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

EU and US Object to Republika Srpska Justice Referendum

Yesterday, the Delegation of the European Union (EU) to Bosnia and Herzegovina, joined by the U.S. Ambassador, met with the authorities of the Republika Srpska to share their concerns about the planned referendum on the State-level judicial institutions.

BiH Map

As set up by the Dayton accord, Bosnia and Herzegovina is separated into two entities: a Bosniak-Croat Federation of Bosnia and Hercegovina, and the Bosnian Serb Republic, or Republika Srpska, each with its own president, government, parliament, police and other bodies. In line with its preparation for accession to the EU, the Structure Dialogue on Justice was established in 2011 by the European Commission. The mechanism aims to advance structured relations on the rule of law with potential candidate countries, even prior to the entry into force of the Stabilisation and Association Agreement (SAA) and has been assisting Bosnia and Herzegovina to consolidate an independent, effective, efficient and professional judicial system.

In this context, the EU fears that the organization of a referendum would undermine the sovereignty and stability of Bosnia and Herzegovina, representing “an unconstitutional attempt not to reform but to undermine and weaken those authorities, and would thus pose a direct threat to the sovereignty and security of the country as a whole.” Would the referendum be organized, it would question the ability of Bosnia and Herzegovina to adopt legal binding agreements, such as EU instruments, and to have them respected. For the EU, such a referendum would therefore “seriously harm this country’s EU accession path”.