The Ne Bis in Idem Principle. The Meaning of „same Acts” in the Light of European Court of Justice Case-law Cover Image

Principiul ne bis in idem. Noţiunea de „aceeaşi faptă” în jurisprudenţa Curţii de Justiţie a Uniunii Europene
The Ne Bis in Idem Principle. The Meaning of „same Acts” in the Light of European Court of Justice Case-law

Author(s): István Szilárd Tasnádi
Subject(s): Law, Constitution, Jurisprudence, Criminal Law
Published by: Universul Juridic
Keywords: ne bis in idem principle; European Court of Justice; case law; same acts; relevant criteria; concrete set of circumstances; material criterion; legal criterion; Convention implementing the Schengen Ag

Summary/Abstract: Our findings are arises from the European Court of Justice case-law. We have analysed the most important cases to respond on this issue related to this concept.In this sense, we have discussed the Leopold Henri van Esbroeck, the Jean Leon van Straaten, the Jurgen Kretzinger, the Norma Kraaijenbrink and the Gaetano Mantello cases. It must be determinate that in all cases is questioned the applicability of Article 54 of the CISA.Hereby we will attempt to present the relevant criteria in applying the principle considering taking into account the ideas contained in the jurisprudence of ECJ.Furthermore, we will propose some interpretation ways and legislative changes. In same measure a little attention will be given to the ratione temporis application of the principle retrieved in Atricle 54 of the CISA.As we will see, the most important element required by the ‚same acts’ notion is the existence of a concrete set of circumstances that which must be inextricably linked together in time, in space and by their subject-matter, and the Court have rightly pointed out in every case that the internal classification and the protected legal interest is not a barrier in applying of Article 54 of the Convention implementing the Schengen Agreement (CISA).Regarding to the wording found in various international instruments we have noticed that they are using different terms that makes more difficult to apply the principle in the Contracting States. Therefore, Article 54 of the CISA and Article 6 of the Romanian Criminal Procedure Code are using the ‚same acts’ term, while Article 14(7) of the International Covenant on Civil and Political Rights, Article 4 of the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 50 of the Charter of Fundamental Rights of the European Union are using the ‚same offence’ term. Reported to these texts we will suggest a suitable interpretation and application mode of the term following to support this suggestion with practical applications and personal examples.To obtain a correct application of the principle, in the final part of this article we will search for responses to particular situations, such as the term usage difference between the CISA and the Charter, or what happens if in a Contracting State after penalizing a person contraventional for driving under the influence of alcohol it is established after a recalculation of blood alcohol level that the act isn’t a contravention because it’s a crime etc.

  • Issue Year: XI/2015
  • Issue No: 03
  • Page Range: 131-152
  • Page Count: 22
  • Language: Romanian