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1Concurrence between penal jurisdictions, traditionally treated as a purely domestic question, is increasingly also a transnational problem, due not only to the intensification of citizens’mobility or to the emergence of new international penal institutions, but also to the progressive extension of national penal jurisdictions to conduct committed abroad, directly or by virtue of the consideration as independent offences of the different parts of a global behavior.

2Rules to solve the problems of internal concurrence are clearly established in the domestic field : the “Roman law maxim nemo bis in idem debet vexari” [1] takes place among them as a way of guaranteeing citizens’ juridical security that forbids a double process and a double punishment to the same person, by the same fact and with an identical basis. However, the application of this principle among different legal systems has always been controversial because, due to state sovereignty, the conduct that affected several states could always be considered as an independent offence in each state. [2] But, as Resolution section IV B. 4, adopted by the XVI International Congress of Penal Law (Budapest, 1999) stated, at the international or transnational level, the principle of ne bis in idem should also “be regarded as a human right,” incorporated into international and regional human rights conventions [3]; in fact, the ne bis in idem principle’s application to international and transnational jurisdictional conflicts is frequently problematic, and international regulations should assure, “at the very least,” that “a penalty which has been enforced abroad and which relates to the same conduct or the same offence that is the subject of the second prosecution... be taken into account in the sentencing whenever a new penalty is imposed.” [4]

3The question of Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem” will be focused on by the Fourth Section of the XVII International Congress of Penal Law in September 2004. The Preparatorium Colloquium of the Fourth Section was held in Berlin in June 2003, organized by the German Group of the AIDP under the Chair of Prof. Dr. Dr.h.c.mult. Albin Eser. For preparation of the discussion, 18 national reports, representing different parts of the world, were submitted : Algeria, Austria, Belgium, Brazil, People’s Republic of China, Finland, France, Germany, Greece, Guinea, Indonesia, Italy, Japan, The Netherlands, Poland, Russia, Slovenia, Spain, and Turkey. Two additional reports have approached the question from a “global” perspective and from the “European” one. As General Reporter, I would like to thank all the reporters’ contributions and beg them pardon for any neglect or mayhem. Due to the very nature of the General Report, many interesting issues relating to particular systems could not be developed here and should be consulted directly in order to get a more detailed and accurate treatment.

4x x x x x x

5There are three main levels of concurrence from a transnational and international penal perspective :

  1. the “horizontal (trans)national concurrence”: cases of concurrence of national juridictions;
  2. the “vertical concurrence”: concurrence between national jurisdictions and international institutions competent to prosecute; and
  3. the cases of concurrence between international jurisdictions : “horizontal inter(supra)national concurrence,” due to the existence of ad hoc international criminal courts (ICTY and ICTR) and the emergence of the International Criminal Court (ICC).

6However, the way in which the ne bis in idem principle is understood within domestic (national) penal law has a very deep influence on the recognition and application of this principle at a transnational level. Thus, although the central focus of the IV Section is related to the transnational and international concurrence, the national reporters were also asked to present the main features of their domestic regulation of the ne bis in idem principle.

I. Ne bis in idem at the domestic (national) level

7These are, in a very succinct manner, the principal features of domestic regulations relating to ne bis in idem effects at the national level.

81. All the national reports consider the ne bis in idem principle as a principle that is recognized at the domestic level, which is characterized as ne bis in idem (Austria, Belgium, Brazil, Indonesia, the Netherlands, Poland, Russia, Spain), prohibition of double jeopardy (Austria, Japan), prohibition of double punishment (Austria), negative authority of res judicata (Algeria, Finland, France, Greece, Guinea, Italy, Poland, Romania). Nevertheless, as the German Reporter points out, ne bis in idem and prohibition of double punishment/prosecution are terms “interchangeable in practice.” [5]

9Most frequent legal basis for the domestic recognition of the principle is simple statutory law : i.e., the Penal Code (Brazil, Indonesia, the Netherlands, Russian Federation, Slovenia), the Code of Penal Procedure (Algeria, Austria, Belgium, France, Germany, Greece, Guinea, Hungary, Indonesia, Italy, People’s Republic of China, Poland, Romania, Spain, Turkey), and/or other legal texts (Brazil, Guinea, Spain). On the constitutional level, Article 39 of the Japanese Constitution clearly establishes that no person “shall be placed in double jeopardy” and, according to the general interpretation, this includes double jeopardy both in procedural law and in substantive law. Article 103 (3) of the German Constitution, Article 50 (1) of the Constitution of the Russian Federation and Articles 28 and 31 of the Slovene Constitution forbid a double punishment and/or a new prosecution. In Spain, although the 1978 Constitution does not explicitly proclaim the principle ne bis in idem, the Constitutional Tribunal has (since 1981) declared that it is a direct consequence of the legality principle of Criminal Law (Article 25). [6]

10Many reports find the principle recognized in international conventions applicable to their countries, like Article 14 (7) of the International Covenant on Civil and Political Rights. [7] This one, focused on penal maters (and thus not applicable to administrative procedure) is “rather wide” [8] and does not require a previous enforcement of the sentence finally pronounced on the offence (i.e., not on the conduct or on the fact) in “accordance with the law and penal procedure of each country”.

11At the regional level, Article 8 (4) of the American Convention of Human Rights (1969) and Article 4 (I) of the Seventh Protocol to the European Convention on Human Rights merit mention. By means of ratification, Article 4 (1) has attained the same rank as the Austrian Constitution. This is also the case with the international treaties on human rights in Brazil. In other countries (e.g., France, Greece, Guinea–under condition of reciprocity) ratified international instruments officially published are ranked between the Constitution and the Statutes.

12Also in those countries where ne bis in idem is not clearly established as a fundamental principle by statutory or constitutional law (Brazil, People’s Republic of China), it is considered by the legal theory as a fundamental principle of substantive and procedural criminal law and followed by case law.

132. The consequences of ne bis in idem are normally of two kinds :

  • On the procedural side, the ne bis in idem principle blocks a new prosecution.
  • On the substantive side, the prohibition is not to be punished twice

14In Spain (see also the Algerian and Brazilian Reports), a further consequence of the ne bis in idem principle is the supremacy of the penal order over the administrative sanctioning order; this leads to a preference of the penal sanction, if the incriminating facts are also susceptible to an administrative sanction and to the full subjection of the sanctioning administration to the results of the evidence obtained in the penal process.

153. National reports find many rationale for the ne bis in idem principle : individual freedom, protection of human rights, protection of the individual from State abuses or from the burden of being prosecuted perhaps ad infinitum for the same offence, justice, proportionality, rule of law, legal certitude, juridical security, due process, the respect for judicial decisions rendered in the past ( res judicata), procedural efficiency, social (or public) peace and order, and not casting an impediment to rehabilitation.

16Although each system develops its own rationale, justice, legal certainty, respect for previous judicial decisions, and rule of law can be considered the decisive ones.

174. Ne bis in idem guarantees apply to a (same) person that risks to be prosecuted or punished again for the same fact ( idem ).

184.1. In those systems where a criminal prosecution of a legal entity is possible, generally, prosecution both of individuals and the legal entities for the same fact is not deemed as an infraction of ne bis in idem, although in some “exceptional circumstances” it could “violate the principle of an equitable appraisal of interests.” [9] On the other hand, no violation of ne bis in idem occurs if, after having sentenced one person, a new prosecution is opened against another person for the same act. However, a previous decision declaring the extinction of the penal action due to the inexistence of the constituting acts or by other objective reasons can be generally extended to other participants in the offence if it works in their favor.

194.2. With regard to the meaning of idem, most reports consider determinative the actual, historical event (Austria, Brazil, Finland, France, Germany, Hungary, Italy, Japan, Poland, Romania, Spain, Turkey), [10] already part of previous criminal proceedings.

20Others, instead, put the focus on the identifiable criminal offence or offences. In the People’s Republic of China, “the same matter,” i.e., the same fact relating to the same person, can include facts (like a kind of behavior) that do not constitute a crime.

214.3. In the Netherlands, where, in cases of out-of-court-settlement, legal qualification is the only basis, a middle-of-the-road approach is followed, [11] combining both the historical facts with the legal qualification of the crime. Thus, a third identity requirement is introduced-the identity of legal fundament (also needed in Spain)-and a new prosecution on the same historical facts-only possible, according to many systems, if multiple charges take place at the same time ( ideal concurrence of infractions) [12]- can be then admitted if based on criminal provisions that protect “entirely different values,” a principle not easy to apply. [13] In Belgium, facts are only relevant in domestic cases, but, concerning foreign judgments, offences are decisive. In France, the Penal Procedural Code refers now clearly to the identity of the material facts; nevertheless, several judicial decisions can be found admitting new prosecutions, due to the appearance of new elements after the first conviction. In Algeria, where the Penal Process Code has followed closely the French evolution, case law applies broadly the new principle and impedes any new prosecution based on the same facts by the correctional and police tribunals.

224.4. As to the character of the decisions that may bar a new penal proceeding, as a general rule, decisions that qualify for domestic ne bis in idem effect are those adopted by criminal courts. [14] According to some national reports (Algeria, Brazil, France) ne bis in idem applies, as a principle, inside each sanctioning order, and criminal judge’s decisions do not impede civil or administrative sanctioning procedures, which must only respect the conclusions on the evidence of facts achieved in the penal process. Nevertheless, in some countries the ne bis in idem effect on a criminal court’s decision can go beyond the strict criminal order, and a previous criminal court’s decision on the same conduct impedes administrative proceedings, except for those examples of a single act constituting various infractions after the different sanctioning orders (see the decision of the European Court of Human Rights, case Oliveira against Switzerland). [15] Asimilar solution can be found in Indonesia (where administrative criminal proceedings also qualify for ne bis in idem ) and in Spain, particularly concerning concurrence between different sanctioning orders.

23Previous disciplinary, administrative, or civil convictions usually have no ne bis in idem effect in Criminal Law; nevertheless, at the regional level, the adoption of an autonomous interpretation of the concept of criminal charge by the European Court of Human Rights [16] has influenced some domestic orders to oblige the prosecuting authorities to choose between criminal and administrative (or disciplinary) proceedings in cases where the same conduct can be sanctioned in both ways. [17] The nature of the deciding penal court sometimes has an influence on the effects of the ne bis in idem principle; so, in Algeria, criminal courts’decisions produce an absolute ne bis in idem effect, but correctional and police courts’decisions do not impede new prosecutions if there is a difference in the mens rea or in the protected values.

244.5. In order to bar a new proceeding, generally, the phase reached by the first proceeding must be a definitive trial. Thus, provisional decisions in penal procedures or in the pre-trial stage and those not giving a definitive answer to the criminal charge [18] do not have a ne bis in idem effect in the Criminal Law field. [19] Only decisions adopted as a definitive termination of proceedings or a final answer (usually, conviction or acquittal) on the merits of the case (eventually prosecuted through several consecutive instances if all legal remedies are to be exhausted) generate a ne bis in idem effect.

25On the other hand, due to the fact that their effect on the criminal charge is the same as a judgment, penal orders ( Strafbefehl), [20] transactions, and conditional dismissals adopted by the public prosecutor or other kind of dismissals ordered by the court or the prosecution (e.g., in case of petty offenses) are deemed, in several countries, and by important authors, as also having a ne bis in idem effect, although they are not judicial decisions; this position has found a certain ratification through the Decision of the European Tribunal of Justice of 11 February 2003. 4.6. The final and irrevocable character of the decision (i.e., non susceptibility of ordinary revision) is, then, the departure point of the legal effect of res judicata that -as underlined by the Algerian, French, German, Greek, Guinean, and Romanian Reports- constitutes a public order exception, susceptible of official appreciation by the judge at any stage of the penal process.

265. The main legal consequence of the application of ne bis in idem in most systems is, therefore, according to the principle of recognition, the prohibition (and inadmissibility) of subsequent prosecutions on the same facts. However, in the Netherlands, case law extends the ne bis in idem effect to the offences (not formally indicted, but) included in the so called “ad informandum ” indictment, if the accused admitted them and the court took them into account in sentencing.

27Also, preliminary investigations are commonly blocked by ne bis in idem. Nevertheless, an investigation as such is not regarded in the Netherlands as a prosecution that involves ne bis in idem, and, as the Austrian Reporter notes, [21] the need of a proceeding in order to decide on the re-opening of a case can never be excluded.

286. In those exceptional cases where the opening of a new prosecution is not blocked by the previous final decision, ne bis in idem works to impede a double punishment. In this way, national reports give like examples of the application of the principle of deduction. In Belgium, in cases with a connection between the new offence and the facts for which the person was already convicted ( infraction collective) a new conviction is possible, but the court must take into account the punishment already imposed by the first sentence. Another example of the principle of deduction, this time between the penal system and the penal administrative one, can be found in the Article 28 of Administrative Penalty rules of the People´s Republic of China : an administrative detention (or a fine) imposed for the same fact in the administrative order, must be thus deducted from the criminal detention or prison term (or fine) imposed by the criminal sentence.

297. A further question is that of exceptions from ne bis in idem. Many national reports comment on the legal possibilities of the extraordinary re-opening of a case (often only in favor of the convicted person) [22] due to exceptional circumstances and as “an additional tool to maintain fairness of judgments” and an accepted way to correct “mistakes.” [23] Other institutions-like the recours dans l’intérêt de la loi (Algeria), the repetition of criminal proceedings (Greece), the pourvoi en cassation (Polish Report), the annulations (Spanish Report), or the effects of a Constitutional Court’s Decision on the unconstitutionality of the Act that established the offence (e.g., in Belgium)- are not, in a strict sense, an exception to the ne bis in idem principle’s effect.

30Real exceptions to the application of ne bis in idem can be found in Algeria in case of judgments in absentia and par defaut, in Austria, with the “partial finality” (also known, e.g., in Germany and Hungary) and the “unilateral finality,” in the People’s Republic of China, where a new prosecution of the accused after acquittal due to insufficient evidence is admitted in some cases, and in the Netherlands and Slovenia, [24] in relation to confiscation and the proceeds of crime.

318. According to the 1996 International Covenant a final violation of the prohibition of ne bis in idem at the domestic level can justify a complaint before the Human Rights Committee.

II. Ne bis in idem in “horizontal (trans)national concurrence”

32Possibilities of horizontal (trans)national concurrence increase as far as new opportunities of application of the national criminal law to offences committed abroad are opened, a tendency perceived by some national reports (Austria, Spain) that recognizes the broad field of extraterritorial application of their national criminal law. Only the Dutch Reporters underline the reluctance in the Netherlands “to establish and exercise extraterritorial jurisdiction.” [25] 1. Although territoriality continues to be the main basis for the application of criminal law, extension of national jurisdiction to extraterritorial cases is on the increase according to the national reports.

331.1. Different methods are used by states in order to extend their penal jurisdiction. So, the traditional extension of the territoriality principle by means of the flag principle now includes further possibilities through the admission of new criteria on the location of crimes : following a trend progressively extended to all offences, even in those countries that initially opened it only for special penal legislation (e.g., in the Netherlands, for economic or drug offences), penal infractions are considered perpetrated in every place where any of the “constituting elements” was physically performed (France, Guinea): not only at all the places where (wholly or partially) (Italy) the action or omission was committed, but-according to the principle of “ubiquity”- equally where the effects (results) of those acts took place (Germany, Italy).

341.2. Most systems have also traditionally extended their criminal jurisdiction over those offences committed abroad by their own citizens, [26] according to the socalled active personality principle. The active personality principle has been broadened in recent times by eliminating, in certain cases, the frequently required double criminality precondition [27] or by introducing the domicile principle, as proposed by EU decisions in connection with sexual abuse of minors.

351.3. Extension of jurisdiction is also achieved by the admission of the protective principle, which allows States to prosecute a list of offences committed abroad (by anyone, national or foreigner) affecting the State’s interests; the passive personality principle -not everywhere recognized (see, e.g., Spain)- is sometimes treated as a further modality of the protective principle.

361.4. Broadening the field of universality principle for the prosecution of certain offences is the result of the principle aut dedere aut judicare, which is included in several recent international conventions on weapons of mass destruction, terrorism, organized crime, drug trafficking, money laundering, etc. In the Netherlands - except for piracy, counterfeiting currency, and the core crimes of the jurisdiction of ICC- application of the universality principle is somehow restricted by the way of considering it “only a secondary option” or “only possible if a treaty not only allows but enjoins state parties to establish jurisdiction.” [28] 1.5. Nevertheless, through Article 4a of the Dutch Penal Code ( representation principle), the Netherlands can receive criminal jurisdiction from another state on a treaty basis. The representation principle is also applied in Austria and Germany if a foreign perpetrator can not be extradited because of the nature of the offence, and, in Poland, if the act committed by the foreign perpetrator-who is not going to be extradited- is punished by at least by two years’imprisonment.

372. Recognition of the ne bis in idem principle’s transnational blocking effect at the State level is not very common [29] and presents special features.

38Transnational ne bis in idem is generally reserved for those offences committed abroad and tried by a foreign jurisdiction, in France, and in those systems influenced by French law (Algeria, Guinea), except if they are against the Nation’s higher interests. This is also the case in Italy and Slovenia. In Slovenia, the primacy of the territorial principle is not obligatory, but facultative, and-as it happens in Italy- prosecution against an offender already prosecuted or being prosecuted abroad needs the Minister of Justice’s permission; an application of the deduction principle to the new sentence is also required. Primacy of the protective principle is, on the contrary, “obligatory,” in Slovenia, but the deduction principle applies equally. [30]

39So, although ne bis in idem should not “depend upon where the act was committed, e.g., at home or abroad” [31], it does not really have a transnational role regardng offences committed in the national territory-an offence being considered committed there if one of the constituting elements took place under the application of the territorial principle- or offences that fall in the protective principle’s field. [32] This restriction of ne bis in idem -that in Romania affects all the offences to which Romanian penal law is mainly applicable [33]- shows a certain lack of confidence in the foreign jurisdiction, is justified in terms of penal sovereignty and by practical reasons, [34] and is somehow tempered by the application of the deduction principle, at least in relation to the prison sentences executed abroad. However, by means of international conventions, transnational ne bis in idem finds an extension in some countries. On the other hand, transnational ne bis in idem is recognized in France in a much broader way for those offences committed on board of French ships and to the infractions of the navy police in French territorial water; in Algeria, foreign courts’ decisions on crimes committed by a foreigner in Algeria benefit also from the transnational ne bis in idem effect, a possibility that is considered “an application of universality principle.” [35]

402.1. Here, again, the legal source for the recognition of foreign sentences’res judicata principle is usually the Penal Code (Austria, Finland, Greece, the Netherlands, the People’s Republic of China, Turkey), the Penal Procedure Code (Algeria, France, Germany, Guinea), or other acts (especially those on extradition or governing the justice system as a whole, e.g., in Spain). In the absence of statutory provisions, recognition of transnational ne bis in idem is assured by case law. The Japanese Supreme Court has excluded the application of double jeopardy prohibition to foreign sentences, and no report finds an explicit constitutional provision on transnational ne bis in idem.

412.2. Concerning international (and regional) agreements, the applicability of universal multilateral conventions on human rights to foreign res judicata is discussed.

42Many national reports refer in this sense to the ne bis in idem provisions of Article 14 (7) of the 1966 International Covenant on Civil and Political Rights and Article 4 (I) of the 1984 Seventh Protocol to the European Convention. According to the “Global” Report, dispute is strong among eminent authors (and even contradictory court decisions can be detected in the same country) [36] relating to the international validity of the 1966 International Covenant provision, not applicable in the transnational field after the Human Rights Committee. Similarly, as the “European” Report underlines, although ne bis in idem, as such, was not included in the 1950 Rome Convention, the Commission of Human Rights soon found a support against double jeopardy in Article 6, on the fair trial guarantee. Nowadays, Article 4 (I) of the 1984 European Seventh Protocol and Article 8 (4) of the American Convention of Human Rights are clearly focused on ne bis in idem, considered as a fundamental right-which can not be derogated (not even in case of war or other public emergency)- but only at the domestic level. [37]

43Other international Conventions include provisions on transnational ne bis in idem : Article 36 (2) (4) of the 1961 UNO Convention on Drugs is considered in France as a basis to impede the domestic prosecution of drug trafficking committed in France, but already judged by a foreign court.

442.3. Several instruments related to ne bis in idem can be found in America and Europe, [38] even if sometimes (e.g., in the Netherlands) they offer a poorer transnational ne bis in idem guarantee than domestic regulations.

452.3.1. In America : the 1994 Inter-American Convention on Mutual Assistance in Criminal Matters and the Inter-American Convention on Execution of Criminal Sentences Abroad.

462.3.2. In Europe-where important developments towards the establishment of “a European judicial area” are taking place [39]- several conventions on extradition and assistance in criminal matters [40] contain a generous regulation only allowing a second prosecution by states founded in the civil servants’ participation in the offence or on the basis of the territorial or protective principle.

47For example, according to Article 53 (1) of the 1970 Convention and Article 35 of the 1972 Convention, a person shall neither be prosecuted nor sentenced nor subjected to enforcement of a sanction in another State if, by a final and enforceable foreign criminal judgment the person was acquitted or convicted without a sanction being imposed; if a conviction and sanction took place, the same guarantee applies if the sentence was fully enforced or is being enforced, or the individual was pardoned or amnestied (at least for the part not yet enforced) or the sentence’s enforcement is not possible any more due to lapse of time (prescription).

48Nevertheless, it must be recognized that “the Europe-wide application of the ne bis in idem principle is not yet a reality” [41]; furthermore, as it happens in many other fields, due to the different European frameworks-Council of Europe, European Union, Schengen Area- European evolution is not a uniform one.

49Articles 54-58 of the 1990 Convention applying the Schengen Agreement [42] are, however, the most developed (and, due to the ratifying countries, the most widespread) “European” discipline in this field. According to Article 54, applicable both to convictions and acquittals :

50

A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.

51However, Article 55 of 1990 Convention “waters down the general prohibition” [43] and allows States Members to declare that they will exclude a foreign decision’s ne bis in idem effect over a second prosecution on the basis of territoriality (except if the offence was partially committed in that foreign State’s territory) or because it affects the national security (or “other equally essential interests”) or because the offence was committed by a State’s official in violation of the duties of his office. Deduction of the prison term served abroad is, in any case, mandatory.

52Ne bis in idem provisions (out of the Schengen Convention, already integrated in the “acquis communautaire” by a Protocol to the Amsterdam Treaty and to the European Community Treaty) can also be found at the European Union level :

  • 1987 European Convention on Double Jeopardy, “in content and, to a large extent, also in its wording,... identical” [44] to the dispositions of the (more recent) Schengen Convention -“the minimum protection to which individuals involved in international criminal proceedings should, de lege ferenda, be entitled” [45]- and not yet in force, but provisionally applicable by Austria, Belgium, Denmark, France, Germany, Ireland, Italy, the Netherlands, and Portugal, and not (May 2003) by Finland, Greece, Iceland, Luxemburg, Norway, Spain, Sweden, and the United Kingdom [46].
  • Article 7 of the 1995 Convention on the Protection of the European Communities’ Financial Interest-and its First (1996) and Second Protocol (1997), also referred to legal persons (Article 12 (2))-, as well as Article 10 of the 1997 Convention on the Fight Against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union.
  • Article 50 of the 2000 Charter of Fundamental Rights of the European Union (2000/C364/01) [47]; this foresees a ne bis in idem application “both within member states and internationally,” [48] but it still needs a further juridical treatment in order to be effective.
  • Article 3 (2) of the 2002 Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States considers another Member State’s final judgment as a basis for the mandatory non-execution of the warrant against a sentenced person having served it or, if the sentence is being served or can no longer be executed, according to the sentencing State’s law; possibilities of an optional non-execution of the warrant are also foreseen on the basis of a final judgment or on decisions not to prosecute or to halt proceedings.

53Multiple problems arise with all these instruments, due to their diverse ratification status among the European States and to their respective (and random ?) areas of applicability. [49]

54On the other hand, consultation procedures (like in Article 30 of the European Convention on the Transfer of Criminal Proceedings) and even a central body should be envisaged at the European Union level in order to adopt “a more positive approach” in avoiding multiple process by “finding the best place of prosecution.” [50] 2.4. Also bilateral agreements sometimes include ne bis in idem provisions, particularly those on extradition and mutual legal assistance. It should be underlined, in any case, that treaties and agreements integrate the internal order as soon as they are published and enter in force. Conflicts regarding their respective provisions should be solved according to the explicit criteria of priority or, in the absence of specific rules, in the light of Article 30 of 1969 Vienna Convention on the Law of Treaties.

553. One of the prerequisites of the horizontal application of ne bis in idem is, as generally, the presence of the same person accused of an idem.

56The requisite of the same person benefits both to physical persons and to the legal entities in those countries that admit a penal responsibility of legal entities. Also, where penal responsibility of legal entities is excluded, there is no identity regarding the individual (manager or representative of a legal person) if the foreign criminal decision did not personally affect him and was exclusively directed against the legal entity (Austria, Spain).

574. Another main prerequisite is that of an idem. Many national reports insist on the special difficulties that the determination of what is an idem presents on the horizontal transnational level, due to the differences of the national penal provisions and the rules on concurrence of offences.

584.1. Most systems are inspired by the criteria of identity of the historical event ( cf. supra I. 4.2). In these countries, differences in legal qualification are not relevant. So, in Austria–where, in order to declare the identity of facts, the mandatory or discretionary character of the prosecution has no influence- differences in the areas of intent/recklessness/negligence have no incidence in this respect. Austrian case law declares also an identity of facts in cases of ideal concurrence of offences, enhanced elements of the offence ( verstärkte Tatbildmässigkeit) and of the continuing offence, and does not make any derogation to the ne bis in idem principle if specific qualifying or mitigating circumstances were not taken into account by the foreign decision. In Brazil, if there is only a partial identity, prosecution can be applied to those facts not being considered by the foreign court decision to constitute an autonomous offence according to Brazilian law.

594.2. On the other hand, if there is a conflict on the legal qualification between national and foreign law–e.g., in criminal organizations or aircraft hijacking- some national reports (Algeria, Greece) declare the preference for the national one.

604.3. According to the middle of the road approach followed in some countries (e.g., in the Netherlands), both the fact and its legal relevance must be taken into account; thus, the ne bis in idem principle does not impede a double prosecution if the various applicable provisions diverge in purpose and scope. Coincidence between foreign criminal provisions is not very frequent, so equivalence (and not coincidence) should be determinative; in order to establish the equivalence, the weight of the factual circumstances of the case should be emphasized (Spain). Furthermore, as stated by the Spanish Supreme Court Decision of 3 February 2000, sufficiently founded doubts should not work against the defendant; therefore, only a substantial divergence in purpose and scope of the penal provisions should allow a new prosecution. It is to applaud, in this way, the Dutch Supreme Court Decision–placed directly against the line followed in a similar case by the French Cour de Cassation [51] - not to admit a second prosecution in the Netherlands (because of export of drugs), since the conduct had been already prosecuted (and convicted) in Belgium as illegal import. [52]

614.4. As stated previously, at the European level, according to article 54 of the 1990 Convention applying the Schengen Agreement, States Members can declare that they will exclude an identity of the fact if the offence falls (entirely or partly) under the application of the territoriality principle, except if the offence was partially committed in the territory of the State that already adopted the first final penal decision or if the former State demanded prosecution to (or accepted the extradition demand of) the latter one. A reservation is also possible to the European instruments (Article 55 of the 1990 Convention and Article 2 (I) (c) of the 1987 Convention) relating to offences against national security (or other equally essential interests) and in order to prosecute those acts of public officials committed abroad and already prosecuted in the foreign country, if the official condition was not taken into account. Article 3 and Article 4 of the 1987 Convention foresee, in any case, the application of the deduction principle, in particular, in cases of prison sentences enforced abroad, and exchange of information in order to prevent ne bis in idem risks.

625. The application of ne bis in idem at the horizontal transnational level equally requires a final decision, in principle, by a competent foreign criminal court. [53] Dominant in the French literature (and in the legislation of Algeria) is the position that examines competence according to the domestic rules, and not to foreign rules. [54] 5.1. Disciplinary and civil decisions do not impede a criminal prosecution on the same facts. The so called “una via-principle” adopted by some countries could lead to a different solution in fiscal or custom cases, susceptible of an administrative fine and a penal sanction (also a fine). However, as the Dutch Reporters recognize, “the divergent purpose of tax law and criminal law enforcement” may not help to the success of the non-accumulation solution. [55]

635.2. Pending foreign criminal proceedings do not have a ne bis in idem effect and do not, as a rule, block further prosecutions, except in those cases of bilateral agreements that promote the application of transfer of proceedings or other systems of mutual cooperation in criminal matters. Afinal decision is, thus, ordinarily necessary. As stated by the Explanatory Report on the Seventh Protocol ECHR, this means an “irrevocable” decision that only takes place if “no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them.” [56] Instructor and public prosecutor’s decisions putting an end to the proceedings (even by fulfillment of certain duties or obligations) have been traditionally excluded from the ne bis in idem effect by the dominant interpretation (Austria, France), [57] as well as transactions in tax, customs or road traffic offences and transnational crimes (Algeria). This line has been broken by the Decision of the Court of Justice adopted on 11 February 2003 on the transnational application of ne bis in idem provisions (Article 54 of the 1990 Convention) in the context of the “area of freedom, justice and security” introduced by the Amsterdam Treaty. In this decision –apparently against the will of the drafters of the Convention [58]- the Court assures the ne bis in idem effect of out-of-court-settlements concluded in another State Member’s jurisdiction.

645.3. Furthermore, different national reports underline that only final decisions on the merits of the case (and not because of formal reasons) are taken in account in horizontal transnational ne bis in idem.

656. Those countries that do not recognize a ne bis in idem blocking effect to foreign decisions (Japan, People’s Republic of China, Poland) admit a double prosecution and punishment, a consequence that is not considered “necessarily desirable as a criminal law policy.” [59] Therefore, in line with the principle of accounting or deduction, mitigation or remission of the sentence is statutorily obliged (Germany; in Poland : in cases of deprivation of liberty) or admitted (Japan, People’s Republic of China) in order to give a certain effect to the foreign sentence already enforced or executed in a complete or partial way.

66This is also the common solution for those cases tried abroad that do not fall under the full recognition of the ne bis in idem principle.

676.1. Nevertheless, the main effect of recognized transnational ne bis in idem is, according to the majority of the reports, the non-prosecution (sometimes only discretionary, as in Germany) of those acts already judged abroad ( principle of recognition).

68This principle serves as a general solution if the perpetrator was acquitted (or, even, in some countries, if proceedings were discontinued by a final decision or if the sentence imposed was totally or partly suspended). Nevertheless, in Austria, this generally recognized (by the Penal Code) effect of ne bis in idem does not apply to the 1979 Extradition and Mutual Legal Assistance Act, where, according to Section 74 (4) “an acquittal or a discontinuation of the foreign proceedings does not hinder a continuation of the national proceedings.” [60]

69Foreign acquittal or dismissal of the criminal charges will absolutely bar, therefore, all new prosecution; in some systems, even if the reasons are formal ones (except lack of competence, Austria) or one would expect that new and more consistent evidence could be easily obtained at home (the Netherlands).

70Guinea explicitly requires for the foreign judgment to be the result of a regular and human rights’ respectful procedure. For other national reports (Austria, the Netherlands), the Court is not allowed to examine the foreign decision in order to know if the same would have been her probable decision in an analogous case. This approach–that could be deemed “too benevolent” [61]- has raised strong criticism, particularly in connection with eventual decisions adopted by fraud or in sham trials [62]; nevertheless, as indicated by the Austrian Reporter, “a judgment on the independence and impartiality of foreign courts,” natural in a vertical relation (so by a supranational Court), “might create difficulties with regard to the decision of ordinary courts of other States.” [63] 6.2. In cases of conviction and punishment, the full enforcement of the foreign sentence is very often required (in Brazil, only a definitive decision is needed; in Germany, a sentence “currently being served” is sufficient). In cases of only partial execution, the principle of deduction–although not always officially recognized (e.g., in the Netherlands)- enters in force, allowing a further prosecution and a new punishment, except in cases of mutual assistance designed to give an execution to the foreign decision. In Austria, deduction is due in cases of imprisonment, but the public prosecutor may not prosecute an offence committed abroad if a foreign decision exists and “the institution of national proceedings does not seem necessary.” [64] Fines are considered enforced if already paid or are “being paid in installments” (Austria). In Greece, the “recognition of foreign criminal judgments” does not impede the imposition of accessory penalties or security measures by the Greek court if Greek penal law foresees them.

71Full execution is not required either if punishment did not follow the declaration of guilt (the Netherlands) or if the sentence was remitted, or enforcement is not possible anymore. In France and French-influenced systems, there is a discussion on the legal rules-foreign or national- that have to be taken into account in order to decide. The “law of the State where the offence was committed” is followed in Austria; in Brazil and in Turkey, in cases of conflict of law, the most favorable regulation has the preference.

72Pardon and amnesty are excluded in France and in those systems influenced by French law (however, pardon is taken into account in Algeria) in order to avoid the effect of possible mercy measures, given by political reasons and to impede prosecutions in France.

73The probation period in conditional sentences (or release) is an enforcement period that ends with expiration; in cases of breaches leading to revocation (or in case of evasion), if the foreign sentence cannot be enforced abroad, the home jurisdiction will revive (Austria, France, Guinea).

74Regarding the indirect or secondary effects of foreign judgments little, if any, attention is paid by legislation. In Brazil, foreign decision must be promulgated by the Supreme Court in order to enforce civil effects or to impose a measure of security.

756.3. In systems inspired by the principle of recognition of ne bis in idem –in the process law field- leads to the prohibition either of new adjudication (Austria) or of any prosecution on the same facts (Brazil, European instruments, Guinea the Netherlands..; however, as already said, new proceedings may be necessary in order to decide the identity of the facts.

766.4. Transnational ne bis in idem must be examined ex officio according to some national reports (Austria, Greece, Hungary, the Netherlands). In other countries (France, Guinea, Spain) it is not considered a public order exception and must be alleged by the defendant. At the European level, Article 57 of the 1990 Convention on the application of Schengen Agreement gives a certain initiative to the judge in order to examine if there is a previous decision with a transnational ne bis in idem effect.

776.5. In any case, differences between civil law and common-law systems are also important regarding the concept of ne bis in idem and double jeopardy. Because of these differences, juridical effects of foreign decisions should be regarded in light of the foreign legislation. This question is, however, discussed in some countries (e.g., France, Guinea) where-even if only the other approach avoids frequent mistakes due to the use of terms “corresponding to different realities” [65]-case law has refused to recognize a transnational ne bis in idem effect to decisions adopted by a court internationally not competent according to the home law, or in cases of sentences in absentia or par défaut. On the other hand, recognition of the ne bis in idem effect at the transnational level is a State’s unilateral decision and does not oblige the State whose decision is being recognized to accord the same protection [66].

787. Transnational penal cooperation’s aim is to provide assistance to other States in order to prosecute or to apply foreign penal decisions. Consequently, ne bis in idem often works as a way of refusal of extradition (with a prosecution’s aim) if criminal responsibility is extinct according to the legislation of the requested State (usually an absolute reason to reject the extradition request).

79A final decision on the merits of the case in a third State (eventually, where the offence was committed) is sometimes recognized as a bar to extradition (especially if the sentence was enforced or pardoned), but this is not always the case (e.g, in France). Article 9 (2) of the European Convention on Extradition (as amended by the First Additional Protocol) authorizes extradition in these cases if either the victim had a “public status in the requesting State,” or the offender “had himself a public status in the requesting State,” or the offence “was committed completely or partly in the territory of the requesting State or in a place treated as its territory.” Facultative reasons for rejection are that the proceedings are pending in the requested State or a national Prosecutor’s decision not to institute or to continue with the prosecution, except if the decision’s ground is a lack of jurisdiction; also, the appearance of new evidence or the previously expressed State’s preference for transfer of proceedings to another state, as well as the interest of ascertaining the truth or the usefulness for reasons of fixing the penalty and executing the sentence are, according to some national reports (e.g., Dutch and Austrian), admitted exceptions to refusal of extradition. [67]

80Models developed around extradition apply equally to other modalities of international assistance in penal matters, and especially in connection with the transfer of criminal proceedings or the execution of sentences. International and regional instruments on these mechanisms try to assure the respect of ne bis in idem, even if several exceptions are admitted : namely, in the case of a State’s public servants. Nevertheless, the practice shows how “the application of the principle of ne bis in idem seems to be rather arbitrary,” [68] even in Europe, where several instruments (with different areas of application) [69] have been developed.

818. Many reports find in their national legislation additional regulations on the application of the principle of ne bis in idem. Rules to solve claims of competence in case of concurrent jurisdiction are, however, unusual, and the possibilities of forum shopping by the prosecuting authorities or by the defense are still broad. [70] Article 439 Greek CPP establishes a priority order in cases of concurring extradition requests, taking into account, first, territoriality and, secondly, the active personality principle. If concurrent extradition requests focus on different acts, the seriousness of the offence is the priority criteria, and, in case of equal seriousness, priority is given according to when the request was filed. Nevertheless, more efficient ways to detect “cases pending at the same time in two or more Member States” and to arrive at “consensual solution(s)” are absolutely needed, since “there is to date no institution or mechanism to assign with a binding authority a case to a single State exclusively.” [71]

III. Ne bis in idem in cases of “vertical national-supranational concurrence”

82Until the fourth decade of the 20th Century, only horizontal jurisdictional conflicts could generally take place in transnational criminal matters. This situation changed completely with the establishment of international criminal courts. Thus, the Charter of the International Military Tribunal of 1945-nowadays with “only a historical significance” [72]- included a special provision (Article 11) on vertical ne bis in idem concerning the convictions for participation in the criminal activities of a group or organization.

83A new situation was opened during the nineties with the establishment of the Ad Hoc International Tribunals and, later, of the International Criminal Court. Due to the fact of the progressive extension of national jurisdiction to crimes involving a transnational or international relevance, [73] and being the most serious violations of internationally recognized human rights of the competence of the new international criminal courts, the risk of vertical-i.e., between national and supranational jurisdictions- concurrence appears again (in a much broader sense than in 1945) and, equally, the question of how to assure a full respect of ne bis in idem at this level.

84According to the “Global” Report and to the national ones, the way in which the nature of the international jurisdiction is conceived has a great influence at this respect. It is therefore necessary to distinguish between the ad hoc International Courts and the International Criminal Court.

851. The Primacy of the criminal jurisdiction of the Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) over the national courts is clearly established by Article 9 and Article 8 of their respective Statutes. These international tribunals can require the national courts, at any stage of the procedure, “to defer to the competence of the International Tribunal(s).” Several national reports (Austria, Belgium, France, Germany, Greece, Italy, the Netherlands, Slovenia, Spain) refer to the domestic Acts approved in order to regulate the procedure and the ways of judicial assistance with these tribunals, created by two UN Security Council resolutions : i.e., in texts that, in a certain way, reflect the “opinio juris of most States,” [74] even if they are not submitted to a national ratification.

86These Acts sometimes order the domestic authorities to report to the international tribunals on any process eventually falling in their field of competence (France) or, even, to examine judicially ex officio the competence of the International Tribunal (Austria); more often, States wait for an International Tribunal’s request in order to defer the competence.

87Competence to examine the identity of facts is then put in the hands of a judicial instance (in Belgium : the Supreme Court; in Greece : the Court of Appeal in Athens; in Spain : the Audiencia Nacional) that, except for impossibility, must hear the affected person. Some of these Acts (e.g., in Belgium, in the Netherlands) also authorize the domestic Court to substantiate the International Tribunal’s jurisdiction, although this should be considered an exclusive task of the International Tribunals themselves.

88The consequence of a deferral decision is the suspension of national prosecutions, at least, while proceedings are pending before the International Tribunal.

89Domestic implementation Acts do not always refer to ne bis in idem and, due to their absence of incorporation of international conventional instruments’ object of ratification by the States, this can be a source of problems at the domestic level. [75] Nevertheless, according to their respective Statutes, the downward ne bis in idem effect of an International Tribunal’s final trial is fully recognized, barring all new further measures of prosecution [76]; enforcement is not required.

90Final trial is identified with a final judgment on the merits of the case. In this sense, refusal of the prosecutor to indict, decisions (even of the chamber) [77] refusing to authorize a trial, or putting an end to trial on procedural or formal grounds or interlocutory decisions ( Tadic case) usually constitute no obstacle to a further prosecution at the domestic level. On the other hand, the ICTR, in the Ntuyahaga case, established that acquittal must be identified with the Chamber’s decision finding the evidence “insufficient to sustain a conviction,” after full presentation of available evidence. [78]

91“Idem” is here not the fact (or the course of facts) but those acts constituting “serious violations of international humanitarian law,” whose punishment is the purpose of the Ad Hoc Tribunals; therefore, those acts already tried can be the object of subsequent prosecutions in the domestic order if they also constitute ordinary crimes. [79] The legal consequences of downwards and upwards ne bis in idem being asymmetrical,” [80] a negative res judicata effect is also recognized to a previous trial’s resolution at the national level. Nevertheless, in a way “not necessarily inconsistent with general notions” of ne bis in idem,[81] ICTY and ICTR Statutes (Article 10 (2) and 9 (2), respectively) admit a retrial, this time before the International Ad Hoc Tribunal, only if the conduct was exclusively treated as “an ordinary crime,” the national court did not prosecute diligently, lacked impartiality or independence, [82] or if the court’s intervention was devoted to shield the accused against a declaration of international criminal responsibility.

92In order to block the International Tribunal’s intervention, a national court’s decision must be a final one on the merits of the case. Here again, no enforcement is required and neither a prosecutor’s decision to terminate the proceeding nor any other decision not to proceed (e.g., because of insufficient evidence or because prosecution would not serve the interests of justice), [83] as well as amnesties or State’s measures of mercy, are sufficient.

93If a second trial (at the international level) results in a conviction, the principle of deduction intervenes.

94Ad hoc Tribunals admit multiple charges, [84] as well as concurrent sentencing, if the values attacked diverge and the crimes fulfill the “Blockburger test”: each offence containing an element not required by the other.

95On the other hand, due to limited resources, the international tribunals are obliged to concentrate on some crimes, even leaving aside others “forming part of the same criminal enterprise/continuous conduct committed by the alleged/convicted offender.” [85] The question is, therefore, if these crimes or conducts can be prosecuted later or, as proposed by the German Reporter, decisions of the International Tribunals “must have a baring effect in the broadest possible way.” [86] As a possible legal consequence of a violation of ne bis in idem, in cases of the institution of criminal proceedings for a crime already tried by the already established Ad Hoc International Tribunals, the Rules of Procedure and Evidence-in addition to national remedies and if the Trial Chamber fails to issue an order to discontinue the proceedings- foresee (Article 13) a report by the Tribunal’s President to the Security Council.

962. According to the Rome Statute, ICC jurisdiction is complementary to national one(s). [87] The ICC has no mandatory primacy towards domestic courts, except if the investigating or prosecuting State, having jurisdiction, is “unwilling” or “unable” to carry them out (Article 17). Consistent with the complementarity principle is the recognition of the ne bis in idem principle; first of all, of “a temporal nonbisinidem, ” [88] since, if an investigation by the State is still pending, the ICC Prosecutor will not prosecute.

97As a corollary to the principle of complementarity, [89] the ne bis in idem principle is mainly regulated by Article 20 of the Rome Statute. No specific consequences are foreseen by the Statute in cases of violations of Article 20 : Article 87 (5) (b) only provides for a referral to the State’s Parties’Assembly or to the Security Council in the event of a State’s failure to cooperate with the Court in violation of the Statute.

98Downwards ne bis in idem is foreseen by Article 20 (2). This provision establishes an absolute ne bis in idem downwards effect for ICC acquittal or convictions over the crimes referred to in Article 5 of the Statute : genocide, crimes against humanity, war crimes, and aggression, and towards Party States.

99Ne bis in idem here takes into account the result of the ICC process (acquittal/conviction; not a ruling of inadmissibility) and the “crimes”; so, idem is the same offence in law. An ICC acquittal (or conviction) decision for one of these crimes will then be, according to the Rome Statute, no obstacle if a national jurisdiction wants to prosecute the accused because of other crimes (e.g., multiple murder). Although the inherent limitations of ICC jurisdiction can justify this solution [90], “the situations is very unfair” [91] for the individual and, at least, a reference to the application of the principle of deduction would have been welcomed.

100If downwards ne bis in idem takes into account the same offence in law, upwards ne bis in idem (national court-even from a non-Party State- / towards ICC) is referred to by Article 20 (3) of the Rome Statute as “the same conduct,” i.e., to the historical facts [92] already tried.

101Reference is not any more to acquittal or conviction but to trial, so other decisions can be taken into account in order to constitute what is a “bis. ” However, some points need further clarification : how final the decision must be ? Only court decisions or also the prosecutor’s final decisions ? What are the effects of pleabargaining, out-of-court settlements, diversion, deals with criminals, pardon, parole, conversion of the sentences... ?

102The facts must be proscribed by Article 6 (genocide), by Article 7 (crimes against humanity) and by Article 8 (war crimes). It should be noted that aggression is not focused in this provision on the upward ne bis in idem effect. On the other hand, the lack of independence or impartiality in the national proceedings or a clear purpose [93] in the national court in order to help the accused elude criminal responsibility are reasons that allow the ICC to intervene.

103Contrary to ICTY and ICTR Statutes, no exception is provided in cases of qualification of those acts as “ordinary crimes” by the domestic courts. According to the Belgian Report, [94] the sham trial exception could serve, nevertheless, as a basis for further prosecution by the ICC in these cases. Relating to the upwards ne bis in idem exceptions, references to the mandatory application of the principle of deduction are lacking, [95] as well as those to the eventual effect of national amnesties and/or national reconciliation processes, [96] whose only limit should be a serious violation of fundamental human rights, [97] especially of the victims.

104However, according to Article 53 of the ICC Statute, the Prosecutor can take them into account in order to avoid a prosecution that would not serve the interests of justice.

105In addition to Article 20, Article 17 (inadmissibility) and Articles 13 and 14 (investigation of a situation) of the Rome Statute can also have an influence on those systems that give extended ne bis in idem protection. Here, again, the terminology is not coincidental, since Article 17 refers to the case (historical fact related to certain persons) and Articles 13 and 14 to the situation : i.e., “an unidentified conglomerate of historical facts committed by an unknown number of individuals.” [98] Ratifying States (Austria, France, Germany, the Netherlands) are progressively approving Acts devoted to assure cooperation and judicial assistance. These Acts should include a complete regulation of the ne bis in idem effect, implementing and developing ICC Article 20 even at the transnational horizontal level : The ICC being bound by a (even non-)Party State’s decision why should it not be bound equally by all the other Party States ?

1063. Relating to vertical judicial assistance, ICTY case law insisted on the absence of basis in the Statute for a State’s refusal to comply with the International Tribunal’s request and orders, which have a preference over any other State’s request for extradition of the same individual.

107Nevertheless, Article 89 (2) of the Rome Statute regulates the treatment of a ne bis in idem defense against a surrender request that is not considered formally an extradition. [99] This opens a consultation procedure from the requested State to the Court in order to know if the admissibility of the case has been already declared, the requested State only being allowed (Article 95) to postpone the execution of the surrender (or of the assistance request) until a positive decision has been met; however, in a case in which the ICC authorizes the Prosecutor to continue collecting evidence, a strictu sensu assistance requests’ fulfillment can not be postponed.

1084. The Austrian National Report underlines the effects of the International Courts’ decisions on domestic proceedings, particularly in relation to the proof of the acts established by the convictions and in order to serve as a basis for execution. [100]

IV. Ne bis in idem in “horizontal inter(supra)national concurrence”

1091. Relating to the decisions of the International Tribunals amongst themselves, the ne bis in idem principle is regulated by Article 20 (I) of the Rome Statute. Here ne bis in idem finds a full application on the ground of a previous final conviction/acquittal on the same facts; only appeal (Article 81) and revision (Article 84) are admitted exceptions.

1102. The Ad Hoc Tribunal for Rwanda has a jurisdiction limited to conduct occurring in 1994, but the ICTY’s jurisdiction is not limited temporally, so concurrence with the ICC, whose competence began on 1 July 2002, can not be excluded; neither possible jurisdiction conflicts with the Special Court for Sierra Leone and the Special Chambers of the Criminal Court in East Timor.

111Although consultations [101] or the Vienna Convention on the Law of Treaties [102] can be useful ways to choose the court best situated for the prosecution, the primacy of the ICTY is a general one and applies also towards the ICC [103]: therefore, one would be obliged to defer a case to the ICTYif there was a demand in this sense. No rule of the Rome Statute (or the regulations coming from it) foresees, in any event, this possibility.

112On the other hand, the ICTY Statute obviously ignored the existence of the ICC and only refers to “national courts.” However, according to the principle of complementarity, the ICC can be considered as an extension of national courts, so the ICC should receive the same treatment in the upwards ne bis in idem effect. Because of sham proceedings, current exceptions for “ordinary crimes” are not likely to be applied in this field.

113Article 20 of the ICC Statute does not make any reference to Ad Hoc International Tribunals. Nevertheless, reference to “another court” perfectly embraces those tribunals. Consequently, Article 20’s provisions would be fully applied in the case of conflict (also in conflicts with so-called “truth commissions”), [104] always with respect to the primacy of Ad Hoc International Tribunals.

114The Slovene Report [105] suggests that the UN Security Council should adopt a special resolution putting an end to ICTY jurisdiction after the entrance into force of the ICC Statute. Such a decision is not to be expected at short term; however, the Statutes of future Ad Hoc International Criminal Tribunals created by the United Nations should take into account the ICC’s presence and regulate in an accurate way possible concurrence and ne bis in idem conflicts.

V. Concluding remarks

1151. Transnational horizontal ne bis in idem recognition and application constitutes today a very important problem, due to the (many) States’ reluctance to admit a domestic res judicata effect coming from foreign decisions.

116Furthermore, the globalization phenomenon increases the risk of transnational jurisdictional concurrence. This is equally aggravated by the generalized tendency to expand national jurisdiction not only by means of the personality, protective, and universality principles, but also equally through the locus delicti definition.

1172. International vertical ne bis in idem also requires further developments in order to solve some undefined points and to assure a real protection in case of shamproceedings.

1183. An international regulation of transnational and international ne bis in idem could be an adequate tool in order to address the entire dilemma.

1194. International Regulation should begin with the recognition of ne bis in idem as a human right, as proposed by Resolution Section IV B. 4 adopted by the XVI International Congress of Penal Law (1999), “also applicable on the international or transnational level” and incorporated in the ICCPR and in regional human rights conventions,” therefore adopting a more individualistic human rights approach.

1205. But international ne bis in idem regulation should go further and, at least by regional or subregional instruments, establish the basis to prevent and to avoid ne bis in idem problems, as well as for a rational and uniform application of transnational ne bis in idem rules by the different States.

1215.1. The prevention of ne bis in idem scenarios must be the first step in international regulation. Efforts with this aim should be devoted to the establishment of international regulations that approach cases of concurrent jurisdiction from the outset : application of mechanisms and systems of early identification of double jeopardy cases would be very useful in this sense, as well as a means of opening dialogue in order to facilitate the adoption of consensual solutions among the affected States.

1225.2. Relating to a rational and uniform application of transnational ne bis in idem rules, the crucial points of the regulation that merit special mention are :

  • the definition of what is an idem (historical facts/incriminated offence), which is absolutely necessary in order to avoid disputes; taking into account the historical facts is, in this way, a much safer approach for individuals than the juridical identity;
  • the definition of when ne bis in idem has to take place : an adequate ne bis in idem protection should clearly begin to be effective with the first investigations, and this would be the only way to solve the problem of parallel prosecutions by several State jurisdictions for the same fact;
  • the requirement of enforcement as a prerequisite to the application of the ne bis in idem principle in cases of conviction; indeed, the development of instruments of assistance in criminal matters could help to reduce the importance of this prerequisite, facilitating the transfer of proceedings and the execution of foreign criminal decisions.

1235.3. Problems of compatibility in the prosecution of individuals and legal entities on the same crime should be also addressed, as well as the admissible exceptions in order to balance ne bis in idem protection with States’interests in prosecution, especially due to the extensive use of extraterritorial jurisdiction. The European Convention on the application of the Schengen Agreement provides for certain Rules that could be universally adopted. Application of the principle of deduction should guarantee a material ne bis in idem effect in cases of admitted new prosecutions.

1245.4. Finally, in order to avoid abuses, inclusion of a sham-clause would be necessary.

Notes

  • [*]
    Professor of Criminal Law. University of the Basque Country. Deputy of the General Secretary. International Association of Penal Law.
  • [1]
    M.C.Bassiouni, International Extraditon and World Public Order, Leyden, 1974,452.
  • [2]
    M.C.Bassiouni, ibidem, 452-453.
  • [3]
    70 International Review of Penal Law, 1999,908.
  • [4]
    Ibidem.
  • [5]
    W.Schomburg, Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem”. Report Germany, infra.
  • [6]
    See also B.N.Bulai, Romanian National Report on the subject Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem, ” infra; B.Geller, N.Kiss, P.Polt, Hungarian National Report on the Principle of ne bis in idem, infra.
  • [7]
    The “Global Report” mentions also the United Nations Standard Minimum Rules for the Treatment of Prisoners (Rule 30,1), the Universal Convention on Obscene Publications (art. 2,2) and the 1961 Unique Convention on Drugs (art. 36-2-a-iv).
  • [8]
    D.Spinellis, The ne-bis-in-idem principle in the “global” instruments, infra.
  • [9]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [10]
    See, however, the doctrinal discussion in Poland, L.Kubicki, Les compétences criminelles concurrentes nationales et internationales et le principe ne bis in idem, infra.
  • [11]
    In Indonesia, a system very much influenced by the Dutch system, several interpretations on what is a “feit” are proposed by the doctrine, but according to the Indonesian Report, “feit” should be interpretated like in the concursus idealis. R.M.Surachman, Country Report of “ne bis in idem,” or “double jeopardy” in Indonesia, infra.
  • [12]
    However, according to the Greek Report, a second prosecution is allowed by case law in Greece, “even if the second offence could have been included by the prosecuting and judicial authorities in the terminated proceedings.” I.Anagnostopoulos, Ne bis in idem, infra.
  • [13]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [14]
    Of the same State or Kingdom, if mutual enforceability is recognized. See A.Klip & H.van der Wilt, ibidem.
  • [15]
    See also case Grandiger, I.Gartner, Austrian National Report, infra.
  • [16]
    On the evolution of the European Court of Human Rights on this point, see however, H.J.Bartsch, Ne bis in idem : the European perspective, infra.
  • [17]
    “Una via-principle“, according to the Dutch Report, A.Klip & H.van der Wilt, AIDP-Non bis in idem. Report for the Netherlands, infra.
  • [18]
    And those based on certain formal reasons, like a withdrawal of the complaint, where required, or prescription, amnesty... are considered to give a final termination to criminal proceedings. I.Anagnostopoulos, Ne bis in idem, infra.
  • [19]
    In Slovenia, Article 31 of the Constitution gives an extended prohibition blocking retrial “also in cases when criminal proceedings have not been terminated with a judgment of conviction or acquittal, but by a judgment of refusal or criminal proceedings have been for whatever reason dismissed by a final decision.” As the Slovene Report points out, this solution has brought as a consequence “increasingly longer criminal proceedings in serious cases.” I.Bele, V.Jakulin, Ne bis in idem, infra. See also the Russian Report, B.Andreev, Non bis in idem in International and Russian Law, infra.
  • [20]
    See, however, on the reopening of proceedings concluded by a final penal order, W.Schomburg, Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem.” Report Germany, infra.
  • [21]
    I.Gartner, Austrian National Report, infra.
  • [22]
    See, however, in Finland, Germany, and Greece the possibilities of repetition of criminal proceedings, even against the defendant.
  • [23]
    B.Andreev, Non bis in idem principle in International and Russian Law, infra.
  • [24]
    The Slovene Report also sees a possible shift from ne bis in idem in the educational measures of the juvenile criminal law and in the application of longer sentences to multiple recidivists.
  • [25]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [26]
    In the People’s Republic of China, by those residing in the Chinese territory or extradited to China, if the period of limitation is not elapsed. Zhang Jun, Shan Changzong, Miao Youshui, China’s Theory and Practice on Ne bis in idem, infra.
  • [27]
    Arequest by the victim or the foreign prosecutor is also required according to some reports (e.g., Spain or Greece).
  • [28]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [29]
    D.Spinellis, The ne-bis-in-idem principle in the “global” instruments, infra. See, however, in Finland (PC 1 : 13), R.Lahti, Concurrent national and international criminal jurisdiction and the principle of ne bis in idem. Finnish national report, infra.
  • [30]
    I.Bele & V.Jakulin, Ne bis in idem, infra; with further comments.
  • [31]
    W.Schomburg, Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem.” Report Germany, infra.
  • [32]
    Object, e.g., in Brazil of an “extraterritorial unconditional application.” C.E.A.Japiassu, A.L. Barbosa de Sá, Competencias criminales nacionales e internacionales concurrentes y el principio del Ne bis in idem, infra. See also the Algerian Report, R.Zerguine, Les compétences criminelles concurrentes nationales et internationales et le principe ne bis in idem, infra.
  • [33]
    B.N.Bulai, Romanian National Report on the subject Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem”, infra.
  • [34]
    L.Desessard, France. Les compétences criminelles concurrentes nationales et internationales et le principe ne bis in idem, infra.
  • [35]
    R.Zerguine, Les compétences criminelles concurrentes nationales et internationales et le principe ne bis in idem, infra.
  • [36]
    I.Anagnostopoulos, Ne bis in idem, infra.
  • [37]
    H.J.Bartsch, Ne bis in idem : the European perspective, infra.
  • [38]
    See also, the NATO agreements, in particular, Article VII, 1951 London Convention on the NATO Treaty and 1964 European Convention on the repression of road traffic offences.
  • [39]
    H.J.Bartsch, Ne bis in idem : the European perspective, infra.
  • [40]
    For example, the 1957-with 1975 Additional Protocol- and 1996 Conventions on Extradition, 1970 European Convention on the International Validity of Criminal Judgments, 1972 European Convention on the Transfer of Proceedings in Criminal Matters, 1983 Convention on the Transfer of Sentenced Persons (and 1997 Additional Protocol) and 1991 European Union Convention on the Enforcement of Foreign Criminal Sentences.
  • [41]
    H.J.Bartsch, Ne bis in idem : the European perspective, infra.
  • [42]
    Binding –“as part of the acquis communautaire to date–May 2003-” by Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Italy, Luxemburg, the Netherlands, Norway, Portugal, Sweden and Spain. W.Schomburg, Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem.” Report Germany, infra.
  • [43]
    H.J.Bartsch, Ne bis in idem : the European perspective, infra.
  • [44]
    H.J.Bartsch, ibidem.
  • [45]
    C.Van den Wyngaert, “General Report. The Transformations of International Criminal Law in response to the challenge of organized crime,” Revue Internationale de Droit Pénal, 70,1999,172.
  • [46]
    See W.Schomburg, Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem.” Report Germany, infra.
  • [47]
    It 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.”
  • [48]
    H.J.Bartsch, Ne bis in idem : the European perspective, infra.
  • [49]
    W.Schomburg, Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem.” Report Germany, infra.
  • [50]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [51]
    L.Desessard, France. Les compétences criminelles concurrentes nationales et internationales et le principe ne bis in idem, infra.
  • [52]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [53]
    According to the Austrian Report, it would be more accurate to say by an “authority” fulfilling “the criteria of independence and irrevocability.” I.Gartner, Austrian National Report, infra.
  • [54]
    Critically, L.Desessard, France. Les compétences criminelles concurrentes nationales et internationales et le principe ne bis in idem, infra.
  • [55]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [56]
    COUNCIL OF EUROPE, Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Strasbourg, 1985,11-12.
  • [57]
    The German Report comments, however, on the interesting case France v. Krombach, where a French conviction-adopted in absentia and on the same evidence that had led the highest competent German Court not to prosecute- was considered by several European Courts as an infringement of art. 6 ECHR and by Austria as a violation of ne bis in idem that impeded extradition. W.Schomburg, Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem.” Report Germany, infra.
  • [58]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [59]
    T.Kawaide, Concurrent National and International Criminal Jurisdiction and the Principle “ne bis in idem” in Japan, infra. Also L.Kubicki, Les compétences criminelles concurrentes nationales et internationales et le principe ne bis in idem, infra.
  • [60]
    I.Gartner, Austrian National Report, infra.
  • [61]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [62]
    The Greek Report also insists on the absence of “mechanisms to prevent abuses,” a repetition of criminal proceedings not being applicable to foreign final judgments, according to the Greek Law. I.Anagnostopoulos, Ne bis in idem, infra.
  • [63]
    I.Gartner, Austrian National Report, infra.
  • [64]
    I.Gartner, ibidem. There is an obligation to do so if provided for in an applicable bilateral or multilateral agreement.
  • [65]
    L.Desessard, France. Les compétences criminelles concurrentes nationales et internationales et le principe ne bis in idem, infra.
  • [66]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [67]
    On the future impact in Europe due to the upcoming EU Arrest Warrant, see W.Schomburg, Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem.” Report Germany, infra.
  • [68]
    W.Schomburg, ibidem.
  • [69]
    Critically, W.Schomburg, ibidem.
  • [70]
    W.Schomburg, ibidem.
  • [71]
    W.Schomburg, ibidem.
  • [72]
    D.Spinellis, The ne-bis-in-idem principle in the “global” instruments, infra.
  • [73]
    Aparticularly interesting example is Belgium. Pursuant to the 1999 Genocide Act - a text that was the result of the reform of the 1993 War Crimes Act, which allowed very broadly the prosecution of war crimes, genocide, and crimes against humanity committed anywhere and by persons not even in Belgium (so in absentia)- several complaints were presented against foreign ministers, as well as against Sharon and Castro, and four persons were convicted in relation to the Rwandan genocide in 1994. However, amendments approved in April 2003 are going to restrict the application of the 1999 Genocide Act, regarding the respect of immunities and the limits in complaints, reserved exclusively to the Federal Prosecutor if no Belgian link can be found in the alleged crimes. T.Vander Beken, G.Vermeulen, T.Ongena, Concurrent National and International Criminal Jurisdiction and the Principle “ne bis in idem” in Belgium, infra.
  • [74]
    A.Cassesse, International Criminal Law, Oxford, 2003,320.
  • [75]
    L.Desessard, France. Les compétences criminelles concurrentes nationales et internationales et le principe ne bis in idem, infra.
  • [76]
    L.Desessard notes that, in a strict sense, prosecution is not barred, only a new trial is barred. Ibidem. But, as I.Gartner points out, further measures of prosecution are generally excluded. Austrian National Report, infra.
  • [77]
    According to the Belgian decision on the Four of Butare case, T.Vander Beken, G.Vermeulen, T.Ongena, Concurrent National and International Criminal Jurisdiction and the Principle “ne bis in idem” in Belgium, infra.
  • [78]
    T.Vander Beken, G.Vermeulen, T.Ongena, ibidem.
  • [79]
    D.Spinellis, The ne-bis-in-idem principle in the “global” instruments, infra.
  • [80]
    D.Spinellis, ibidem.
  • [81]
    C.L.Blakesley, “Extraterritorial Jurisdiction”, in M.C.Bassiouni (ed.), International Criminal Law, vol. II, Procedural and Enforcement Mechanisms, 2nd ed., New York, 1999, 103
  • [82]
    Revision could in this case operate “both in their favor and against them”. D.Spinellis, The ne-bis-in-idem principle in the “global” instruments, infra.
  • [83]
    I.Gartner, Austrian National Report, infra.
  • [84]
    For further interesting comments, see A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [85]
    W.Schomburg, Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem.” Report Germany, infra.
  • [86]
    Ibidem.
  • [87]
    See, however, L.Kubicki, Les compétences criminelles concurrentes nationales et internationales et le principe ne bis in idem, infra.
  • [88]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [89]
    M.C.Bassiouni, Introduction au droit pénal international, Bruxelles, 2003,260.
  • [90]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [91]
    T.Vander Beken, G.Vermeulen, T.Ongena, Concurrent National and International Criminal Jurisdiction and the Principle “ne bis in idem” in Belgium, infra. See also, L.Desessard, France. Les compétences criminelles concurrentes nationales et internationales et le principe ne bis in idem, infra.
  • [92]
    But see A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [93]
    Critically, because reference to circumstances that can be assigned objectively “provides a safer criterion.” D.Spinellis, The ne-bis-in-idem principle in the “global” instruments, infra.
  • [94]
    T.Vander Beken, G.Vermeulen, T.Ongena, Concurrent National and International Criminal Jurisdiction and the Principle “ne bis in idem” in Belgium, infra.
  • [95]
    Article 78 (2)’s provision is completly insuficient. T.Vander Beken, G.Vermeulen, T.Ongena, ibidem.
  • [96]
    Critically, T.Vander Beken, G.Vermeulen, T.Ongena, ibidem.
  • [97]
    M.M.Díaz Pita, Informe sobre el principio non bis in idem y la concurrencia de jurisdicciones entre los tribunales penales españoles y los tribunales penales internacionales, infra.
  • [98]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [99]
    C.E.A.Japiassu, A.L. Barbosa de Sá, Competencias criminales nacionales e internacionales concurrentes y el principio del Ne bis in idem, infra; L.Kubicki, Les compétences criminelles concurrentes nationales et internationales et le principe ne bis in idem, infra. However, in Germany and Slovenia, ratification of the ICC Statute (and in the case of Germany also because of Article 29 of the ICTY Statute) was accompanied by a reform of the Constitution in order to allow the extradition of their own citizens. W.Schomburg, Concurrent National and International Criminal Jurisdiction and the Principle “Ne bis in idem.” Report Germany, infra; I.Bele, V.Jakulin, Ne bis in idem, infra.
  • [100]
    I.Gartner, Austrian National Report, infra.
  • [101]
    A.Klip & H.van der Wilt, AIDP- Non bis in idem. Report for the Netherlands, infra.
  • [102]
    I.Gartner, Austrian National Report, infra.
  • [103]
    T.Vander Beken, G.Vermeulen, T.Ongena, Concurrent National and International Criminal Jurisdiction and the Principle “ne bis in idem” in Belgium, infra.
  • [104]
    D.Spinellis, The ne-bis-in-idem principle in the “global” instruments, infra.
  • [105]
    I.Bele, V.Jakulin, Ne bis in idem, infra.
José Luis De Lacuesta [*]
  • [*]
    Professor of Criminal Law. University of the Basque Country. Deputy of the General Secretary. International Association of Penal Law.
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