Ne Bis In Idem is a Latin maxim which translates to ‘not twice in the same.’ In its essence this concept is a criminal law principle which dictates that a person cannot be punished and subject to several procedures twice for the same facts. Albeit this principle is one of the most fundamental guarantees in criminal procedure it essentially prohibits a second prosecution in cases that have already been concluded by a final decision ie. Res Judicata.
In Roman law, this principle was expressed through the maxim ‘Nemo debet bis vexari pro una et eadem causa’ which translates to; no one ought to be tried twice for one and the same cause. This was a fundamental aspect of the Roman legal system and influenced legal traditions that followed. The Athenian legal system also included a prohibition against trying someone twice for the same crime. This principle is also enshrined under article 50 of the Charter of Fundamental Rights of the European Union (“CFR”).
The notion of “same offence” or “idem” under the Member states’ legal traditions requires a triple identity: (i) of offenders, (ii) the material facts and (iii) the protected legal interests.
Considerations of the Principle under the Convention Implementing the Schengen Agreement of 19th June 1990 (“CISA”)
A broader notion of “idem” that only requires a double identity is laid down in article 54 of CISA which entails the prohibition of double prosecution of the same offender for the same “material acts.”
The Court of Justice of the European Union (“CJEU”) judgements on the matter are inconsistent and provide conflicting views. In certain instances, the CJEU requires the double identity ergo giving effect to Article 54 of CISA in so far as intrastate judicial cooperation is concerned, while requiring triple identity in areas such as competition law. However, in certain cases such as the Menci Judgement[1] the CJEU aligned the interpretation of the notion “same offence” found under article 50 of the CFR to the notion of “same acts” found under article 54 of CISA and based its reasoning on the double identity test.
Should a person face criminal penalties in addition to administrative penalties? Doesn’t this oppose the Ne Bis In Idem Rule?
In the Menci judgement the CJEU was required to provide insight and guidance into whether criminal proceedings against an individual for the same act can be brought after an administrative penalty had already been imposed for not having paid value added tax (“VAT”) In this case, the Italian tax authorities imposed an administrative penalty against Menzi, an Italian citizen.
After the decision became final, criminal proceedings with respect to the same acts were launched in Italy against Menci. The Italian courts argued that article 50 of the CFR must be interpreted as precluding national legislation allowing criminal proceedings to be brought against a person for failing to pay VAT and this despite that person having already been made subject to a final administrative penalty.
Following a preliminary reference, the CJEU assessed whether the proceedings and penalties at issue in the main proceedings were criminal in nature. The CJEU ruled by concluding that it is not contrary to EU law for Italy to initiate criminal proceedings against a person who has not paid VAT on time even though that person would have had already been subjected to an administrative sanction of a criminal nature and thus previously tried.
However, the ECHR in the case of ‘Sergey Zolotukhin vs Russia’[2] varied completely in handing down its judgement. In a nutshell, the court found that the Sergey was convicted of ‘Minor Disorderly Acts’ in administrative proceedings which are to be assimilated to “Penal Procedure” within the autonomous convention meaning of this term. After Sergey’s conviction became final, several criminal charges were raised against him. Of those, the majority referred to the applicant’s conduct at different times in different locations. However, the charge of “disorderly acts” referred to the same conduct as his previous conviction of “minor disorderly acts” and encompassed substantially the same facts.
Considering the foregoing, the ECHR considered that the proceedings instituted against Sergey under Article 213(2)(b) of the Russian Criminal code concerned essentially the same offence as that of which he had already been previously convicted of by final decision under article 158 of the Russian code of Administrative Offences. The ECHR declared that there has been a violation of article 50 CFR (Article 4 of Protocol No. 7)
The Ne bis in idem principle serves to protect individual rights, promote efficiency as well as consistency in different legal systems, prevent abuse of power and to align any legal system with international human rights. These reasons back up the application of this principle and uphold the arguments that the institution of criminal charges following administrative proceedings for the same conduct and the same offence should not take place and if it does, would be a blatant contradiction to what human rights establish.
Author: Dr Delilah Vella
For more information or assistance please contact Dr Robert Tufigno and Dr Delilah Vella.
[1] Menci (C‑524/15, EU:C:2018:197)
[2] 14939/03