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1Preliminary remarks : This national report is strictly based on the Questionnaire presented in its final version by De la Cuesta/Eser and follows the given order of discussion. The report is primarily focused on a representation of the current legal background. I felt it appropriate to quote where possible the relevant provisions instead of describing the content. Opinions are briefly attached only where requested explicitly in the Questionnaire.

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

1. Is the ne bis in idem principle recognized by national law ?

2(a) What term –“ne bis in idem,” “double jeopardy,” “prohibition of double punishment,” etc.– is used to discuss this principle ? Both terms, “ne bis in idem ” and “prohibition of double punishment/ double prosecution,” are used interchangeably in practice.
(b) N. a.
(c) The principle is recognized domestically. It is primarily based on constitutional law : Basic Law (Grundgesetz für die Bundesrepublik Deutschland of 23 May 1949, Federal Law Gazette (Bundesgesetzblatt) I S. 1, hereinafter : GG):

3GG 103 (3) Niemand darf wegen derselben Tat auf Grund der allgemeinen Strafgesetze mehrmals bestraft werden. Nobody shall be punished several times for the same act based on general penal law.[1]

4In addition, it has to be recalled that Art. 14 (7) ICCPR also provides the same fundamental right, also limited, however, to an application on the domestic level only.

5However, it is undisputed that the wording of GG Art. 103 (3) is misleading. It is de jure the prohibition of a second prosecution (Grundsatz der Einmaligkeit der Strafverfolgung) [2]; it is an obstacle to initiate a second procedure that has to be observed ex officio. The concrete arrangement, the final meaning and the practical impact of this fundamental law can only be found in simple statutory law on criminal proceedings and decisions by the Constitutional Court (Bundesverfassungsgericht, hereinafter BVerfG) and Federal Supreme Court (Bundesgerichtshof : hereinafter BGH), respectively.

2. What is considered to be the decisive rationale of “ne bis in idem ”?

6The principle is based in German history on the principle of substantive justice, the requirement of legal certainty, and derives without question from the principle of proportionality. As early as 1902, the Reichsgericht (predecessor of the BGH) held in its decision of 30 September (RGST 2,347 ff) that there is a substantive right protecting the accused against double punishment. It is regarded as part of the fundamental principle of the rule of law, protecting the dignity of a human being. [3]

3. Prerequisites and scope of ne bis in idem :

7(a) The “idem” is related to the actual, historical event, viewed as a course of conduct (“facts”), same historical act in the sense of Section 264 of the German Code of Criminal Procedure - Strafprozessordnung of 1 February 1877 with the latest amendments [4] (hereinafter : StPO). [5] It suffices that these facts have been part of previous criminal proceedings, what is decisive is the identifiable intent of the prosecution to include an act in a previous bill of indictment. [6] However, it would be a mistake to believe that this term (TATBEGRIFF) has found a clear and definitive definition on the national level. [7] The aforementioned Section 264 [Subject Matter of the Judgement] reads as follows :

(1) The subject of adjudication shall be the offense specified in the charges and apparent in the light of the outcome of the hearing.
(2) The court shall not be bound by the offense’s evaluation which formed the basis of the order opening the main proceedings.

8- What types of tribunals can make decisions that qualify for a ne bis in idem effect ?
Clearly, final decisions by criminal courts following a full hearing resulting in acquittal or conviction. Decisions by other courts or authorities, such as administrative criminal proceedings, disciplinary proceedings, and the like do not have this effect. The extent to which decisions by the public prosecutor bar a second prosecution will be discussed later in the proper context. The fact that Germany is structured federally has no impact on the question before us.

9- What types of decisions prohibit additional proceedings on the basis of ne bis in idem ?
Not only “judgments on the merits of the case” (conviction or acquittal) following a full hearing of the case have the baring effect. Also a fixed penal order for summary punishment (Strafbefehl) has in principle the same effect (StPO, Section 410 para 3, which reads :

StPO, Section 410 (3)
Where objections to the penal order are not lodged in time the order shall be equivalent to a judgment that has entered into force.

10However, there is an important exception to this rule in StPO, Section 373 a, which reads :

StPO, Section 373 a
(1) Reopening of proceedings concluded by final penal order to the convicted person’s detriment shall also be admissible if new facts or evidence were produced which, either alone or in conjunction with earlier evidence, tend to substantiate conviction for a serious criminal offense.
(2) In other cases Sections 359 to 373 shall apply mutatis mutandis to the reopening of the proceedings concluded by a final penal order.

11In Germany, an acquittal can (also) be appealed, however, the appeals procedure is treated as an extension or continuation of the original (and thus not as a separate) case. It is, in fact, never seen as a question of ne bis in idem.

12Ne bis in idem applies (in addition to the aforementioned “judgments on the merits”) in principle also to “judgments on procedural grounds” as well, if not being of temporary nature only (e.g., Immunity for the period of membership in a parliamentary assembly).

13Other kinds of dismissals (by the court or the prosecuting authorities) can also result in an (limited) obstacle to new proceedings (beschränkter Strafklageverbrauch). In practice the most important provisions are StPO, Sections 153,153a, playing a dominant role in the prosecution of the vast majority of minor offences. They read as follows :

StPO, Section 153. [Non-Prosecution of Petty Offenses].
(1) If a less serious criminal offense is the subject of the proceedings, the public prosecution office may dispense with prosecution with the approval of the court competent for the opening of the main proceedings if the perpetrator’s culpability is considered to be of a minor nature and there is no public interest in the prosecution. The approval of the court shall be not required in the case of a less serious criminal offense which is not subject to an increased minimum penalty and where the consequences ensuing from the offense are minimal..
(2) If charges have already been preferred, the court, with the consent of the public prosecution office and the indicted accused, may terminate the proceedings at any stage thereof under the conditions in subsection (1). The consent of the indicted accused shall not be required if the main hearing cannot be conducted for the reasons stated in Section 205, or is conducted in the cases of Section 231 subsection (2) and Sections 232 and 233 in his absence. The decision shall be given in a ruling. The ruling shall not be contestable..
StPO, Section 153a [Provisional Dispensing with Court Action; Provisional Termination of Proceedings]
(1) In a case involving a less serious criminal offense, the public prosecution office may, with the consent of the court competent to order the opening of the main proceedings and with the consent of the accused, dispense with preferment of public charges and concurrently impose a condition upon the accused:
1. to make a certain contribution towards reparation for damage caused by the offense,
2. to pay a sum of money to a non-profit-making institution or to the Treasury,
3. to perform some other service of a non-profit-making nature,
4. to comply with duties to pay maintenance at a certain level, or
5. to participate in a seminar pursuant to section 2b subsection (2), second sentence, or section 4 subsection (8), fourth sentence, of the Road Traffic Act,
if such conditions and instructions are of such nature as to eliminate the public interest in criminal prosecution and if the degree of culpability does not present an obstacle.
The public prosecution office shall set a time limit within which the accused is to comply with such conditions and instructions, and which, in respect of the cases referred to in numbers 1 to 3 and 5 of the first sentence, shall be a maximum of six months and, in respect of the cases referred to in number 4 of the first sentence, a maximum of one year. The public prosecution office may subsequently revoke the conditions and instructions and may extend the time limit once for a period of three months; with the consent of the accused it may subsequently impose or change conditions and instructions. If the accused complies with the conditions and instructions, the offense can no longer be prosecuted as a less serious criminal offense. If the accused fails to comply with the conditions and instructions, there shall be no compensation for such contribution as he has made towards compliance. Section 153 subsection (1), second sentence, shall apply mutatis mutandis in the cases referred to in the first sentence, numbers 1 to 4.
(2) If the public charges have already been preferred, the court may, with the consent of the public prosecution office and of the indicted accused, provisionally terminate the proceedings up until the end of the main hearing in which the findings of fact can last be examined, and concurrently impose the conditions and instructions referred to in subsection (1), first sentence, on the indicted accused. Subsection (1), second to fifth sentences, shall apply mutatis mutandis. The decision pursuant to the first sentence shall be given in a ruling. The ruling shall not be contestable. The fourth sentence shall also apply to a finding that conditions and instructions imposed pursuant to the first sentence have been met.
(3) The running of the period of limitation shall be suspended for the duration of the time limit set for compliance with the conditions and instructions.

14In this context, a specific constellation having a baring effect on new proceedings has to be mentioned that will have, and has had already, an important impact on the transnational level as well :

Section 172. [Proceeding to Compel Public Charges]
(1) If the applicant is at the same time the aggrieved party, he shall be entitled to lodge a complaint against the notification made pursuant to Section 171 to the official superior of the public prosecution office within two weeks after receipt of such notification... .
(4) The Higher Regional Court shall be competent to decide on the application.
Section 174. [Dismissal of Application]
(1) The court shall dismiss the application if there is no sufficient reason for preferring public charges and shall notify the applicant, the public prosecution office and the accused of the dismissal.
(2) If the application has been dismissed, the public charges may be preferred only on the basis of new facts or evidence.

15Plea bargains, [8] i.e., in Germany: solutions of a case with the consent of the parties to the procedure under the guidance, control, and supervision of the court (Verständigung im Strafverfahren) [9] qualify for a ne bis in idem effect since they result in a judgment, penal order, or the application of the aforementioned Sections 153, 153 a of the StPO.

4. What are the legal consequences of the application of ne bis in idem?

16The determinative principle is a total “Erledigungsprinzip,” according to which ne bis in idem prohibits ex officio even the initiation of a subsequent preliminary investigation, and not only subsequent conviction or subsequent enforcement of sentence.

17Ne bis in idem becomes effective directly upon conviction or other kinds of termination of the proceedings mentioned before.

5. Are there exceptions from the principle of ne bis in idem ?

18There are first of all the aforementioned decisions with only “partial finality” (beschränkter Strafklageverbrauch). Furthermore, a final judgment is set aside, the case “reopened,” and new proceedings initiated under the prerequisites of Sections 362 or 359 of the Code of Criminal Procedure. They read as follows :

StPO, Section 362. [Reopening to the Defendant’s Detriment]
Reopening of proceedings concluded by a final judgment shall be admissible to the defendant’s detriment:
1. if a document produced as genuine, for his benefit, at the main hearing was false or forged;
2. if a witness or expert, when giving testimony or an opinion for the defendant’s benefit, was guilty of willful or negligent violation of the duty imposed by the oath, or of willfully making a false, unsworn statement;
3. if a judge or lay judge participated in drafting the judgment who was guilty of a criminal violation of his official duties in relation to the case;
4. if the person acquitted made a credible confession, in or outside the court, that he committed the criminal offense.

19And in favour of the accused:

StPO, Section 359. [Reopening for the Convicted Person’s Benefit]
Reopening of the proceedings concluded by a final judgment shall be admissible for the convicted person’s benefit:
1. if a document produced as genuine, to his detriment, at the main hearing was false or forged;
2. if a witness or expert, when giving testimony or an opinion to the convicted person’s detriment, was guilty of willful or negligent violation of the duty imposed by the oath, or of willfully making a false, unsworn statement;
3. if a judge or lay judge participated in drafting the judgment who was guilty of a criminal violation of his official duties in relation to the case, unless the violation was caused by the convicted person himself;
4. if a civil court judgment on which the criminal judgment is based is quashed by another judgment which has entered into force;
5. if new facts or evidence were produced, which, independently or in connection with the evidence previously taken, tend to support the defendant’s acquittal, or, upon application of a less severe penal norm, a lower penalty or an essentially different decision on a measure of reform and prevention;
6. if the European Court of Human Rights has found that there was a violation of the European Convention on the Protection of Human Rights and Fundamental Freedoms or of its Protocols and if the judgment was based on that violation.

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

1. Preliminary substantive-legal question : To what extent and according to what principles can the national criminal law of your country be applied to offenses committed abroad ?

20National criminal jurisdiction is applied more frequently to extra-territorial acts; for the reason that cases of concurrent jurisdiction between nations increases.

21The territoriality principle is only one principle among others – e.g., the principles of active or passive personality, the universality principle, the representational principle. The texts of Sections 5 to 7 of the German Criminal (Penal) Code of 15 May 1871 with the actual amendments until 2003 (Strafgesetzbuch, hereinafter : StGB) are impressive and self-explanatory as regards the developing broad extraterritorial application. This is subject to strong criticism of the hyperactivity of the legislator on the one hand, a legislator on the other hand driven to broaden this approach by lobbying groups representing special interests only. It is necessary to monitor this developing broad extra-territorial application in order to control its effectiveness, added value, or maybe even counter productivity. However, one should be aware of the increasing number of international treaties, conventions, and agreements providing for the extra-territorial application of domestic criminal law for the protection of regional or global interests, whether it is based on human rights or financial and economic interests.

22

StPO, Section 5 [Acts Abroad Against Domestic Legal Interests]
German criminal law shall apply, regardless of the law of the place the act was committed, to the following acts committed abroad:
1. preparation of a war of aggression (Section 80) ;
2. high treason (Sections 81 to 83) ;
3. endangering the democratic rule of law:
(a) in cases under Sections 89 and 90a subsection (1), and Section 90b, if the perpetrator is a German and has his livelihood in the territorial area of applicability of this law; and
(b) in cases under Sections 90 and 90a subsection (2) ;
4. treason and endangering external security (Sections 94 to 100a) ;
5. crimes against the national defense:
(a) in cases under Sections 109 and 109e to109g; and
(b) in cases under Sections 109a, 109d and 109h, if the perpetrator is a German and has his livelihood in the territorial area of applicability of this law;
6. abduction and casting political suspicion on another (Sections 234a, 241a), if the act is directed against a person who has his domicile or usual residence in Germany;
6a. child stealing in cases under Section 235 subsection (2), no. 2, if the act is directed against a person who has his domicile or usual residence in Germany;
7. violation of business or trade secrets of a business located within the territorial area of applicability of this law, an enterprise, which has its registered place of business there, or an enterprise with its registered place of business abroad, which is dependent on an enterprise with its registered place of business within the territorial area of applicability of this law and constitutes with it a group;
8. crimes against sexual self-determination:
(a) in cases under Section 174 subsections (1) and (3), if the perpetrator or the person against whom the act was committed are Germans at the time of the act and have their livelihoods in Germany; and
(b) in cases under Sections 176 to 176b and 182, if the perpetrator is a German;
9. termination of pregnancy (Section 218), if the perpetrator at the time of the act is a German and has his livelihood in the territorial area of applicability of this law;
10. false unsworn testimony, perjury and false affirmations in lieu of an oath (Sections 153 to 156) in a proceeding pending before a court or other German agency within the territorial area of applicability of this law, which is competent to administer oaths or affirmations in lieu of an oath;
11. crimes against the environment in cases under Sections 324, 326, 330 and 330a, which were committed in the area of Germany’s exclusive economic zone, to the extent that international conventions on the protection of the sea permit their prosecution as crimes;
11a. crimes under Section 328 subsection (2), nos. 3 and 4 subsections (4) and (5), also in conjunction with Section 330, if the perpetrator is a German at the time of the act;
12. acts, which a German public official or a person with special public service obligations commits during his official stay or in connection with his duties;
13. acts committed by a foreigner as a public official or as a person with special public service obligations;
14. acts which someone commits against a public official, a person with special public service obligations, or a soldier in the Federal Armed Forces during the discharge of his duties or in connection with his duties;
14a. bribery of a member of parliament (Section 108e) if the perpetrator is a German at the time of the act or the act was committed in relation to a German;
15. trafficking in organs (section 18 of the Transplantation Law), if the perpetrator is a German at the time of the act.
StPO, Section 6 [Acts Abroad Against Internationally Protected Legal Interests]
German criminal law shall further apply, regardless of the law of the place of their commission, to the following acts committed abroad:
1. (repealed by Article 2 of the “Act to introduce the Code of Crimes against International Law of 26 June 2002”); [10]
2. serious criminal offenses involving nuclear energy, explosives and radiation in cases under Sections 307 and 308 subsections (1) to (4),Section 309 subsection (2) and Section 310;
3. assaults against air and sea traffic (Section 316c) ;
4. trafficking in human beings (Section 180b) and serious trafficking in human beings (Section 181) ;
5. unauthorized distribution of narcotics;
6. dissemination of pornographic writings in cases under Section 184 subsection (3) and (4) ;
7. counterfeiting of money and securities (Sections 146, 151 and152), payment cards and blank Euro checks (Section 152a subsections (1) to (4), as well as their preparation (Sections 149, 151, 152 and 152a subsection (5) ;
8. subsidy fraud (Section 264) ;
9. acts which, on the basis of an international agreement binding on the Federal Republic of Germany, shall also be prosecuted if they are committed abroad.
StPO, [Section 7 Applicability to Acts Abroad in Other Cases]
(1) German criminal law shall apply to acts, which were committed abroad against a German, if the act is punishable at the place of its commission or the place of its commission is subject to no criminal law enforcement.
(2) German criminal law shall apply to other acts, which were committed abroad if the act is punishable at the place of its commission or the place of its commission is subject to no criminal law enforcement and if the perpetrator:
1. was a German at the time of the act or became one after the act; or
2. was a foreigner at the time of the act, was found to be in Germany and, although the Extradition Act would permit extradition for such an act, is not extradited, because a request for extradition is not made, is rejected, or the extradition is not practicable.

2. In your country, is the principle of ne bis in idem also prescribed on a transnational level?

23 GG, Art. 103 (3) - see above – is applicable on the domestic level only. This was emphasized by a decision of the Constitutional Court of 31 March 1987 [11] reflecting explicitly the legal situation “at that point in time”. However, when applying this principle on a transnational level the starting point for all kinds of interpretation of ne bis in idem clauses is the interpretation applied on a national level based on Art. GG 103 (3), see above. Originally, the sole legal basis for (discretionary) nonprosecution of acts committed abroad was StPO, Section 153 c, which reads as follows: [12]

StPO, Section 153c. [Non-Prosecution of Offenses Committed Abroad] [13]
(1) The public prosecution office may dispense with prosecuting criminal offenses:
1. which have been committed outside the territorial scope of this statute, or which an inciter or accessory to an act committed outside the territorial scope of this statute has committed within the territorial scope thereof;
2. which a foreigner committed in Germany on a foreign ship or aircraft. Section 153 f [14] shall apply to offenses punishable pursuant to the Code of Crimes against International Law [15];
(2) The public prosecution office may dispense with prosecuting an offense, if a sentence for the offense was already executed against the accused abroad, and the sentence which is to be expected in Germany would be negligible after taking the foreign sentence into account or if the accused has already been acquitted by final judgment abroad in respect of the offense.
(3) The public prosecution office may dispense with prosecuting criminal offenses committed within, but through an act committed outside, the territorial scope of this statute, if the conduct of proceedings would pose the risk of serious detriment to the Federal Republic of Germany or if other predominant public interests present an obstacle to prosecution.
(4) If charges have already been preferred, the public prosecution office may in the cases of subsection (1), numbers 1 and 2, and of subsection (2) withdraw the charges at any stage of the proceedings and terminate the proceedings if the conduct of proceedings would pose the risk of serious detriment to the Federal Republic of Germany, or if other predominant public interests present an obstacle to prosecution.
(5) If criminal offenses of the nature designated under section 74a subsection (1), numbers 2 to 6, and under section 120 subsection (1), numbers 2 to 7, of the Courts Constitution Act are the subject of the proceedings, the Federal Prosecutor General shall have these powers.
StPO Article 154 b provides an appropriate solution in case of concurrent jurisdiction: Section 154b. [Extradition and Expulsion]
(1) Preferment of public charges may be dispensed with if the accused is extradited to a foreign government because of the offense.
(2) The same rule shall apply if he is to be extradited to a foreign government or surrender to an International Criminal Court because of another offense and the penalty or the measure of reform and prevention in which the domestic prosecution might result is negligible in addition to the penalty or measure of reform and prevention which was imposed on him abroad with binding effect or which he is to expect abroad.
(3) Preferment of public charges may also be dispensed with if the accused is expelled from the territorial scope of this Federal statute.
(4) If in the cases of subsections (1) to (3) public charges have already been preferred, the court, upon application by the public prosecution office, shall provisionally terminate the proceedings. Section 154 subsections (3) to (5) shall apply mutatis mutandis, provided that the time limit in subsection (4) amounts to one year.

24However, in this transnational context, the German Code of Criminal Procedure, Art. 174, cited above, has to be recalled. In the case of France v. Krombach, the highest competent court [16] did not even find reasons for an initial suspicion, the prerequisite under German law for triggering investigations. France, however, started a new case based on exactly the same evidence but concurring (or better: conflicting) jurisdiction. Even new investigations would have been impossible in Germany. In doing so, the High Court in Munich was, in fact, overruled by the French Judiciary. Mr. Krombach was convicted in absentia to an imprisonment of 15 years. Several European Courts held that this decision was a flagrant infringement of his fundamental rights under Art. 6 of the ECHR. [17] Nevertheless, France tried, and still tries, to implement its decision both in Germany and elsewhere abroad. In Austria, where Mr. Krombach was temporarily arrested based on a French Arrest warrant in the Schengen Information System (SIS), the French decision was regarded as a violation of the principle of ne bis in idem, [18] applying SIA, Art. 54. Mr. Krombach was released and not extradited as requested by France.

25But how to treat this and similar cases in the near future based on (a) the upcoming principle of mutual recognition of foreign decisions within the EU (a provocative question would be: which one, the German or the French decision?) and (b) the upcoming EU Arrest Warrant ?

26First of all, one should not forget about the practical impact and actual destruction of the daily life of this individual for decades (the incriminated incident took place on 10 June 1982). This case seems to be a kind of litmus test, in the application of the conflicting principles (a) of “ne bis in idem,” (b) of “conflicting jurisdiction,” and, furthermore, (c) of “mutual recognition of foreign decisions in criminal matters.” It clearly demonstrates the broad scope of the unresolved problems before us.

27Limited to the EU/Schengen Area only, the application of the principle of ne bis in idem seems to be rather arbitrary. But what about this principle in relation to, e.g., Switzerland and other non-member states of the EU? On the other hand: What about the new members States of the EU as of May 2004? Can the principle be applied immediately as part of the acquis communautaire within then 25 countries based on mutual trust in a “common area of justice” ?

28For a better understanding, these provisions should be cited here:

Schengen Implementation Agreement, Chapter 3
B. Application of the “ne bis in idem” principle
Art. 54
A person who has been finally judged by a Contracting Party may not be prosecuted by another Contracting Party for the same offences provided that, where he is sentenced, the sentence has been served or is currently being served or can no longer be carried out under the sentencing laws of the Contracting Party.
Art. 55
1. A Contracting Party may, when ratifying, accepting or approving this Convention, declare that it is not bound by Article 54 in one or more of the following cases:
(a) where the acts to which the foreign judgment relates took place in whole or in part in its own territory; in the latter case, this exception shall not however apply if the acts took place in part in the territory of the Contracting Party where the judgment was given:
(b) where the acts to which the foreign judgment relates constitute an offence against State security or other equally essential interests of that Contracting Party;
(c) where the acts to which the foreign judgment relates were committed by an official of that Contracting Party in violation of the obligations of his office.
2. A Contracting Party which has made a declaration regarding the exceptionreferred to in paragraph 1(b) shall specify the categories of offences to which this exception may apply.
3. A Contracting Party may at any moment withdraw a declaration relating to one or more of the exceptions referred to in paragraph 1.
4. The exceptions which were the subject of a declaration under paragraph 1 shall not apply where the Contracting Party concerned has, in respect of the same acts, requested the other Contracting Party to prosecute or has granted the extradition of the person concerned.
Art. 56
If further proceedings are brought by a Contracting Party against a person who has been finally judged for the same offences by another Contracting Party, any period of deprivation of liberty served on the territory of the latter Contracting Party on account of the offences in question must be deducted from any sentence handed down. Account will also be taken, to the extent that national legislation permits, of sentences other than periods of imprisonment already undergone.
Art. 57
1. Where a Contracting Party accuses an individual of an offence and the competent authorities of that Contracting Party have reason to believe that the accusation relates to the same offences as those for which the individual has already been finally judged by another Contracting Party, these authorities shall, if they deem it necessary, request the relevant information from the competent authorities of the Contracting Party in whose territory judgment has already been delivered.
2. The information requested shall be provided as soon as possible and shall be taken into consideration as regards further action to be taken in the proceedings in progress.
3. At the time of ratification, acceptance or approval of this Convention, each Contracting Party will nominate the authorities which will be authorized to request and receive the information provided for in this Article.
Art. 58
The above provisions shall not preclude the application of wider national provisions on the “ne bis in idem” effect attached to legal decisions taken abroad.

29Furthermore, ne bis in idem provisions can be found in all NATO agreements, including penal provisions or rules on criminal procedure or assistance in criminal matters.

30Additionally, e.g., the bilateral treaty between Austria and Germany facilitating the application of the 1959 CoE Convention on Mutual Assistance of 31 January 1972, provides in Art. XV for a limited ne bis in idem as an obstacle to prosecution or implementation of a sanction in the requested State as a consequence of a successful request for transfer of a case to the requested state. [19] Other ne bis in idem clauses in conventions/treaties on extradition will be discussed in their proper context below.

31- Has the necessary domestic implementing legislation been enacted for any existing international agreements (transformation, national implementation)?

32Solely by the procedure of ratification and deposition accompanied by declarations and reservations. The agreement, as such, forms part of domestic statutory law.

33- If your country is a party to more than one international agreement, has an official hierarchy among these agreements been established? If not, how are issues of supremacy handled?

34There exists no hierarchical relationship between national and international regulations that determine the priority of competing jurisdictions. The possibility of “forum shopping” on the part of prosecution authorities/police or the defense on the basis of international ne bis in idem is still accepted as a part of what is, at this point in time, an insoluble problem of daily life.

35International ne bis in idem regulations have to be respected ex officio. At the same time, in interpreting these provisions – additionally - they have to be regarded as an individual right of the affected party. There is no doubt that non-observation in principle may serve as a reason for an appeal. If in doubt, since 1 May 1999, a regional/district court may, and the Federal Supreme Court has the obligation to, submit the case to the European Court in Luxemburg for a preliminary ruling. [20]

3. Prerequisites and scope of the horizontal-transnational application of ne bis in idem

36Seen from the German perspective, “the act” is defined and identified in the same way as it would be on the national level. This has found its explicit expression in the German Declaration when ratifying this instrument. Germany will interpret an act pursuant to Art. 54 as the historical event as described in the judgment to be accepted as binding. [21] However, a far more important question is, which standard is applied in the other member states to the aforementioned conventions ? Do they accept the German approach and vice versa does Germany accept the definition used abroad ? There is not yet any common basis or common jurisprudence, save the fundamental and rather rigid preliminary ruling in the ECJ Judgment in Gözütok/Brügge of 11 February 2003 (to be discussed separately in the report presented by Prof. H. -J. Bartsch). Based on this, one could argue that other member-states of the EU have also to accept the definitions abroad leading to a binding termination of the case. Under the current legal regime, however, it could be premature to come to this (consequent) conclusion.

37There are no such “personal identity” requirements of ne bis in idem as mentioned in the Questionnaire. It is undisputable that ne bis in idem can only be applied vis-à-vis the identical person. Alegal person’s conviction abroad would be no obstacle to proceedings against the natural persons acting on behalf of this legal person.

38The application of ne bis in idem in principle does not depend upon where the act was committed, e.g., at home or abroad. However, Germany has declared, when ratifying the Schengen Implementation Agreement (hereinafter : SIA), pursuant to SIA, Art. 55, that it is not bound by SIAArt. 54 if the underlying act of an offense, being the subject of a decision abroad, was committed in whole or in part on the territory of the Federal Republic of Germany. [22] The same reservation was made to exhaustively enumerated offenses by their nature protecting special German legal interests, such as in security-related offenses and offenses against the national security. These offenses can be found in the aforementioned catalogue.

39The status of the offender, e.g., state organ or public official, is irrelevant.

40- What types of foreign decisions and what types of foreign tribunals can bring about a transnational ne bis in idem effect ?

41No abstract criteria have been established yet that must be fulfilled by foreign decision-making bodies, depending upon the procedural method utilized, in order for the international blocking-effect to enter into effect. In the case of a foreign acquittal, it is irrelevant whether the acquittal is due to proof of innocence or a lack of evidence. In the case of a foreign conviction, the type of sanction imposed (incarceration/fine/etc.) is irrelevant.

42As regards the issuing authority abroad and the type of decision, the impact of ECJ Judgment in Gözütok/Brügge of 11 February 2003 cannot yet be fully assessed. It would be only consequent to grant the barring effect to all decisions abroad in criminal matters thereby terminating a case under the law of that foreign country and departing from previous decisions of the BGH.

43Transnational ne bis in idem requires in principle the completion of foreign proceedings.

44Prosecution at home is de jure –however, in all likelihood not in practice- not prevented even if procedures abroad are still ongoing save in cases of the applicability of a bilateral agreement barring the second procedure, e.g. based on the previous transfer to another country (e.g., Art. XV of the Additional agreement between the Federal Republic of Germany and The Republic of Austria... to The European Convention on Mutual Cooperation in Criminal Matters... of 31 January 1972. [23])

45- What are the legal consequences of a transnational application of ne bis in idem ? The foreign procedure, in a sense results in a complete obstacle to even the initiation of a preliminary investigation at home, save e.g., investigations on the legal or factual question of whether or not the prerequisites of ne bis in idem are met.

46(a) The principle of deduction of a foreign sentence/deprivation of liberty would be applicable in the absence of ne bis in idem clauses. Foreign sanctions need to be deducted in the fashioning of domestic sanctions, see Art. 51 (3) StGB, as if they were domestic sanctions. StGB, Section 51 reads in its relevant parts as follows :

Section 51 Crediting
(1) If a convicted person has undergone remand detention or other deprivation of liberty because of an act which is or was the object of the proceedings, the time served shall be credited towards any fixed term of imprisonment or fine. However the court may order that the credit be withheld in whole or in part if it is not justified in light of the conduct of the convicted person after the act...
(2) (omitted)
(3) If the convicted person has been punished abroad for the same act, then the foreign punishment, to the extent it has been executed, shall be credited towards the new one. Subsection (1) shall correspondingly apply to any other deprivation of liberty undergone abroad.
(4) When a fine is credited against deprivation of liberty, or vice versa, one day of the latter shall correspond to one daily rate. If a foreign punishment or deprivation of liberty is to be credited, the court shall determine the rate in its discretion.
(5) (omitted)
(b) In the case of applicability of the principle of ne bis in idem, a foreign guilty verdict alone would be sufficient.
(c) In the case of a conviction, it suffices that the sentence has been served or is currently being served. In case of a conviction on probation, this conviction is regarded as “currently being served.” [24] However, related to the enforcement element” there seem to be numerous gaps: e.g., What about a convicted person waiting for the enforcement of the sentence?
(d) Currently in the “common area(s) of justice” there are no mechanisms to prevent any abuse, such as the carrying out of “sham proceedings” in one country in order to cause the prohibition to attach in other countries, as e.g., foreseen in Art. 10 para. 2 of the ICTY Statute on a supranational basis.

5. What effect does ne bis in idem have on international legal assistance?

47 The most important provision in practical terms is to be found in the Council of Europe’s European Convention on Extradition of 13 November 1957 [25], hereinafter: CoE Extradition Convention). Its Art. 9 reads as follows:

Article 9 – Non bis in idem
Extradition shall not be granted if final judgment has been passed by the competent authorities of the requested Party upon the person claimed in respect of the offence or offences for which extradition is requested. Extradition may be refused if the competent authorities of the requested Party have decided either not to institute or to terminate proceedings in respect of the same offence or offences.

48 Three different scenarios need to be highlighted :

  • The requesting State and the requested State are both Member-States to a common ne bis in idem Convention/Treaty and the person has been tried in either the requesting or the requested State : Here the bar to a second prosecution becomes directly an obstacle to extradition.
  • The requesting State and the requested State are both Member-States of a common ne bis in idem Convention/Treaty and the person has been tried in one of the Member-States of this common agreement : Also, here the bar to a second prosecution becomes directly an obstacle to extradition.
  • The person has been convicted/acquitted in a country that is not a Member-State to a ne bis in idem Convention/Treaty to which the requesting State and the requested State are both Member-States. Here, from the German perspective, merely the extradition-specific obstacles are applicable, primarily the afore-cited Art. 9 CoE Extradition Convention.

49In the absence of any conventions/treaties/agreements on ne bis in idem and in case of German jurisdiction for a concrete case (see above the criticism on the extraordinary extension of jurisdiction in cases of crimes committed abroad) a one-sided application of the principle of ne bis in idem can be found in the German Law on international assistance in criminal matters of 23 December 1982 [26] (hereinafter : LIACM).

50LIACM, Art. 9 reads as follows :

Section 9 Concurrent Jurisdiction
If the act is also subject to German jurisdiction, extradition shall not be granted, provided
(1) a court or other authority in Germany has rendered a judgment or a decision with corresponding legal force or has declined to open the main trial (Sec. 204 of the Code of Criminal Procedure [Strafprozeßordnung – StPO]) or has denied a motion to issue a formal indictment (Sec. 174 of the Code of Criminal Procedure) or has suspended the proceedings after the satisfaction of conditions and instructions (Sec. 153 (a) of the Code of Criminal Procedure) or has, under juvenile criminal law, rescinded prosecution or has suspended the case (Secs. 45 and 47 of the Juvenile Court Act [Jugendgerichtsgesetz – JGG]), or
( 2) the statute of limitations for the prosecution or the enforcement has elapsed under German law or the prosecution or enforcement is barred by a German amnesty law.

51However, in such cases of concurrent jurisdiction, there are no specific rules for solving competing claims of competence. In practice, a solution will be found on EU level with the assistance of EUROJUST. [27] According to Art. 6(a) (ii) and 7 (a) (ii) of the Council Decision setting up Eurojust, Eurojust can ask the competent authorities of the EU Member States to accept that another Member State is in a better position to undertake an investigation.

52Clearly the mere possibility of identifying cases pending at the same time in two or more Member States is already a milestone towards avoiding “bis in idem ” constellations from the outset. It enables the Judiciary (sic !) to avoid indecent ways of forum shopping by police or the defense based on different interests in the allocation of a case. At the same time, it is an important contribution in the common fight against transnational crime by merely identifying transnational cases in their entirety and then to assign these cases to the country that is in the best situation to prosecute and try these cases. However there is not yet any obligation to follow such a request or recommendation.

53If such a consensual solution at the first step cannot be found, there is to date no institution or mechanism to assign with a binding authority a case to a single State exclusively. The solution can only be found by vesting the final decision on jurisdiction to a supranational authority, preferably the European Court, and within this court preferably by setting up a special chamber for all rulings in criminal matters (the need already exists today related to preliminary rulings in the interpretation of provisions in criminal matters). [28]

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

1. General issues concerning the relationship between national and supranational criminal jurisdiction

54Germany is a party to the Rome Statute of the International Criminal Court of 17 July 1998, [29] thereby accepting and enshrining in its national law the ne bis in idem provision in Art. 20 of this Statute. There is a special Law on the Implementation of the Rome Statute for the ICC of 17 July 1989 of 21 June 2002 introducing in its Article 1 a new “Law on Cooperation with the ICC,” [30] which, in principle, reflects on the vertical level the legal areas covered by the aforementioned LIACM on the horizontal level.

55For the purposes of this contribution, however, the “Act to introduce the Code of Crimes against International Law of 26 June 2002” [31] is far more important. Inter alia, Art. 3 (5), introduces a new Section 153 f into the German Code of Criminal Procedure for the vertical level in line with the approach taken on the horizontal level in the afore-cited StPO, Article 153c, which reads as follows :

1) In the cases referred to under Section 153c subsection (1), numbers 1 and 2, the public prosecution office may dispense with prosecuting an offence punishable pursuant to sections 6 to 14 of the Code of Crimes against International Law, if the accused is not present in Germany and such presence is not to be anticipated. If in the cases referred to under Section 153c subsection (1), number 1, the accused is a German, this shall however apply only where the offence is being prosecuted by a state on whose territory the offence was committed or whose national was harmed by the offence.
(2) In the cases referred to under Section 153c subsection (1), numbers 1 and 2, the public prosecution office can, in particular, dispense with prosecuting an offence punishable pursuant to sections 6 to 14 of the Code of Crimes against International Law, if:
1. there is no suspicion of a German having committed such offence,
2. such offence was not committed against a German,
3. no suspect in respect of such offence is present in Germany and such presence is not to be anticipated and
4. the offence is being prosecuted before an international court or by a state on whose territory the offence was committed, whose national is suspected of its commission or whose national was harmed by the offence. The same shall apply if a foreigner accused of an offence committed abroad is residing in Germany but the requirements pursuant to the first sentence, numbers 2 and 4, have been fulfilled and transfer to an international court or extradition to the prosecuting state is permissible and is intended.
(3) If in the cases referred to under subsection (1) or (2) public charges have already been preferred, the public prosecution office may withdraw the charges at any stage of the proceedings and terminate the proceedings.

56Germany has implemented the regulation of concurrent jurisdiction/ acceptance of priority and ne bis in idem as contained in Arts. 9, 10 of the ICTY Statute and in Arts. 8, 9 of the ICTR Statute in special laws on cooperation with these two Tribunals.  [32]

57(b) Having ratified the ICC Treaty and under the obligation of, inter alia, Art. 29 of the ICTY Statute to surrender everybody notwithstanding his/her nationality, Germany had to change its constitution allowing for the surrender of its own nationals to International Tribunals in principle [Grundgesetz, Art. 16 (II) Sentence 2].

58(c) Domestic courts are not required, ex officio, to examine whether the International Court has jurisdiction, however, there is the possibility to present a case to an International Tribunal in order to receive a decision whether or not the International Tribunal wants to exercise its in principle existing primacy. Clearly, an International Court can itself establish its position of primacy. If the International Court has jurisdiction, it can take over proceedings already in progress, as e.g., the ICTY did in the Tadic case. Mr. Tadic was surrendered to the ICTY the 24th of April 1995 based on a request of 12 October/8 November 1994 and the entering into force of the Law on cooperation with the ICTY on the 14th of April 1995, even though the case was already ripe for the trial hearing in Munich.

59I do not want to enter into a discussion of other issues related to and regulated by the Statutes of the International Tribunals themselves. They will be discussed in depth by other rapporteurs. At the same time, I have to show a lot of self-restraint, being currently seized with this problem in my profession as a judge of UN-Tribu-nals.

60However, I want to draw attention to one specific question only. There are situations in which, e.g., the ICTYtook over jurisdiction based on its primacy. However, based on its limited resources, the Tribunal may be compelled to limit the case to hear only some but not all investigated or indicted crimes/incidents. (see e.g., application of Rule 73 bis and the more general inherent obligation to concentrate and streamline the cases in the light of the remaining restricted time). What about those crimes/incidents not covered by the judgment or even not yet identified by the Office of the Prosecutor (OTP), but nevertheless forming part of the same criminal enterprise/continuous conduct committed by the alleged/convicted offender. Is there room for additional national investigations/convictions ? In my personal opinion, a decision by an International Tribunal must have a barring effect in the broadest possible way, otherwise the rationale of, e.g., Arts. 9,10 of the ICTY Statute would be undermined.

61This holds true also in cases of possible conflicting jurisdictions between International Tribunals in the future.

VI. Concluding Questions

62The international application of the ne bis in idem principle is currently one of the major issues in Germany and on a European level. Nobody can really estimate what the importance of this problem in the near future will be when the European Arrest Warrant is implemented and provisions contained in the Schengen acquis before mentioned will become relevant in about 25 States in Europe. Germany is still in the process of increasing awareness of this issue. Often, the fact that there is a case of ne bis in idem is not identified.

63However, from a practical point of view, the focus has to be on the minor offenses and their consensual solution. The prosecution must be concerned that its consensual solutions are internationally accepted as well and not undermined by fresh decisions abroad. The undermining of consensual solutions by conflicting decisions abroad endangers all attempts to use these tools at home. No defense counsel will in future accept such resource-saving solutions, knowing that such an agreement could be overruled in another State and therefore insist on a solution which does not have a finalizing effect for his/her client.

64The practical relevance is a result of increasing globalization, e.g., increase in international travel, growing number of foreign workers, but also on laws allowing for the prosecution of crimes committed abroad. Especially conventions allowing for or even demanding the exercise of jurisdiction in the fight against certain crimes enlarges the number of possible conflicts.

65However, one should never lose contact with the roots of the principle of ne bis in idem mentioned in the beginning. It is primarily the legitimate interest of an offender not to be under the obligation to defend him/herself against several prosecutions for one and the same conduct either in parallel or subsequently. In my opinoin, it is the correct approach to regard the right not to be prosecuted twice as a fundamental human right and it should be enshrined in existing human rights instruments, especially in common areas of justice such as the EU.

66It is, at the same time, in the sound interest of the judiciary not to be seized in several countries at the same time with the same case. Mutual respect and tolerance vis-à-vis decisions taken by colleagues abroad can be expected and will mutually be expected.

67However, a sham-clause seems to be necessary in order to avoid any kind of abuse. A solution has to be found how to identify, define, and finally decide whether such an abuse took place. One tool could be the authorization by a supranational court (in the framework of the EU, the European Court could function as the final arbiter) or the highest national court in the country that wants to start second proceedings.

68The best tool to overcome ne bis in idem problems seems to be to avoid them by early identification of double jeopardy cases and their prevention. For example, on EU level, Eurojust will serve and has to serve as a clearing office attempting to find consensual solutions among conflicting jurisdictions. If they cannot be found, it would be for the European Court to find a binding solution as the final arbiter to assign jurisdiction to one Member State only.

69Afirst step should be to review on a national level the domestic policy on ratification of existing legal tools in these areas. The table above illustrates only, in part, the gaps and the confusion created by different states of ratification in different Member States to a convention or the provisional application of conventions in some Member States since it is only based on Conventions today applicable in Germany. Anumber of instruments available for, but not (yet) ratified by, Germany – and other States – have been identified before.

70In conclusion, it seems to be necessary to elaborate (a) Convention(s) addressing the two sides of the same coin : conflicting jurisdiction and double jeopardy. The most important issues will be to resolve the question of concurrent jurisdictions by decisions of the Judiciary at first with the attempt to reach a consensual solution and, if necessary, by a binding decision of a common authority, based on objective criteria, such as best possible evidence, residence of the accused, protected interests of the alleged victims (be it Individuals or States) and to define :

71- What is “idem”? The same historical event seen from a natural perspective including or excluding continuous acts.

72- What is “bis”? or better: which kind of decisions will have the barring “ne bis in idem” effect.

73- Do we need the additional element related to the implementation of a sanction or wouldn’t it be better to apply the existing tools of extradition or – far better – on the transfer of sentenced persons?

74All efforts should be undertaken to find out what is possible to achieve this goal:

75(1) on a global level. What cannot be achieved on this global level should be envisaged;

76(2) on a regional level (e.g., on a pan European level, i.e., The Council of Europe). Only that which cannot be achieved on this level should be subject to provisions; and

77(3) on a sub-regional level (e.g., EU/Schengen or in other common areas of justice) as a consequence of the mutual recognition of decisions (not only sanctions) in criminal matters.

78There is no doubt : It will cost a lot of sweat to bring the national approaches together, especially when they have their foundation in different systems such as common law, relying more on the legal aspects/charges and civil law focusing primarily on the same historical act. The mere fact that the AIDP undertakes this comparative approach based on a huge number of national and international rapporteurs may and will serve as a first step to find a solution for this common problem.

79Finally I want to draw the attention to some selected literature in the German speaking area, in most cases not yet quoted in the body of this report :
Bohnert, Jean-F./Lagodny, Otto, Art. 54 SDÜ im Lichte der nationalen Wiederaufnahmegründe. Zugleich Besprechung von BGH, Urteil vom 10. 6. 1999 – 4 StR 87/98, NStZ 2000, S. 636 ff.
Dannecker, Gerhard, Community Fines and non-Member State Sanctions: the Effect of the Principle “ne bis in idem,” in Eser, Albin/ Rabenstein, Christiane (Hrsg.): Neighbours in Law. Are Common Law and Civil Law Moving Closer Together? Papers in honour of Barbara Huber on her 65th birthday, Freiburg im Breisgau 2001, S. 153 ff.
Ebensperger, Stefan, Strafrechtliches “ne bis in idem,” in Österreich unter besonderer Berücksichtigung internationaler Übereinkommen, ÖJZ 1999, S. 171 ff. Endriß, Rainer/ Kinzig, Jörg, Eine Straftat – zwei Strafen. Nachdenken über ein erweitertes “ne bis in idem,” StV 1997, S. 665 ff.
Geiger, Andreas, Strafrechtsharmonisierung aus Luxemburg, EuZW 2002, S. 705
Grotz, Michael, Das Schengener Durchführungsübereinkommen und der Grundsatz ne bis in idem, StraFo 1995, S. 102 ff.
Harms, Monika, Von Transactien, ordonnances de non-lieu und anderen europäischen Besonderheiten – der lange Weg zu einer einheitlichen Strafrechtsordnung, in Hanack, Ernst-Walter et al. (Hrsg.): Festschrift für Peter Rieß zum 70. Geburtstag am 4. Juni 2002, Berlin 2002, S. 725 ff.
Hecker, Bernd, Das Prinzip “Ne bis in idem” im Schengener Rechtsraum (Art. 54 SDÜ), StV 2001, S. 306 ff.
Jung, Heike, Zur “Internationalisierung” des Grundsatzes “ne bis in idem,” in Albrecht, Peter-Alexis et al. (Hrsg.): Festschrift für Horst Schüler-Springorum zum 65. Geburtstag, Köln u. a. 1993, S. 493 ff.
Kühne, Hans-Heiner, Ne bis in idem in den Schengener Vertragsstaaten. Die Reichweite des Art. 54 SDÜ im deutsch-französischen Kontext, JZ 1998, S. 876 ff.
Kühne, Hans-Heiner, Anmerkung zu BGH vom 10. 06. 1999, StV 1999, S. 478, StV 1999, S. 480 ff.
Kühne, Hans-Heiner, Ne bis in idem bei fremder mitgliedsstaatlicher Erledigung von Strafverfahren. Zugleich Besprechung der Entscheidung des EuGH vom 11. 02. 2003, JZ 2003, S. (erscheint noch)
Lagodny, Otto, Teileuropäisches “ne bis in idem” durch Art. 54 des Schengener Durchführungsübereinkommens (SDÜ), NStZ 1997, S. 265
Lagodny, Otto, Anmerkung zu BGH vom 13. 05. 1997, NStZ 1998, S. 149, NStZ 1998, S. 154
Lagodny, Otto, Viele Strafgewalten und nur ein transnationales ne-bis-in-idem?, in Donatsch, Andreas et al. (Hrsg.) : Strafrecht, Strafprozeßrecht und Menschenrechte. Festschrift für Stefan Trechsel zum 65. Geburtstag, Zürich 2002, S. 253 ff.
Landau, Herbert, Verwirklichung eines europaweiten “ne bis in idem” im Rahmen der Anwendung des § 153 c Abs. 1 Nr. 3 StPO, in: Köbler, Gerhard (Hrsg.) : FS Söllner, München 2000, S. 627 ff.
Mayer, Markus, Ne-bis-in-idem-Wirkung europäischer Strafentscheidungen, Frankfurt am Main u. a. 1992
Plöckinger, Oliver, Diversion und europaeisches ne bis in idem – Zugleich ein Beitrag zur Auslegung von Art. 54 SDÜ
Plöckinger, Oliver/Leidenmuehler Franz, Zum Verbot doppelter Strafverfolgung nach Art. 54 SDUE, wistra 2003, 81ff.
Radtke, Henning, Anmerkung zu BGH vom 28. 02. 2001, NStZ 2001, S. 662 ff.
Radtke, Henning/ Busch, Dirk, Transnationaler Strafklageverbrauch in den sog. Schengen- Staaten, EuGRZ 2000, S. 421 ff.
Rüter, In Jeschek/Vogler (Hrsg), FS-Tröndle(1990), 868, Grenzenlos glücklich(er)?
Schomburg, Wolfgang/Lagodny, Otto, Internationale Rechtshilfe in Strafsachen, 3. Aufl. 1998, Art. 54 SDÜ Rn 22 ff.
Schomburg, Wolfgang, Internationales “ne bis in idem” nach Art. 54 SDÜ. Zugleich eine Anmerkung zu einem Urteil des OLG Saarbrücken vom 16. 12. 1996 – Ss 90/95 122/95, StV 1997, S. 383 ff.
Schomburg, Wolfgang, Das Schengener Durchführungsübereinkommen, JBl. 1997, 558f.
Schomburg, Wolfgang, Anmerkung zu BGH vom 02. 02. 1999, StV 1999, S. 244, StV 1999, S. 246 ff.
Schomburg, Wolfgang, Die Europäisierung des Verbots doppelter Strafverfolgung – Ein Zwischenbericht, NJW 2000, S. 1833 ff.
Specht, Britta, Die zwischenstaatliche Geltung des Grundsatzes ne bis in idem, Berlin u. a. 1999
Stange, Falk/ Rilinger, Nadine, Art. 54 des Schengener Durchführungsübereinkommens (SDÜ) – ne bis in idem?, StV 2001, S. 540 f.
Thomas, Herbert, Das Recht auf Einmaligkeit der Strafverfolgung. Vom nationalen zum internationalen ne bis in idem, Baden-Baden 2002
Vander Beken, Tom/ Vermeulen, Gert/ Lagodny, Otto, Kriterien für die jeweils “beste” Strafgewalt in Europa. Zur Lösung von Strafgewaltskonflikten jenseits eines transnationalen Ne-bis-in-idem, NStZ 2002, S. 624 ff.
Werle, Gerhard, Konkurrenzen und Strafklageverbrauchder mitgliedschaftlichen Beteiligung an kriminellen oder terroristischen Vereinigungen, NJW 1980, S. 267 ff.
Wyngaert, Christine van den, Anmerkung zu BGH vom 13. 05. 1997, NStZ 1998, S. 149 ff., NStZ 1998, S. 153
Wyngaert, Christine van den/ Stessens, Guy, The international non bis in idem principle: Resolving some of the unanswered questions, ICLQ 1999, S. 779 ff.

Notes

  • [*]
    Wolfgang Schomburg currently is UN-Judge, appointed to the Appeal Chambers of both ICTY and ICTR ((schomburg@ un. org)
  • [1]
    Unauthorized translation.
  • [2]
    Maunz-Dürig/Schmidt-Assmann, GG, Art. 103, Rn 301.
  • [3]
    Maunz-Dürig/Schmidt-Assmann, GG Art. 103, Rn 258.
  • [4]
    See, inter alia, BGBl. 2002 I 2162 .
  • [5]
    BVerfGE 45,434,435.
  • [6]
    BGHSt 43,96; BGH LM § 264, No. 19.
  • [7]
    See e. g. Ungern-Sternberg ZStW 94 ( 1982), 84.
  • [8]
    A term in Germany normally not used.
  • [9]
    See the mandatory and strict prerequisites for these proceedings set out in the decision of the Federal Supreme Court of 28 August 1997, BGHSt. 43,195.
  • [10]
    BGBl 2002 I 2254; the English version : hhttp :// www. iuscrim. mpg. de/ forsch/ legaltext/ vstgbleng. pdf
  • [11]
    BVerfGE 75,1,15.
  • [12]
    Landau (see : bibliography) strongly recommends a more frequent use of this instrument.
  • [13]
    Amended version, introduced by the “Act on the implementation of the Rome Statute for the International Criminal Court”, BGBl. 2002 I 2162.
  • [14]
    Cited beyond.
  • [15]
    BGBl 2002 I 2254; the English version : http :// www. iuscrim. mpg. de/ forsch/ legaltext/ vstgbleng. pdf
  • [16]
    OLG München of 9 September 1987.
  • [17]
    European Court of Human Rights, Krombach v. France, Application no. 2971/96, Judgement of 13 February 2001 : http ://hudoc.echr.coe.int/hudoc/ViewRoot.asp ?Item=0&Action=Html&X=519155310& Notice=0&Noticemode=&RelatedMode=0 And European Court, Judgement of 28. March 2000 (Plenary) Rs. C – 7/98 reprint in German EuGRZ 2000,160 or http ://curia.eu.int/jurisp/cgi-bin/form.pl ?lang=de&Submit=Suchen&docrequire=judgem ents&numaff=&datefs=&datefe=&nomusuel=Krombach&domaine=&mots=&resmax=100
  • [18]
    OLG Innsbruck, Decision of 2 February 2000 – 6 Bs 43/00 = NStZ 2000,663.
  • [19]
    See Schomburg/Lagodny, Internationale Rechtshilfe in Strafsachen, 3. Aufl. München 1998, II B.
  • [20]
    Law of 6 August 1998 on Art. 35 Treaty on European Union, see Schomburg/Lagodny, supra FN 9, III F.
  • [21]
    BGBL. 1994 II 631.
  • [22]
    BGBL. 1994 II 631.
  • [23]
    BGBl. 1975 II 1157,1976 II 1818; See Schomburg/Lagodny, Internationale Rechtshilfe in Strafsachen, 3. Ed., München 1998,572,575.
  • [24]
    BGHSt. 46,187.
  • [25]
    http ://conventions.coe.int/treaty/en/Treaties/Word/024.doc. This may serve as the most updated source, to find the-states partner to this Convention. An overview on the main treaty-based tools of co-operation in criminal matters applicable for Germany can be found on the Internet under : hhttp :// www. bundesgerichtshof. de/ index. php ? bibliothek/ rechtshilfe
  • [26]
    BGBL. 1982 I 2071 in the version of the publication of 28 June 2002, BGBL. 2002 I 2162.
  • [27]
    (European Union’s) Council Decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime – Official Journal L63,1 of 6 March 2002. Eurojust has been operational in The Hague since April 2003.
  • [28]
    See in more detail on this issue : Lagodny, Otto : Empfiehlt es sich, eine europäische Gerichtskompetenz für Strafgewaltskonflikte vorzusehen ?, Gutachten im Auftrag des Bundesministerium für Justiz, Berlin, März 2001.
  • [29]
    BGBL. 2000 II 1393.
  • [30]
    Gesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof (IStGHG), BGBl 2002 I 2144.
  • [31]
    BGBl 2002 I 2254; the English version : http :// www. iuscrim. mpg. de/ forsch/ legaltext/ vstgbleng. pdf
  • [32]
    As for the ICTY : Law of 10 April 1995, BGBl 1995 I 485 in its version of June 2002, BGBl. 2002 I 2163; nearly identical for the ICTR : Law of 1998, BGBL 1998 I 843 in its version of June 2002, BGBl. 2002 I 2163.
Wolfgang Schomburg [*]
  • [*]
    Wolfgang Schomburg currently is UN-Judge, appointed to the Appeal Chambers of both ICTY and ICTR ((schomburg@ un. org)
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