The Application of the Ne Bis In Idem Principle in the Area of Implementation of Third Pillar Instruments

14-02-2006

The ne bis in idem or ‘double jeopardy’ principle is at the heart of current EU debates concerning the phenomenon of multiple prosecutions for transnational crime. Individuals and companies are increasingly moving across EU borders not only for lawful but also unlawful purposes. Ne bis in idem, a well-established principle within national criminal justice systems, now also operates in this context to prevent persons being tried for the same offence in more than one jurisdiction. Ne bis in idem was first enshrined as a ‘transnational human right’ in the Schengen Convention of 1990; it has since been confirmed by the European Court of Justice (ECJ) as part of EU law. The note reviews ECJ case law and analyses the extent of legal protection afforded by EU law. It also discusses the operation of ne bis in idem under European Arrest Warrant proceedings. The Commission’s recent Green Paper [COM (2005) 696 final] makes suggestions how to allocate jurisdiction in cases of conflict, proposing a mechanism which should reduce the exposure of persons to multiple prosecutions. Eurojust is already playing an important role in mediating between Member States who share jurisdiction; the Commission favours an expansion of its role. The approximation of ne bis in idem rules suffered a false start under the last Greek EU Presidency; the Commission is now also seeking views on whether these attempts should be revived. The note favours leaving the elaboration of ne bis in idem in its cross-border manifestation to the ECJ.

The ne bis in idem or ‘double jeopardy’ principle is at the heart of current EU debates concerning the phenomenon of multiple prosecutions for transnational crime. Individuals and companies are increasingly moving across EU borders not only for lawful but also unlawful purposes. Ne bis in idem, a well-established principle within national criminal justice systems, now also operates in this context to prevent persons being tried for the same offence in more than one jurisdiction. Ne bis in idem was first enshrined as a ‘transnational human right’ in the Schengen Convention of 1990; it has since been confirmed by the European Court of Justice (ECJ) as part of EU law. The note reviews ECJ case law and analyses the extent of legal protection afforded by EU law. It also discusses the operation of ne bis in idem under European Arrest Warrant proceedings. The Commission’s recent Green Paper [COM (2005) 696 final] makes suggestions how to allocate jurisdiction in cases of conflict, proposing a mechanism which should reduce the exposure of persons to multiple prosecutions. Eurojust is already playing an important role in mediating between Member States who share jurisdiction; the Commission favours an expansion of its role. The approximation of ne bis in idem rules suffered a false start under the last Greek EU Presidency; the Commission is now also seeking views on whether these attempts should be revived. The note favours leaving the elaboration of ne bis in idem in its cross-border manifestation to the ECJ.