A Reasoned Approach to Prohibiting the Bis in Idem

• Date: 24 January 2022
• Year: 2022
• Author: Pierpaolo Rossi-Maccanico LL.M.
• Pages: 72
• DOI: https://doi.org/10.30709/eucrim-2021-032

I. Background

In the EU, the application of the ne bis in idem principle protecting defendants from double criminal proceedings has never been more confusing. National judicial and administrative authorities competent to enforce criminal, competition, tax, or other offences are increasingly confronted with legal uncertainties as to whether it is legitimate for them to pursue penalty proceedings in parallel with each other, both domesticly and across borders, for the same acts or for acts that are partially congruent. As an established general principle of law, ne bis in idem restricts their ability to prosecute or punish the same offence more than once if it can be qualified as “criminal“.¹ The aim of the principle is essentially procedural as it is to prohibit the repetition of criminal proceedings after a first acquittal or conviction. However, it also has repercussions on substantive criminal law as it may preclude duplicate punishments for the same acts, even if they qualify as multiple offences, when pursued in succession.

As far as the EU is concerned, the ne bis in idem principle is enshrined in Art. 50 of the Charter of Fundamental Rights (CFR),² proclaimed on 7 December 2000 in Nizza, and now attached to the Treaty of Lisbon. The ne bis in idem guarantee under the CFR has the purpose of bringing clarity to the right established in different forms in the various EU Member States as it is intended to cover cross-border situations.

Prior to the CFR, the ne bis in idem principle was included in Art. 4 of Protocol No 7 to the European Convention on Human Rights (ECHR), signed on 22 November 1984 by the Contracting States.³ Art. 4 of Protocol No 7 to the ECHR only applies internally within the individual Contracting States but is nevertheless relevant for interpreting the ne bis in idem principle at the EU level, considering that Art. 52(3) CFR states:

[i]n so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention.

The European Courts (i.e., the Court of Justice of the EU(CJEU) and the European Court of Human Rights (ECtHR)) have traditionally given similar interpretations of the principle, since they both agreed that it prohibits the undue cumulation of proceedings of the same kind, namely criminal, for the same offence.

Hence, the CJEU followed the ECtHR case law whenever the criminal nature of an offence had to be determined. As the ECtHR held in Engel,⁴ this determination needs to consider not only the classification of the legal provision in domestic law (nomen juris) but also the punitive and deterrent nature and the degree of severity of the penalties that may be imposed under the law for the offence.

The judicial assimilation of administrative penalties into criminal ones irrespective of the legal classification has caused an array of concurring administrative and criminal penalties and of successive administrative and criminal proceedings against the same defendant for substantially the same misconduct; normatively, the offences could be qualified to constitute different offences, but materially they were the same. Hence, the question was whether such cases concerned an idem.

Moreover, in accordance with Art. 50 CFR, the ne bis in idem protection also applies between the jurisdictions of several Member States.⁵ This corresponds to the EU law acquis as it resulted from Art. 54 of the Convention Implementing the Schengen Agreement (CISA),⁶ Art. 7 of the Convention on the protection of the financial interests of the Communities,⁷ and Art. 10 of the Convention on the fight against corruption.⁸

As regards the application of the principle within the same Member State (purely domestic situations), the guaranteed right in Art. 50 CFR has the same meaning and the same scope as the corresponding right in the ECHR as referred to by Art. 4 of Protocol No 7.

Whereas the principle is worded as an absolute right under the ECHR, Art. 50 CFR entails that it can be subject to exceptions covered by the horizontal clause in Art 52(1) CFR laying down the conditions for limitations on the exercise of the rights and freedoms recognised by the Charter. In other words, ne bis in idem, as guaranteed in Art. 50 CFR, entails that a person cannot be judged again for acts for which he or she was already finally acquitted or convicted, except if such acts do not constitute the same offence (idem) or if authorised by a law that maintains certain conditions.⁹

In the two judgments of 20 March 2018 in Menci¹⁰ and Garlsson,¹¹ the CJEU specified the conditions the concerned national legislations must meet to cumulate administrative and criminal penalties in successive proceedings, and thus to limit the right not to be punished twice under Art. 50 CFR in accordance with Art. 52(1) CFR.

The Menci case concerned duplicate criminal proceedings preceded by administrative penalty proceedings (with a criminal nature) for the same non-payment of VAT; the CJEU notoriously held that, under the escape clause of Art. 52(1) CFR, a limitation of the ne bis in idem principle due to the second prosecution was justified

for the purpose of achieving … complementary aims relating, as the case may be, to different aspects of the same unlawful conduct at issue.¹²

The CJEU further concluded that the cumulative punishments met an objective of general interest, and that the national laws at issue providing for two distinct prosecutions contained rules ensuring that the duplicate administrative/criminal proceedings would only lead to cumulative punishments where strictly necessary and proportionate.¹³ This followed an attentive review of the relevant national provisions, and, subject to the confirmation by the referring court, the CJEU concluded that the double penalty proceedings system applicable in Italy in that case could be considered proportionate and did not go beyond what was strictly necessary to sanction the same VAT non-payment.

However, the Garlsson case, which concerned a similar constellation of a cumulation of an administrative fine for market abuse following a criminal detention penalty for the same acts, gave rise to unjustified ne bis in idem because the CJEU noted that the previous conviction was taken into account only if it consisted in a prior criminal fine. The CJEU found that, under the legislation at issue, the mitigation of penalties under the national legislation at stake appeared

solely to apply to the duplication of pecuniary penalties and not to the duplication of an administrative fine of a criminal nature and a term of imprisonment.

For this reason the Court concluded that the double proceedings were contrary to the principle of proportionality. The CJEU found that this legislation

does not guarantee that the severity of all of the penalties imposed are limited to what is strictly necessary in relation to the seriousness of the offence concerned.¹⁴

Hence, the CJEU concluded in Garlsson that the legislation at issue did not fulfil the obligation for competent authorities, in the event that a second penalty was imposed, to ensure that

the severity of the sum of all of the penalties imposed does not exceed the seriousness of the offence identified.¹⁵

Such discordant judgments give rise to uncertainty about when the limitations of the ne bis in idem protection in case of successive punitive proceedings brought separately are acceptable. The reason is that the CJEU acknowledges that cumulative penalties can in principle be applied for concurring offences in different proceedings. However, a violation of the double jeopardy prohibition can only be justified if the second proceedings serve complementary purposes and the concerned person’s burden for defence is limited to the necessary minimum. This, in turn, is only possible if the two distinct proceedings show a sufficiently close connection, both in substance and in time – an antinomy that is difficult to attain in practice.

The uncertainty concerns the existence of concurring penalties and, therefore, the idem concept. More precisely, the question is notably whether the notion of ”same offence” should correspond to “same criminally punishable conduct”, which requires a triple identity: of the offender, the material facts (idem factum), and the protected legal interests (idem crimen), and not a double identity of the offender and the material acts. In that respect, both the ECtHR and the CJEU have developed diverging case laws on the notion of idem, which I will address in the following section.

II. The Equivocal Case Law of the ECtHR and the CJEU on the Idem Concept

As regards the interpretation of the idem concept, the ECtHR developed a vast jurisprudence on the duplication of administrative penalties of a criminal nature and proper criminal penalties. Considering the scope of the ne bis in idem guarantee in Protocol No 7 to the ECHR, these cases concerned the same national legal order. The traditional interpretation of idem was based on the triple identity test including the requirement of idem crimen. This entailed that the same conduct could legitimately produce a combination of separate administrative/criminal proceedings that, due to their distinct legal qualifications, are separate offences.¹⁶

A turning point was the ECtHR’s Grand Chamber judgment in Zolotukhin.¹⁷ The judges in Strasbourg had to deal with a duplication of penalty proceedings, including a first set of disciplinary proceedings, which were qualified as criminal under the Engel criteria, followed by a second set of proper criminal proceedings – all based on the same acts of indiscipline.¹⁸ The ECtHR made the examination of the identity of the offences subject to a test of their essential elements rather than their legal qualifications. It concluded that the idem crimen approach...