The principle ne bis in idem : a criminal law perspective

Abstract

The principle ne bis in idem protects the fundamental right of a person not to be twice placed in jeopardy. This principle has long been an established rule of national criminal law and can be traced in both the Civil and Common Law traditions. A study of the Maltese legislation as well as that of the United Kingdom and the United States of America, dealing with the double jeopardy principle, highlights the different approach and interpretation by the different legal traditions. The EU introduced the principle by virtue of Article 54 of the Schengen Implementation Convention of 1990. The rule has also been codified in Article 50 of the EU Charter of Fundamental Human Rights and will soon be enshrined in the Constitution of Europe. Numerous cases have given different interpretations to the rule of ne bis in idem. The landmark case of Gozutok and Briigge, 11 February 2003, set in motion the way forward towards achieving a more harmonious interpretation and recognition of the principle across Europe. The implementation of the Council Framework Decision concerning the application of the ne bis in idem principle will further strengthen judicial cooperation between the member states and most promote legal certainty. The principle ne bis in idem has been included in many International Statutes. Provisions against double jeopardy can be found in the 1998 Rome Statute establishing the International Criminal Court and in the Statutes of the ad hoe international Criminal Tribunals for the Former Yugoslavia and for Rwanda. Notwithstanding the widespread recognition of ne bis in idem as a principle of criminal law, some states have been reluctant to accept the principle as a General Principle of International Law. It is imperative that individuals are safeguarded by the principle ne bis in idem beyond national borders.