial of Jesus Christ by the Jewish authorities, ab initio, and later by the Roman iurisdictio, in the light of the new Ecuadorian Integral Criminal Organic Code (2014), of a guarantee, accusatory court, of transversal orality and adversarial, it must be asserted, withall conviction, that It did not refer to the minimum international standards of the constitutional due process guarantee , effective jurisdictional protection and the unrestricted respect for the right to defense by a lawyer of his free choice or of the Attorney General's Office of the State. By virtue of the analytical-synthetic and dialectical method, comparedto the descriptive exploratory scope inclined to accurately show the angles or dimensions of the most famous criminal trial of humanity, the investigation contains the condemnation of an innocent person to death for a political crime the Sedition, which Jesus did not perpetrate. Such a condemnation repealed the one decreed by the Sanhedrin, that is to say, that of “Blasphemy” which made it consist of the fact that Jesus repealed the endowment of being a son of God, injurious at the beginning –non bis in idem–, among other flagrant procedural violations, in which the inconsistency of the form can only be matched by the iniquity of the fund.

El procedimiento administrativo sancionatorio en el marco de las empresas de servicios públicos domiciliarios: aproximación teórica a sus postulados básicos

La Superintendencia de Servicios Públicos Domiciliarios se encarga de la inspección, vigilancia y control de las empresas de servicios públicos domiciliarios. Dentro de ese contexto, dicha autoridad administrativa tiene la facultad de imponer sanciones a tales prestadoras, para lo cual se sirve del procedimiento administrativo sancionatorio general consagrado en la Ley 1437 de 2011 en concordancia con otras normas de orden sustancial dispersas en el ordenamiento normativo nacional, que determinan las sanciones a imponer, pero especialmente los criterios bajo los cuales ha de ejercerse dicha potestad. Sin embargo, no existe claridad suficiente en relación con si la forma en la que están dispuestos estos instrumentos jurídicos realmente conduce al cumplimiento de los postulados básicos de cualquier procedimiento administrativo sancionatorio, esto es, si se garantiza el principio de legalidad, la tipicidad, la oportunidad, la gradualidad, el derecho de defensa, el non bis in idem y otras garantías inherentes al debido proceso que debe preceder a la imposición de las sanciones que pueden llegar a imponerse a las empresas de servicios públicos domiciliarios. Y es dentro de ese contexto que el presente artículo ofrece una aproximación a los elementos jurídicos y teóricos que permiten definir si el procedimiento administrativo sancionatorio en cuestión satisface los postulados básicos que deben ser inherentes a este tipo de actuaciones.

How to Understand non bis in idem?: The Element of idem According to the ECtHR

The European Court of Human Rights essentially has three approaches on the issue of the interpretation of idem within the context of the non bis in idem principle, namely “same conduct test”, “essential elements test” and “same act test”. These three interpretations are highly open to criticism. In this regard, it is clear that a new concept is necessary to distinguish act in terms of substantive criminal law and act in procedural criminal law practice. In order to determine what constitutes an idem, one should consider the concept of “procedural act”. Moreover, I contend that providing a concrete and consistent interpretation of idem depends on the differentiation of the terms idem and same 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.