Rome Statute and UN tribunals
TheEuropean Court of Human Rights
Legal Framework
The legal basis for the ''non bis in idem'' principle in the European Court of Human Rights (ECtHR) is Article 4 of Protocol No. 7 to the European Convention on Human Rights. Section 1 of Article 4 outlines the procedure relevant to rights against being prosecuted or punished twice in criminal proceedings. Thus, trials involving breaches of ''non bis in idem'' can only be commenced contingent on the criminal nature of the tried act, the duplication of proceedings seen via the ''bis'' concept, and the same offense seen via the ''idem'' concept—as discussed infra. Questions pertaining to the scope of ''non bis in idem'' have been developed relevant to administrative and tax affairs, which sometimes are not tried under criminal courts at the national level despite their “criminal nature.” Accordingly, Section 2 of Article 4 establishes the right for the accused to present newly discovered evidence to higher tribunal for review. While there exist guarantees against punishment or prosecution twice under the ECHR, post-trial discovery can warrant a change in the outcome of a case. This also includes significant procedural errors that may affect the fairness or outcome of a case. However, reopening a case through the ECtHR can only occur when critical pieces of evidence were not sufficiently adduced or discussed, necessitating a referral to the Grand Chamber. Finally, Section 3 of Article 4 prevents the full protections of ''non bis in idem'' under the conditions of Article 15 of the Convention, which includes during war and times of national public emergencies.Engel Criteria
To determine the criminality of an offense in ''non bis in idem'', the Court refers to the “ Engel criteria,” taken from its judgment in ''Engel and Others v. Netherlands'' App no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72 (ECtHR, 8 June 1976)''.'' This is critical to assess when penalties that are not considered criminal at the national scale should be treated as “criminal” for the purposes of invoking ''non bis in idem'' protections. The three criteria are as follows to determine if a penalty is of “criminal nature”: (1) the national classification of the offense, (2) the criminal nature of the offense, and (3) the severity of the penalty. If penalties are primarily intended to compensate for the shortfall and encourage future compliance, they may not be considered criminal according to the severity and purpose principles of the Engel Criteria—as seen in certain cases related to tax withholding. Through the application of these criteria, the ECtHR can ensure that states do not circumvent human rights protections through non-criminal punitive measures at the national level and harmonize criminal proceedings at the ECtHR.The Criminal Nature Requirement
''Kremzow v. Austria'' App no. 16417/90 (ECtHR, 7 November 1990)
Since considerable cases that have reached the ECtHR have involved applicants with both criminal offenses along with disciplinary proceedings, ''non bis in idem'' has become a principal issue when assessing if the disciplinary proceedings also have reached a criminal nature. In '' Kremzow'', the applicant, who was a retired judge sentenced for murder and unlawful possession of a firearm, appealed to the ECtHR based on the “criminal nature” of his disciplinary proceedings. These disciplinary penalties included the deprivation of his former privileges as a judge, such as his pension rights. Thus, he claimed that his rights relevant to Article 6 of the ECHR were violated, implying that the Engel criteria were relevant in raising his disciplinary proceedings. If the Court deemed the disciplinary charges criminal in nature, his rights under ''non bis in idem'' would be violated. Ultimately, the ECtHR concluded that application was inadmissible and upheld the indictment decided by the Vienna Court of Appeal acting as Disciplinary Court (Oberlandesgericht als Disziplinargericht). The ECtHR decided that the disciplinary proceedings did not reach a criminal level according to the Engel Criteria, thus not constituting a break of Article 6. Regarding the national standards of the Engel Criteria, while the ECtHR agreed that Kremzow had separate criminal charges, the disciplinary consequences were distinguished, and the Disciplinary Court did not “convict” him for the aforementioned criminal charges. Thus, the duty of the Disciplinary Court in Austria was tasked with dealing with the repercussions of Kremzow’s actions as a defendant but also as a''Ruotsalainen v. Finland'' App no. 13079/03 (ECtHR, 16 June 2009)
'' Ruotsalainen'' tested the scope of ''non bis in idem'' relevant to the criminal nature of national administrative proceedings and penalties. The applicant, a Finnish national, was stopped by the police in 2001 during a road check when police found Ruotsalainen to be driving with leniently taxed fuel that was illegal given his type of vehicle. Thereafter, he was charged for petty tax fraud due to the illegally cheaper fuel alongside his admission to refueling the vehicle himself. Ruotsalainen was charged the difference between the tax in administrative proceedings brought against him from the same event. When domestic authorities refused to grant a reduction in the tax charge, Ruotsalainen brought the case before the ECtHR. According to his complaint, he cited that his rights pursuant to Article 4 of Protocol No. 7 were breached since he was penalized twice for the fuel tax offense. The ECtHR decided that both penalties imposed upon Ruotsalainen were criminal in nature with the first contingent upon the classification of Finnish criminal law and the second, although administrative technically, had a “criminal nature” due to its intent to punish and dissuade a repeated offense. While both penalties were handled separately, they converged towards the same criminal subject matter. Thus, the Court concluded that there had been a violation of ''non bis in idem'' according to Article 4 of Protocol No. 7.The ‘Bis’ (Duplication of Proceedings) Requirement
''A and B v. Norway'' CApp nos. 24130/11 and 29758/11 (ECtHR, 15 November 2016)
''A and'' ''B'' was a landmark case since it established the “substance and time connection” requirement relevant to assessing a duplication of proceedings in ''non bis in idem''. The two applicants, represented through aliases Mr. A and Mr. B, were charged for failing to report taxes. The first applicant—Mr. A—was indicted for violating section 12-1(1) of the Tax Assessment Act of 1980 (ligningsloven) for failing to declare tax transactions with Software Innovation AS in 2008. In 2009, following his failure to pay an outstanding tax due without an appeal, the Follo District Court (tingrett) convicted Mr. A of aggravated tax fraud, sentencing him to a year’s imprisonment due to his failure to declare. The second applicant—Mr. B—similarly failed to declare his tax return for the tax year 2002 but was given an amendment to his tax assessment and penalty in 2008 by the Tax Administration under the criminal investigation. While the second applicant paid the tax due along with the penalty, the public prosecutor indicted him for violating section 12-1 as well given his failure to declare his full income on his tax return in 2002. Like Mr. A, Mr. B was charged for aggravated tax fraud and sentenced to a year’s imprisonment in 2009. Given the criminal and tax penalties of their respective cases, the two applicants contended that their rights relevant to ''non bis in idem'' were violated according to Article 4 of Protocol No. 7 ECHR. The primary task of the ECtHR was to examine whether the invocation of section 12-1(1) of the Tax Assessment Act and the aggravated tax fraud charge were both criminal, which would jeopardize the protections of Mr. A and Mr. B. First, the ECtHR acknowledged that due to the optional ratification of Article 4 of Protocol No. 7 ECHR, the Court generally had to acknowledge national sensitivities to defining the “criminal nature” of an act. This reiterated the first principle of the Engel criteria. Secondly, the Court addressed the chronology of the two proceedings and found that a “final decision” resulting from a single proceeding was irrelevant when there did not exist a duplication of proceedings. Instead, this would constitute a combination of proceedings, meaning they were complementary. Finally, to avoid misinterpreting administrative proceedings that were criminal in nature, the ECtHR would assess the proceedings’ compliance with Article 4 through a single-track procedure onwards, which could enable “parallel strands of legal regulation” with the national government. Since the Court separated the criminal and administrative procedures of the case, ''non bis in idem'' could only be violated in dual proceedings when there existed “complementary responses to socially offensive conducts” that were integrated in a way to demonstrate a “coherent whole” of indictments from the original criminal and administrative facets of the penalties. Moreover, ''A and B'' set the precedent of requiring “sufficiently close connection in substance and in time” between proceedings according to the ''bis'' principle, or duplication of proceedings. The substance and the chronological closeness of proceedings were not intended to be mutually exclusive but to be assessed conjunctively to justify the relevance of both cases and guarantee the protections of individuals from unduly delay over prolonged proceedings. The Court ruled in both applicants’ cases that their respective criminal and administrative proceedings had proportionate and foreseeable cumulative penalties. Thus, the Court ruled there had not been a violation of ''non bis in'' idem according to Article 4 of Protocol No. 7.''Marguš v. Croatia'' CApp no. 4455/10 (ECtHR, 27 May 2014)
''Marguš'' was a Grand Chamber judgment that dealt with an alleged duplication of criminal offenses under a change in international war crimes law. The applicant, a Croatian national, was tried by the Osijek Military Prosecutor in 1993 on the grounds of serious offense against civilians through the Croatian army in 1991. However, with the establishment of the General Amnesty Act in 1996, which applied to criminal offenses from theThe ‘Idem’ (The Same Offense) Requirement
''Gradinger v. Austria'' App no. 15963/90 (ECtHR, 23 October 1995)
In '' Gradinger'', the applicant faced criminal and administrative punishment based on the same offense but at a regional and national level. The applicant was convicted of driving under the influence and death by negligence, resulting in fines and imprisonment first under Article 81 of the Criminal Code and then Section 5 of the Road Traffic Act in Austria. After failing to appeal his convictions under the ''non bis in idem'' principle in the Austrian legal system, Gradinger brought an appeal to the ECtHR citing a violation of Article 4 of Protocol No. 7 on the premise that the administrative and criminal proceedings pursued against him were based on identical facts from the same offense. The Court determined that despite the administrative action in the procedures, they were criminal in nature based on the fact that Gradinger’s fine was accompanied with a prison sentence contingent on his default on payment. Thus, Gradinger’s case fulfilled the initial prong of the Engel criteria and could be assessed for potential violations of the dual-track criminal and administrative sentence. Due to the inherently criminal nature of the two proceedings regarding the same offense, the Court determined that his rights under Article 4 of Protocol No. 7 were violated.''Zolotukhin v. Russia'' App no. 14939/03 (ECtHR, 10 February 2009)
'' Zolotukhin'' was a landmark case brought before the Grand Chamber of the ECtHR, which broadened the ''idem—''or same offense principle—and harmonized the procedural laws for multiple prosecutions in contracting states in the CoE. It also established the precedent of “criminal procedure” in Article 4 of Protocol No. 7 to take into account broader application related to “criminal charge” of Article 6 and “penalty” of Article 7. Since ''Zolotukhin,'' both theCourt of Justice of the European Union
Legal Framework
The legal basis for the ''non bis in idem'' principle for the Court of Justice of the European Union (CJEU) is Article 50 of the EU Charter of Fundamental Rights, which is applicable in allThe Criminal Nature Requirement
''Case C-617/10, Åklagaren v. Hans Åkerberg Fransson'' (2013)
In '' Åkerberg Fransson'', the ''non bis in idem'' principle in Article 50 of the Charter was tested if it could be invoked to prevent criminal proceedings for tax evasion contingent on an existing administrative tax penalty. Accordingly, Fransson was tried in Sweden by tax authorities on the grounds that he falsified his value added tax and income tax. Thus, he had been fined by the Swedish government with administrative tax penalties. Subsequently, Fransson was tried for failing to report sizable employer’s contributions in taxes, culminating to a criminal offense due to the copious amounts of money not reported and the significant impact of his failure to declare. Accordingly, Fransson brought the matter to the''Case C-27/22, Volkswagen Group Italia S.p.A., Volkswagen Aktiengesellschaft v. Associazione Cittadinanza Attiva Onlus'' (2023)
In '' Volkswagen Group Italia and Volkswagen Aktiengesellschaft'', the CJEU handled whether an administrative fine by a national consumer protection authority against a company could become criminal in nature when addressing unfair commercial practices and consumer protection under Directive 2005/29/EC. In 2016, the Italian Competition Markets Authority (AGCM) fined both Volkswagen Group Italia (VWGI) and Volkswagen Aktiengesellschaft (VWAG) 5 million euros on the basis of unfair commercial practices in the automobile industry by distorting their pollutant emissions levels on their vehicles’ interfaces. While VWGI and VWAG were still involved in proceedings with the Italian Regional Administrative Court, the Public Prosecutor’s Office of Braunschweig in Germany imposed a fine of 1 billion euros through a final decision on the same grounds of the misinformation related to Volkswagen’s pollutant emissions levels. Due to the final decision characteristic of the decision at Braunschweig, VWAG surrendered its right to bring action against the decision as it had appealed in Italy, leaving Volkswagen with its 1 billion euro fine alongside a pending case dealing with a similar case matter. Once the decision was reached in 2019, VWGI and VWAG contended that their rights according to ''non bis in idem'' under Article 50 of the Charter and Article of the 54 CISA had been violated. By contending the matter to the CJEU, VWGI and VWAG posited that the administrative fines reached a criminal level, therefore hindering their protections from punishment twice. In response, the Court agreed with the applicants that their rights pertaining to ''non bis in idem'' under Article 50 were breached. The Court’s premise laid on the idea that the imposed administrative fine constituted a criminal penalty due to its punitive purpose and higher degree of severity. The nature of the penalty was tested through the Engel criteria, which it passed. As for the former prong related to its punitive purpose, the CJEU held that the cited violation of Article 27(9) by the AGCM had a purpose not just to punish unlawful conduct related to competition practices but to deprive an entity from continuing to pursue its unfair commercial advantage. As for the latter prong related to the degree of severity, the CJEU noted that bearing in mind the maximum potential penalty contingent on relevant provisions, the 5 million euro fine constituted a criminal punishment. While in technical terms, the penalties were under administrative code, they were inherently criminal and cited twice, demonstrating the utility of the Engel criteria in ''non bis in idem'' procedure through the CJEU.The ‘Bis’ (Duplication of Proceedings) Requirement
''Cases C-187/01 and C-385/01, Gözütok'' and ''Brügge'' (2003)
In '' Gözütok'' and ''Brügge'', the CJEU dealt with legality of the preclusion of further prosecution given the discontinuation of criminal proceedings in another Schengen Agreement member state under Article 54 of CISA. In ''Gözütok'', the applicant was in possession of illicit hashish products, which the Dutch government cited to pursue criminal proceedings against him. These conditions were also drawn to the attention of German authorities through a German bank alerting them of unusually large sums of money. This led to the discovery of narcotic sales, which the German Regional Court in Aachen tried and sentenced him for. Gözütok appealed the decision against the Aachen court, which they terminated under Article 54 of CISA. However, under the termination, questions remained over whether the Dutch “transactie” under Dutch law served as a final disposition that barred the German courts from taking further action. Similarly, under ''Brügge'', the applicant, who was a German national, was charged by Belgian prosecuting officials for intentionally assaulting and wounding a Belgian national, Leliaert. While proceedings were ongoing in a Belgian criminal court, Brügge had already reached a conclusion in a settlement with the German judicial authority, thus raising questions over a duplication of proceedings across Schengen Agreement member states. The Court ultimately ruled that the ''non bis in idem'' rights under Article 54 of CISA were violated in ''Gözütok'' and ''Brügge''. The CJEU confirmed the applicability of the ''non bis in idem'' principle such that once the applicant fulfills outlined obligations or negotiations with the public prosecutors, the discontinuation of proceedings constitutes a procedure that cannot be tried again in another member state. The CJEU underscored the initial legal ability of the public prosecutor to discontinue prosecution as an option under the administration of criminal justice. Nevertheless, settlement acts regarding penalties for unlawful conduct still constitute a legal exercise by the state to punish an individual. If the applicant complies with obligations by the public prosecutor, which Gözütok and Brügge did, an additional penalty or prosecution from another Schengen member state is redundant and violates the protections against a duplication of trial under Article 54. Because of the devolvement of power into national courts under CISA, harmonization of criminal procedures (e.g., Dutch “transactie”) is not required. That said, the Court clarified that mutual trust and compliance amongst the member states was necessary to ensure the ''effet utile'' (effective application) of Article 54 and protect individuals’ enshrined rights under Article 54 of CISA. Thus, ''Gözütok'' and ''Brügge'' served as principal cases to bolster the ''“bis”'' requirement of ''non bis in idem'' by establishing the preclusion of further prosecution at the national level within the EU.''Case C-486/14, Kossowski'' (2016)
In '' Kossowski'', the CJEU was concerned with whether a decision by a public prosecutor to terminate criminal proceedings and close an investigation against a defendant, without any penalty and a condition that it may be reopened upon the emergence of new essential evidence, may be considered a “final decision.” If so, questions were raised if such a decision could prevent further prosecution in another member state. Accordingly, the public prosecutors’ office of Hamburg accused Kossowski of the criminal offense of extortion with aggravating factors. Kossowski fled in a vehicle belonging to the victim during his proceedings in Germany when he was subsequently stopped, arrested, and sentenced in Poland. The Polish court opened the same charges against him according to its national law but closed the case in the absence of sufficient evidence and considered the termination as final, leading to the potential continuation of the case in Germany. Despite still being wanted in Germany, the Hamburg court refused to open proceedings out of concern of doubling prosecution in violation of Article 54 of CISA. Thus, the CJEU heard an appeal brought forth by the Hamburg Public Prosecutor’s Office contending that the German law was still applicable given the substantial evidence of its proceeding, finding the Polish decision of termination to be overreaching in barring the respective German trial. In its decision, the Court ruled that ''non bis in idem'' was not violated in ''Kossowski'' since it realized that the Polish termination was not considered “final” to invoke Article 54. Thus, reopening proceedings in Germany would not constitute a duplication of proceedings. A fundamental facet of Article 54 is the requirement of a decision made “after a determination has been made as to the merits of the case.” In such, the requirement is not fulfilled when a prosecuting authority failed to undertake a thorough investigation, refused to proceed based on the defendant’s ability to give a statement, or failed to provide substantial hearsay witness testimony. Accordingly, this applies in ''Kossowski'' whereby the Polish courts failed to gather substantial evidence to fully administer proceedings and potential penalties to the defendant. ''Kossowski'' therefore confirmed two key tenets of the ''bis'' principle: (1) a final decision in proceedings from one member state must bar further prosecution and penalty in another member state and (2) a decision must be delivered “after a determination has been made as to the merits of the case.”The ‘Idem’ (The Same Offense) Requirement
''Case C-436/04, Van Esbroeck'' (2006)
In '' Van Esbroeck'', the CJEU assessed the relevant criterion for the application of the “same acts or offense” criteria of ''non bis in idem'' in the frame of material acts. The defendant, a Belgian national, was tried and sentenced in Norway for importing illicit narcotics. Van Esbroeck was conditionally released and escorted back to Belgian whereupon his return he was tried and convicted for exporting the aforementioned illicit narcotics. An appeal was then brought before the Belgian Court of Cassation and the preceding court on the grounds that Van Esbroeck’s ''non bis in idem'' rights were violated under Article 54 of CISA. In response, the CJEU ruled that ''non bis in idem'' was violated given the existence of “inextricably linked” facts. Regardless of the legal classification, affirming the criminal nature of the acts, the punishable acts of importation in Norway and exportation in Belgium of the same narcotic drugs constitutes “the same acts,” which are protected under ''non bis in idem''. While the CJEU reiterated that definitive assessment would ultimately be under the jurisdiction of the respective national courts, the same offense in ''Van Esbroeck'' prevented his re-trial and second punishment.The Schengen Nature Condition
''Case C-435/22 PPU, Generalstaatsanwaltschaft München (2023)''
In '' Generalstaatsanwaltschaft München'', the CJEU addressed whether the ''non bis in idem'' principle outlined in Article 54 of CISA with Article 50 of the Charter could preclude the extradition of a third-country national from aSee also
*Notes
References
{{Authority control Legal rules with Latin names Legal doctrines and principles