This dissertation, containing three chapters, will respectively face three selected perspectives of the ne bis in idem itself. Although all the Chapters are generally intended to show how the European actors have taken action in order to extend the existing texts and partly to shape new ones, each of them is actually understood as a single monograph. Whilst enclosed in the same writing, the three parts are not conceived as an evolution of one another, rather as autonomous pieces. That is also the reason why the dissertation has no general conclusions. Giving an overall finding, indeed, was not the aim.
The principle of ne bis in idem is ultimately a norm of common sense. In essence, the rule is that the same individual should not face two or even more criminal proceedings for having committed the same material fact. Non-legal experts would ask themselves why so many academics do research on such an easy-understanding rule. If it is not questioned at the domestic level, at EU level and a fortiori at international level, it runs against the States’ sovereignty demands. In order to comply with the rule, States shall ether waive their jurisdiction or adjudicate it on the basis of a supranational duty. It is common knowledge how States are generally reluctant to be interfered with their criminal policies.
Nonetheless, the double jeopardy rules is in fact incorporated into several frameworks: Council of Europe Conventions, EU instruments, the Schengen Agreement, beyond other international instruments. On the one hand, such a copious occurrence may testify the States’ recognition of a sacrosanct principle. However, the other side of the coin is that the multiplicity of sources, especially where contemporarily applicable and where not linked by connection tools, leads to extreme fragmentation as well as to legal uncertainty. Historically, decisional law, which usually plays the role of settling complicate legal issues, was not consistent.
The first selected profile is that of the conflicts of jurisdiction. Since Europe has become a borderless area, trans-border crimes increased, and criminal proceedings against the offenders accordingly multiplied. While the fight against crime was strengthened, no efforts had been made for contain proliferation of double proceedings.
EU action in this regard simply did not exist until 2009, except for soft law documents. The latter has proved that there was awareness about the problem, but still political consensus has been never enough to go straight to the objective, namely having a binding system for settling jurisdictional conflicts. The Framework Decision is not decisive on such a point, but it postponed the moment when it will be tackled.
The second Chapter deepens what has been just touched on few lines above. It analyses the main sources of EU law on the ne bis in idem principle, also by the crucial angle of the judiciary, that seated in Strasbourg as well as in Luxembourg.
The third part is probably the most interesting, given the recent case law and its implications at domestic level. Most of the Member States’ criminal systems rely on administrative sanctions as a deflative instrument. However, non-criminal penalties are at times added to criminal ones, so establishing two channels of punishment. The ECJ as well as the ECtHR had the chance to rule about this arrangement and to affirm in which circumstances it does violate the ne bis in idem rule. It is also worth observing the progressive and mutual approach between the Courts, aware of the forthcoming EU’s accession to the ECHR.
In essence, it is hard-stating that there is a transnational common standard as to the ne bis in idem principle. Some tangles are still to be solved. Nonetheless, Courts are probably doing what States are not ready to put on writing.
- Ne Bis In Idem Profiles in EU Criminal Law, University of Florence