By Myron Phua*
Recent developments in the jurisprudence of both the Court of Justice of the European Union (“CJEU”) and the European Court of Human Rights (“ECtHR”) have demonstrated how international tribunals can collaboratively act to develop the international law principle of ne bis in idem to increase its clout. The ne bis in idem principle exists in Public International Law not as a monolithic rule capable of universal enforcement, but as a rule specific to the jurisdictional regime in which it operates – each differing from the others in scope and content.
The CJEU in Criminal Proceedings Against M. (C-398/12, 5 June 2014) had held, at , that ne bis in idem under Article 50 of the European Charter of Fundamental Rights had “… the same meaning and the same scope as the corresponding right” under Article 4, Protocol 7 of the European Convention of Human Rights. This enabled the Court to make two conclusions on the merits of the case in relation to the application of ne bis in idem within EU law under Article 54 Convention Implementing the Schengen Agreement (CISA).
First, the Court ruled that, referencing the position under the ECHR as established in Sergey Zolutukhin v. Russia, (no. 14939/03), a ‘non lieu’ ruling by the courts of a given EU Member State was capable of being a final decision which triggered the protection under Article 54 CISA prohibiting subsequent prosecutions in another Member State, regardless of whether “… the exceptional bringing of separate proceedings based on different evidence” remained a possibility.
Second, the Court was able to observe, citing Article 4(2) of Protocol No. 7, ECHR, that an exception existed under CISA to ne bis in idem where “… there is evidence of new or newly discovered facts”. Accordingly, whether or not there was such evidence was a question for the court of the first Member State which had previously rendered the final decision or, in M‘s situation, which had issued the non lieu.
Therefore, what in effect was being achieved by the CJEU in M was the integration of ne bis in idem norms between two discrete jurisdictions at least as far as Article 54 CISA read with Article 50 of the Charter applies in EU law. This development results in the prohibition under Article 54 CISA being more sensitively triggerable, thus making for a stronger rule favouring defendants. Indeed, the norm under CISA even may be said to have outstripped its A4P7 counterpart in terms of effectiveness, since it is capable of applying transnationally being triggerable by final decisions given in a first Member State vis-a-vis subsequent proceedings against the same individual conducted in a second Member State.
Interestingly, a phenomenon similar to that in Criminal Proceedings Against M had previously occurred in respect of the ECtHRs jurisprudence on what idem, or the same [proceedings] means; in effect, what would count as an impermissible subsequent prosecution. In Sergey Zolutukhin, the ECtHR made reference to the CJEUs jurisprudence before definitively adopting an ‘idem factum’ standard of idem’ in exclusion of an ‘idem crimen’ standard. That is to say, what counts as the same offence for which a given defendant cannot be prosecuted is to be assessed by asking not merely whether the offences were the same offences in form, but whether the subsequent offence involved the same or substantially similar facts or conduct as a previous offence. In a watershed moment, the ECtHR departed from its previous positions in cases like Oliveira v. Switzerland (No. 25711/94, 30 July 1998), which employed the ‘idem crimen’ standard, and Franz Fischer v. Austria (no. 37950/97, 29 May 2001), which propounded an intermediate same essential elements test. The Court was partly able to do so because it drew upon the CJEUs case-law on ne bis in idem under CISA in cases such as Van Esbroeck, Case C-436/04, and Kraaijenbrink, Case C-367/05, and thereby reasoned that it was only the ‘idem crimen’ standard which was broad enough to render the protection conferred by Article 4, Protocol 7 ECHR “… practical and effective, not theoretical and illusory” (see Kraaijenbrink, ).
These two episodes tell us that ne bis in idem norms should be given a broad, purposive reading in order for them to afford a defendant a sufficiently robust guarantee against double jeopardy. One cannot ascribe the phenomenon simply to the constitutional legal fact that Art 6(3) Treaty of the European Union (see Case C?617/10 Åkerberg Fransson) and the explanations to Article 50 EU Charter enable the same. Indeed, the CJEU itself, prior to the ECtHR’s sea-change in Sergey Zolutukhin, had in fact openly disavowed the relevance and applicability of the ECHR jurisprudence (see Case C-436/04, Van Esbroeck, at ). And, as Professor Peers points out, the CJEU’s resort to both the EU Charter and to the ECHR as interpretative sources for its ne bis in idem principle under CISA is unprecedented. I suggest, therefore, that such a move reflects the Court’s realisation that ne bis in idem needs to be read purposively, and thus organically, in order for it to be adequately protective against the mischief which too formalistic an interpretation (see Sergey Zolutukhin  – ) may attract.
The episodes also disclose that the ne bis in idem principle must be adequately developed, in the same ethos as the ECtHRs exegesis in Zolutukhin, along two dimensions were it to be substantively effective.
First, the ‘trigger’ by which a given ne bis in idem norm is activated and its prohibition imposed must be sensitively defined. The CJEU, in M and the cases preceding it, has been working on this front to define a ‘final decision’ as comprising events such as an extra-judicial settlement (Gözütuk and Brugge (C-187/01 and C-385/01, 13 February 2003), an acquittal for want of evidence Van Straaten (C-150/05, 28 September 2006), or a conviction in absentia which was technically enforceable Bourquain (C-297/07, 11 December 2008). Similarly, the ECtHR has developed a structured test (see Nikitin v. Russia (no. 50178/99, 20 July 2004), at ) to be applied to cases where it is less clear – e.g. a supervisory review of judicial proceedings provided for under domestic statute – whether the principle has been engaged. The Court has also displayed a tendency to look at the substance of purportedly ‘administrative’ sanctions imposed in order to discern whether they are actually ‘criminal’ (See Grande Stevens v. Italy (nos.18640/10, 18647/10, 18663/10, 18668/10 and 18698/10, at ) .
Second, the ‘scope’ of the prohibition imposed once the ne bis norm is triggered should be sufficiently broad to ensure that a defendant is properly warded against double jeopardy and not merely given a easily-circumvented veneer of formal protection. In this regard, it is telling that most international tribunals have seen it fit to adopt the ‘idem factum’ over the ‘idem crimen standard in the ethos of Zolutukhin – and it is here that the development of the EU and ECHR jurisprudence has been most in line with a purposive, normative approach. However, as Professor Lelieur rightly observes, there remains an Achilles heel consisting in that, most formulations of the principle, including the ECHR’s and that under Article 14(7) of the International Covenant on Civil and Political Rights (ICCPR) are ‘internal’ and not ‘external’: they do not apply, unlike Article 54 CISA, to decisions by the courts of other State Parties.
The absence of externality, I suggest, owes chiefly to practical, and not rational, difficulties: there is little reason why protection should end at State borders if the object of ne bis in idem is at least in part to address the objectionability of a defendant being punished twice for a single criminal act. It cannot be said that the ‘free movement of persons’ rationale underlying ne bis in idem under the EUs CISA accounts entirely for the availability of the CISA norm’s transnational applicability, since we understand the principle to be fundamentally a human rights norm providing individuals with protection against abuses of a State’s monopoly on coercive power. Nor should the status quo be justified by the idea that transnational ne bis rule would be ‘an improper mechanism for the preference of jurisdiction’, because a well-designed regime of exceptions, akin to Art 55 CISA, would arguably be able to obviate potential abuses and to give adequate rein to the countervailing idea that offenders be brought to justice.
In all, one can observe that recent developments in the ECHtR and CJEU jurisprudence have effectively resulted in a stronger ne bis in idem principle being developed. However, until international tribunals recognise that the strength of the principle turns not only on its development in a given respect, but also on its trigger and scope, the concern that it is a principle more procedural than substantive (see Sergey Zolutukhin, ) would still necessarily loom.
*Myron Phua is a JD student at Columbia University and a LLB student at Kings College London under the LLB-JD double degree programme. This post draws on research conducted as an Undergraduate Research Fellow to Dr Philippa Webb.