(sometimes rendered or ), which translates literally from Latin as 'not twice in the same [thing]', is a legal doctrine to the effect that no legal action can be instituted twice for the same cause of action. It is a legal concept originating in Roman civil law, but it is essentially the equivalent of the double jeopardy doctrine found in common law jurisdictions, and similar peremptory plea (, 'previously acquitted/convicted') in some modern civil law countries.
The International Covenant on Civil and Political Rights guarantees the right to be free from double jeopardy; however, it does not apply to prosecutions by two different sovereigns (unless the relevant extradition treaty or other agreement between the countries expresses a prohibition). The Rome Statute of the International Criminal Court employs a modified form of .
Rome Statute and UN tribunals
The Rome Statute establishing the International Criminal Court (ICC) states that the principle has a peculiar meaning, especially in comparison to European supranational law. The ICC jurisdiction is complementary to national law, and Article 20 of the Rome Statute specifies that even if the principle remains in general terms, it cannot be taken in consideration if there is unwillingness or incapability of the existence of the supranational court's jurisdiction.
Article 10 of the ICTY Statute and Article 9 of the ICTR Statute both state that the principle can be enforced mainly to clarify that the ad hoc tribunal's sentences are "stronger" than the ones in domestic courts.
In other words, national courts cannot proceed against the responsible parties of crimes within the tribunal's jurisdiction if the international tribunal has already pronounced sentence for the same crimes. However, the ICTY and the ICTR can judge alleged criminals already sentenced by national courts if both of the following occur: the sentence defined the crimes as "ordinary". the judiciary of the state is not considered impartial or the domestic trial is considered to be a pretense to protect the accused from the legal action of international justice or is considered to be unfair on some fundamental legal basis.
European 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 civil servant. Since the disciplinary proceedings were treated as a separate matter from his criminal penalties, non bis in idem was not applicable in Kremzow’s case.
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 [GC] App 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.