Non bis in idem

Non bis in idem, which translates literally from Latin as "not twice against the same [thing]", is a legal doctrine to the effect that no legal action can be instituted twice for the same cause of action. It is a legal concept originating in Roman civil law,[1] but it is essentially the equivalent of the double jeopardy (autrefois acquit) doctrine found in common law jurisdictions.

The International Covenant on Civil and Political Rights guarantees the right to be free from double jeopardy; however, it does not apply to prosecutions by two different sovereigns[2] (unless the relevant extradition treaty expresses a prohibition). The Rome Statute of the International Criminal Court creates a different form of non bis in idem.

Rome Statute and ad hoc UN tribunals

The Rome Statute establishing the International Criminal Court (ICC) states that the non bis in idem principle has a peculiar meaning, especially in comparison to European supranational law. The ICC jurisdiction is complementary to national law, and Article 20 of the Rome Statute specifies that even if the principle remains in general terms, it cannot be taken in consideration if there is unwillingness or incapability of the existence of the supranational court's jurisdiction. Article 10 of the ICTY Statute and Article 9 of the ICTR Statute both state that the principle can be enforced mainly to clarify that the ad hoc tribunal's sentences are "stronger" than the ones in domestic courts.

In other words, national courts cannot proceed against the responsible parties of crimes within the tribunal's jurisdiction if the international tribunal has already pronounced sentence for the same crimes. However, the ICTY and the ICTR can judge alleged criminals already sentenced by national courts if both of the following occur:

  • the sentence defined the crimes as "ordinary".
  • the judiciary of the state is not considered impartial or the domestic trial is considered to be a pretense to protect the accused from the legal action of international justice or is considered to be unfair on some fundamental legal basis.

European Court of Human Rights - Zolotukhin vs Russia

European Court of Human Rights ruling in the case Zolotukhin vs Russia have had a noticeable impact on practical law in Europe.

The double punishment ban applies to all forms. The verdict in the case Zolotukhin / Russia [3] on February 10, 2009 of the European Court of Human Rights is about a Russian military discipline case. The Russian soldier Sergey Zolotukhin took his girlfriend into the military without permission, acted threateningly, used an obscene language and insulted the police officers who arrested him. Eleven years later, the conflict over the Russian soldier's punishment, both administrative and criminal, has had consequences for double punishments throughout Europe.

Especially in tax fraud cases the ruling has changed many court cases after the February 10, 2009. The defendant has paid tax fines to the tax authority for incorrect tax declarations, then being sentenced by a district court for tax crimes. After the European Court of Human Rights ruling being released and compensated for time in prison.

European Court of Justice

The ECJ has ruled that ne bis in idem only applies in competition law cases if the offender, the facts and the protected legal interests are the same.[4]

See also

References
  1. Buckland, W.W. (1963). A Text-book of Roman Law from Augustus to Justinian (3 ed.). Cambridge: Cambridge UP. pp. 695–6.
  2. For example, see A.P. v Italy, UN HRC CCPR/C/31/D/204/1986
  3. "HUDOC - European Court of Human Rights". hudoc.echr.coe.int. Retrieved 2020-02-27.
  4. ECJ14 February 2012, nr. C-17/10, Toshiba.


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