The Principle of ne bis in idem and Its Transnational Application
Date Issued
2012
Date
2012
Author(s)
Shaw, Yung-Liong
Abstract
The guarantee of ne bis in idem is rather complex. In 2002 the ECHR observed that its case-law on this subject was not especially well developed, a fact which can be explained not only by the small number of cases which have come before the Strasbourg organs, but also by some obvious contradictions in the jurisprudence. This Master Thesis will focus on a comparison of the texts of the different normative instruments followed by a general overview of the development of the guarantee as a human right. Thereafter the aim and purpose of the right, the scope of its application, and the exceptions to the principle will be discussed.
The ECHR used to make it very clear that the double-jeopardy principle can only be applied at national level. In other words, from the perspective of the ECHR, a person may legitimately be tried again for an offence which has already been the object of conviction and sentencing in a different state. However, with the entering into force of the regulation of the European arrest warrant, judgments passed in one Member State are valid for all other Member States. Therefore the European Union will have to be considered as a "state" as far as the protection against double jeopardy is concerned.
Furthermore, Article 50 of the Charter of Fundamental Rights of the European Union states:
"No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law."
The Explanatory Notes accompanying the Charter explain that the provision "corresponds to Article 4 of Protocol No. 7 to the ECHR, but its scope is extended to European Union level between the Courts of the member States". Thus the principle applies not only within the jurisdiction of one state but also between the jurisdictions of several Member States.
After the regional integration turns into a global-wide trend, the transnational application of principle ne bis in idem also becomes increasingly important. It could be imagined that this issue will be discussed between R. O. C. and P. R. C. in the near future, and the experience of Europe will be very helpful.
Subjects
ne bis in idem
double jeopardy
regional integration
European arrest warrant
jurisdiction
SDGs
Type
thesis
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