Principle of “ne bis in idem”
The term “ne bis in idem” is a fundamental legal principle in criminal law, often translated in German as “not twice for the same matter” or “prohibition of double jeopardy.” This principle is intended to prevent an individual from being prosecuted or punished more than once for the same act. The protection under “ne bis in idem” is one of the fundamental principles of modern constitutional states and holds both national and international significance.
Historical Development and Legal Sources
Origin and Development
The principle of “ne bis in idem” can already be found in Roman law. Since then, this principle has spread throughout numerous legal systems and has been codified in international treaties.
National and International Legal Basis
- German law: Art. 103 para. 3 of the Basic Law (GG) explicitly states: “No one may be punished more than once for the same act under the general criminal laws.”
- Code of Criminal Procedure (StPO): § 264 StPO defines the legal effects of finality and scope of application.
- European Convention on Human Rights (ECHR): Art. 4 Protocol No. 7 to the ECHR guarantees protection from double prosecution in the contracting states.
- Charter of Fundamental Rights of the European Union: Art. 50 prohibits double prosecution and punishment within the EU.
- International law: The International Covenant on Civil and Political Rights (ICCPR) contains corresponding guarantees.
Scope of Application and Significance
Personal and Substantive Scope
The principle of “ne bis in idem” applies to natural persons and mostly in criminal law, but in certain cases also in administrative offenses law. The rule concerns violations of criminal law or sanctions of a punitive nature (“punitive sanctions”) only.
Aspects of Criminal Law
- Core area: Protection against multiple prosecutions for the same procedural offense.
- Secondary consequences in criminal law: Measures such as detention or accessory penalties may also be covered if they have punitive character.
- Distinction from other proceedings: The prohibition does not apply to civil or administrative proceedings unless sanctions in these proceedings are, in effect, of a criminal nature (in light of the case law of the European Court of Human Rights and the Court of Justice of the European Union).
Definition of Offense and Finality of Judgments
Procedural concept of the offense
In German law, the concept of the ‘act’ is decisive. It refers to the procedural act, which is based on a ‘single set of factual circumstances.’ This determines the core scope of protection.
Finality of Judgments and Reopening of Proceedings
Once a judgment has become final, renewed prosecution for the identical offense is excluded. Only a few exceptions are prescribed by law, e.g., in the context of reopening proceedings (such as when new evidence favors the accused or if acquittal was obtained through deception).
Ne bis in idem in the European and International Context
European Union
Within the European Union, the principle of “ne bis in idem” is of particular importance, especially in the context of judicial cooperation in criminal matters. According to Art. 54 CISA (Schengen Implementation Convention), the principle applies to all participating states. This means that a person who has been finally convicted or acquitted in one Member State cannot be prosecuted again for the same act in another Member State.
European Court of Human Rights (ECtHR)
Through its interpretation of Art. 4 Protocol No. 7 ECHR, the ECtHR has clarified that “ne bis in idem” can also cover administrative sanctions if these, in their severity and function, are comparable to criminal penalties.
Significance under International Law
The principle is also found in international criminal tribunals, such as the International Criminal Court (ICC), where criminal proceedings for certain crimes may not be conducted twice (Art. 20 Rome Statute).
Distinctions and Exceptions
Multiple Acts and Concurrence
The principle does not apply to repeated offenses, such as continuous offenses or multiple similar but separate sets of circumstances.
Exceptions under National and International Law
- Reopening to the detriment of the accused: Only in narrowly defined cases regulated by law, such as in cases of serious procedural fraud.
- Prosecution in different countries: In international criminal law, double prosecution and double punishment are possible in certain exceptional cases, when a state brings charges for particularly serious crimes (“ordre public” clause).
Recent Legal Developments and Practice
The case law on the scope and interpretation of the “ne bis in idem” principle is constantly evolving. This is particularly relevant in the case of parallel administrative and criminal proceedings (e.g., tax offenses), cross-border matters, and in the context of digital investigations.
The Court of Justice of the European Union (CJEU) has also recently further clarified the scope of the prohibition, especially in connection with cross-border administrative fine proceedings and cartel sanctions.
Practical Significance
Observance of the “ne bis in idem” principle is of particular importance for legal certainty and the protection of legitimate expectations. It helps to avoid legal uncertainty and protect against state double prosecution, and stands for a fundamental principle in modern constitutional states.
References
- Löwe-Rosenberg, StPO, § 264 annotations on the procedural act
- Roxin, Criminal Procedure Law
- Meyer-Goßner/Schmitt, StPO Commentary
- Stuckenberg, International and European Criminal Procedure
- Decisions of the ECtHR on Article 4 Protocol No. 7
Note: This article provides a comprehensive overview of the legal situation regarding the “ne bis in idem” principle and its various areas of regulation. The interpretation and application may continue to develop through new case law and legislation.
Frequently Asked Questions
What requirements must be met for the “ne bis in idem” principle to apply?
The “ne bis in idem” principle protects a person from being prosecuted or punished more than once for the same act. For this principle to apply, various requirements must be cumulatively met: First, a final decision (e.g., a judgment or penalty order) by a competent authority or court regarding the punishability of the act must have been made. This decision may involve a conviction, an acquittal, or the final discontinuation of proceedings. Another basic prerequisite is the identity of the act (“the same act”), which is usually defined by the procedural act: the factual events underlying the proceedings must fundamentally coincide, regardless of the legal assessment or qualification. It is also decisive that the prosecution concerns the same person and that the renewed process is a criminal proceeding – purely administrative offense or civil proceedings are generally not covered, unless the relevant national or supranational law (e.g., Art. 54 CISA or Art. 50 Charter of Fundamental Rights of the EU) explicitly extends to such proceedings. Furthermore, there must be a substantive decision; mere procedural obstacles or formal discontinuations (e.g., due to lack of suspicion or limitation period) are not usually sufficient.
Does the “ne bis in idem” principle apply only under national law or internationally as well?
The “ne bis in idem” principle is anchored both nationally and internationally or supranationally. In Germany, it is established in Art. 103 para. 3 GG and § 264 StPO. At the European level, the fundamental right is found in Art. 50 of the Charter of Fundamental Rights of the European Union and Art. 54 of the Schengen Implementation Convention (CISA). The European Convention on Human Rights (ECHR) regulates it in Art. 4 Protocol No. 7, although not all Member States have ratified this protocol. In the international context, the field of application must be individually considered: for example, Art. 54 CISA applies only among the Contracting States of the Schengen Area, while other countries have their own rules. Therefore, what is decisive is always which national or international standard is applicable and how it specifically defines the “ne bis in idem” principle – especially in the context of foreign decisions and cross-border prosecutions.
What is meant by the “identity of the act” within the meaning of the “ne bis in idem” principle?
In the legal context, the “identity of the act” does not refer to a purely formal match of the charges, but to the underlying set of facts. The prevailing opinion in Germany is guided by the concept of the “procedural act” (§ 264 StPO), which includes all actions and omissions that form a single, coherent sequence and are identical in their wrongful accusation. This covers the entire historical course of events – regardless of how many criminal offenses were reviewed or violated. In the European Union, especially through the case law of the CJEU, the concept is interpreted more broadly: what counts is the “concrete set of facts,” characterized by a series of inseparably linked facts, regardless of the legal qualification in Member States. Multiple charges concerning the same factual core thus violate the “ne bis in idem” principle, even if national laws derive different offenses from them.
Are there exceptions to the “ne bis in idem” principle, and if so, under what conditions?
The “ne bis in idem” principle recognizes a few but significant exceptions, which may be regulated either nationally or internationally. For example, under Art. 55 CISA renewed prosecution by another state may occur if the act was aimed against an official, institution, or member of one’s own state or involved significant state interests. Also, if the imposed sanction (e.g., fine) was not enforced, renewed prosecution may be possible. Under German law, certain grounds for reopening proceedings (§ 362 StPO) – such as in the case of new evidence or miscarriages of justice – are allowed, even after a final decision has been made. In exceptional cases, prosecution is also permitted for international crimes or in the case of conflicts of jurisdiction between international courts (e.g., the International Criminal Court and national courts). The exact conditions and limits of such exceptions are set out in law or treaties.
How does an acquittal affect the “ne bis in idem” principle?
A final acquittal is of crucial importance to the “ne bis in idem” principle, as any further prosecution for the same facts is generally impermissible. This applies regardless of the grounds for the acquittal (e.g., factual or legal reasons). The only way to deviate from this is through the reopening of proceedings to the detriment of the accused, as provided for in § 362 StPO – such as in cases of perjury, forgery of documents in the proceedings, or subsequently discovered serious evidence. These exceptions are very narrowly limited so as to strengthen trust in legal certainty and the finality of binding decisions. A renewed prosecution for “re-examination” of the same matter is excluded.
What is the relationship of the “ne bis in idem” principle to administrative or disciplinary proceedings?
The relationship between criminal proceedings and administrative or disciplinary proceedings is complex and depends on the relevant area of law. Under German law, the “ne bis in idem” principle strictly applies only to criminal proceedings. A disciplinary proceeding or a proceeding concerning administrative offenses may generally be initiated in parallel with or after completion of criminal proceedings. In the European context, and especially following the case law of the ECtHR (e.g., “customs proceedings” – Engel criteria), an administrative sanctioning process may, under certain conditions, be of a criminal nature (so-called “criminal charge”), in which case the “ne bis in idem” principle can also apply. The assessment is based on criteria such as the nature and severity of the sanction, its purpose, and type of proceedings. Where fine authorities impose significant financial penalties, a final decision in such a proceeding could also preclude further criminal prosecution.
Is the “ne bis in idem” principle also relevant in preliminary investigations?
The “ne bis in idem” principle already takes effect during preliminary investigations, especially if a decision is made that is equivalent to a final decision on the merits (e.g., discontinuation for lack of suspicion under § 170 para. 2 StPO however, is not a bar to the resumption of investigations in the case of new evidence). Only upon final termination of the proceedings (e.g., by court decision or a final penalty order) does the principle unfold its full preclusive effect. Thus, ongoing investigations do not yet create a definitive bar to prosecution, while resumption of proceedings after a final conclusion is only possible in narrowly defined statutory exceptions. Conversely, if the public prosecutor’s office orders final discontinuation due to proven innocence, this is also binding for subsequent proceedings concerning the same facts.
