Prohibition of double jeopardy
The prohibition of double jeopardy, internationally often referred to as the ‘ne bis in idem’ principle, is a central tenet of modern constitutional states. It stipulates that no one may be prosecuted or punished more than once for the same act. This basic principle serves to protect individuals from multiple prosecutions by the state and is firmly anchored in both national and international legal systems. The following explains in detail the various legal aspects, the systematic classification, and the practical significance of the prohibition of double jeopardy.
Legal bases
National law
In German law, the prohibition of double jeopardy is enshrined in Article 103(3) of the Basic Law (Grundgesetz, GG). It states: “No one may be punished more than once under general criminal laws for the same act.” Further statutory provisions can be found, for example, in Section 84(1) of the Act on Regulatory Offenses (OWiG) and Section 264 of the Code of Criminal Procedure (StPO).
International and European law
At the European level, the prohibition of double jeopardy is regulated in Article 50 of the Charter of Fundamental Rights of the European Union, as well as in Article 4 of Protocol No. 7 to the European Convention on Human Rights (ECHR). A corresponding principle also exists in the Rome Statute of the International Criminal Court (Article 20).
Scope of application
Material scope of application
The prohibition generally extends to all criminal proceedings, but refers exclusively to the ‘same act.’ This is assessed according to the so-called ‘factual event concept’—what is decisive is the underlying set of facts, not merely the legal qualification.
It should be noted that, in addition to actual identity, legal assessment also plays a role. If different criminal offenses are involved, the prohibition of double jeopardy applies only if they relate to the same underlying set of facts.
Personal scope of application
The prohibition of double jeopardy protects any person in the context of criminal proceedings, regardless of their nationality or status as suspect, defendant, or convicted person. Legal entities may also be protected if criminal or administrative fine proceedings are conducted against them.
Practical significance and legal consequences
Conclusion of proceedings
The prohibition of double jeopardy presupposes that a final and binding decision has already been made on the act. A newly initiated criminal proceeding regarding the same set of facts is therefore inadmissible. Proceedings already initiated must be discontinued, and corresponding decisions must be vacated.
Cross-border cases
The prohibition of double jeopardy generally applies within the jurisdiction of the respective legal order. With the entry into force of the Schengen Implementation Convention (SIC), as well as through the ECHR and the EU Charter of Fundamental Rights, the principle has been extended to cover the entire European area: a person may not be prosecuted again for the same set of facts in one Member State of the European Union if a final decision has already been rendered in another Member State (cross-border prohibition of double jeopardy, Article 54 SIC).
Relation to other sanctions
Administrative law sanctions
A distinction is necessary when administrative measures are imposed in addition to criminal ones. What is decisive is whether, by their nature, the administrative sanction qualifies as a ‘criminal offense’ within the meaning of the European Convention on Human Rights or the Charter of Fundamental Rights of the EU. Particularly relevant here is the so-called Engel formula of the European Court of Human Rights, which provides that certain administrative measures may be equated with a criminal sanction.
Penalty orders, administrative fines, and regulatory offenses
The scope of application also extends to penalty orders and administrative fine notices, as soon as they become final and binding. If both an administrative fine and a criminal proceeding are initiated for the same set of facts, this is only permissible as long as no final decision has been issued. Once finality is reached, further proceedings are excluded.
Exceptions and limitations
Despite its broad protective scope, certain exceptions to the prohibition of double jeopardy are provided. Thus, retrial proceedings to the detriment of the convicted or acquitted person may be possible under the strict requirements of Sections 359 et seq. StPO, without violating the prohibition against double jeopardy. Prosecution in different countries outside the European Union is also generally possible, provided that there are no conflicting provisions under international law.
Systematic context and purpose
The prohibition of double jeopardy is an essential component of the rule of law principle. It aims to protect individuals from arbitrary multiple prosecutions, to ensure legal certainty, and to counteract the risk of harassment through repeated criminal measures. The principle is intended to ensure that, after a final decision, the state’s claim to prosecution expires and that individuals are protected in their personal and economic planning certainty.
International comparison and significance in practice
Internationally, the prohibition of double jeopardy is a generally recognized principle. Especially in the area of cross-border crime, such as economic offenses or organized crime, the principle plays an important role in practice. Within the European Union, the ne bis in idem principle also pursues the objective associated with the creation of a European Area of Justice, namely, to foster mutual trust in the respective legal systems and to prevent multiple prosecutions.
Literature and case law
The case law of the Federal Constitutional Court, the European Court of Human Rights, and the European Court of Justice is of central importance, as they have concretized the prohibition of double jeopardy in numerous decisions. Landmark rulings clarify, in particular, the interpretation of the concept of an act, the question of res judicata, and the cross-border validity of the principle within the European Union.
Conclusion
The prohibition of double jeopardy is a fundamental principle that safeguards legal peace and trust in the rule of law both nationally and internationally. It protects individuals from being prosecuted and punished multiple times for the same factual circumstances, but at the same time, it is structured with differentiation to ensure fair and effective criminal justice. In the constantly evolving legal environment, particularly in the European context, the prohibition of double jeopardy remains a crucial element of individual legal protection.
Frequently Asked Questions
How is the prohibition of double jeopardy implemented in Germany?
The prohibition of double jeopardy is mainly regulated in Germany by Article 103(3) of the Basic Law (GG) and Section 1 of the Criminal Code (StGB). It states that no one may be punished more than once for the same act. In practice, this is ensured by the fact that after a final criminal court decision on an act, no further criminal proceedings can be initiated, nor can any further penalties be imposed regarding the same set of facts. This also includes the prohibition of multiple sanctions for identical actions by different criminal courts within Germany. The finality of a judgment is a key criterion: if a first-instance judgment, which can no longer be appealed by legal remedies, becomes effective, a new proceeding is excluded. Moreover, procedures that have started and been concluded are to be respected. Comparable regulations for regulatory offenses and administrative proceedings can be found in the Act on Regulatory Offenses (OWiG). Special significance is also attached to the provisions on retrial proceedings, in which a new assessment is possible after completion of proceedings, albeit under strict conditions.
Does the prohibition of double jeopardy also apply to tax and regulatory offenses?
The prohibition of double jeopardy does not apply exclusively to criminal law but also extends to regulatory offenses, as regulated, for example, in the Act on Regulatory Offenses (OWiG). According to Section 84 OWiG, no one may be subjected to a sanction again for the same act already punished as an administrative offense. This means that a process that has already been sanctioned with final effect—such as a traffic offense—cannot be penalized again with a fine or other measures. In tax law, this principle appears in Section 398a of the Fiscal Code (AO) as well as in connection with voluntary disclosures in Section 371 AO, especially in order to prevent double punishment for identical tax violations—for example, with a tax offense and a tax regulatory offense for the same set of facts. A distinction must be made in the case of any parallel prosecution of a criminal act and a regulatory offense, as long as both proceedings relate to the same facts.
What limitations exist regarding the international application of the prohibition of double jeopardy?
The international dimension of the prohibition of double jeopardy is supplemented in German law by international and European legal requirements. In principle, Article 54 of the Schengen Implementation Convention (SIC) protects against a person being prosecuted and punished in different contracting states of the SIC for the same act. However, there are exceptions, such as when the judgment in the first state has not been enforced. At the EU level, Article 50 of the EU Charter of Fundamental Rights also provides for a prohibition of double jeopardy—but with the limitation that it concerns proceedings in the Member States where the act was prosecuted. Outside Europe, or in relation to states without corresponding treaty obligations, the national prohibition of double jeopardy does not apply; states may prosecute independently of each other. Extradition practice is generally limited by the prohibition, provided relevant agreements exist.
What is meant by ‘the same act’ in the context of the prohibition of double jeopardy?
In the legal context, the interpretation of what constitutes ‘the same act’ is decisive for the application of the prohibition of double jeopardy. German case law follows what is known as the ‘procedural concept of an act.’ Accordingly, ‘the same act’ comprises the unified historical sequence of events on which the law enforcement authorities acted—regardless of legal assessment or the specific criminal provision. The crucial factor is therefore whether the set of facts underlying the previous decision is identical to that which is to be the subject of a new proceeding. The distinction becomes particularly important in cases where, for example, a behavior violates multiple legal norms or affects different legal interests.
How is the relationship between criminal sanctions and administrative measures assessed?
The prohibition of double jeopardy primarily refers to criminal sanctions, but can also be relevant to certain administrative measures if they have a punitive character. The European Court of Human Rights (ECHR) has repeatedly acknowledged that fines or monetary measures with a punitive character (‘criminal charge’) may also be included. In Germany, certain administrative measures—such as a driving ban after a criminal offense and another after a regulatory offense—are not necessarily considered double jeopardy, provided they serve different legal interests or purposes. However, if several measures are accumulated for the same facts, an impermissible double penalty may arise. The specific classification depends on the purpose, character, and severity of the measure.
What role do retrial proceedings play in connection with the prohibition of double jeopardy?
Retrial proceedings under Sections 359 et seq. StPO exceptionally permit a renewed judicial review of a final decision. This breaks through the principle of material finality, which underlies the prohibition of double jeopardy, but only under strictly defined conditions, such as new evidence or clear procedural errors. The retrial must not be understood as new prosecution in the real sense, but constitutes a controlled exception that serves truth-finding and justice. Conversely, the prohibition of double jeopardy does not protect against a retrial according to statutory provisions, since it is not a second, but a continued decision on the same act, based on new factual grounds.
