The Principle of Ne Bis in Idem in International Law: European Inspiration?

By Myron Phua*

European LawRecent 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 [37], 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. Continue reading

Bosnia: No Release until Retrial for War Crime Convicts

©AP/Press Association Images

Refugees from the eastern Bosnian enclave of Srebrenica wait for transportation on 12 July 1995 ©AP/Press Association Images

Bosnia’s constitutional court has ruled against the further release of war crimes convicts whose verdicts were quashed for misuse of criminal provisions. More than 20 war crimes cases were found to be invalid as it was ruled that the Bosnian criminal code was wrongly used at their trials, instead of the Yugoslav criminal code, which was in force at the time that the crimes were committed.

The retrials were ordered by the Bosnian Court after the European Court of Human Rights (ECtHR) in Strasbourg ruled in July 2013 that the Bosnian court used the wrong criminal code in Maktouf and Damjanovic. Following the ECtHR decision, several appeals were filed to the constitutional court, leading to the controversial release of convicts. Novak Djukic, one of these convicts originally sentenced to 20 years in prison for ordering an artillery strike on the town of Tuzla that killed 71 people, shortly absconded to Serbia after his release, therefore eluding from retrial.

As a result, the Bosnian court decided to block further release until retrials are completed, including the ones of Milorad Trbić, convicted of involvement in the Srebrenica genocide, and Ante Kovac, jailed for war crimes in Vitez in 1993.

Meddzida Kreso, the president of the Bosnian court, stated that the quashing of these verdicts was the biggest challenge for her institution over the past year because “the legal framework for the execution of imprisonment sentences and custody measures ceased to exist in the case of persons who were sentenced for the gravest violations of the international humanitarian laws”.

Event: “Conflicts between Human Rights”

The Human Rights Centre of Ghent University is organizing a symposium on “(How) Should the European Court of Human Rights Resolve Conflicts between Human Rights?”

Date: 16 October 2014gent

Venue: Human Rights Center, Ghent University, Convention Center Het Pand (Zaal Rector Vermeylen), Onderbergen 1, Ghent, Belgium.

The Symposium aims to evaluate the legal reasoning of the European Court of Human Rights in conflicting rights cases and to propose novel methodological tools and frameworks for the judicial resolution of conflicts between human rights in the context of the European Convention on Human Rights.

In order to tackle these challenges, a number of renowned scholars have been invited to present their views on how (specific) conflicts between human rights ought to be resolved. First, a small number of scholars will set the stage for the debate by outlining their general approaches, frameworks and tests for the judicial resolution of conflicts between human rights in the ECHR context. Following these general presentations, a larger number of panels will address specific types of conflicts. To ensure productive and spirited debate, the participants in the specific panels have been asked to present their views on how certain pre-selected ECtHR cases should be (or should have been) resolved.

In order to increase the practical relevance of the Symposium and to offer the speakers useful feedback on the practicality of their advocated approaches, a number of (former) ECtHR Judges have been invited to comment on the practicality and feasibility of the proposed approaches.

Download the full programme here.

Registration: If you would like to attend the event, please register before 10 October 2014 by sending an e-mail to the attention of Stijn Smet.