chapter  12
12 Pages

Double jeopardy in Europe: what lessons for global players?: Dawn Sedman

ByDAWN SEDMAN

Double jeopardy, the principle of ne bis in idem, is understood as the principle that no person should be tried twice for the same offence.1 Under what kind of circumstances would a potential infraction of double jeopardy arise? To take as an example the factual situation that is common to a number of cases before the European Court of Justice (ECJ): an individual transports illicit drugs from one Member State of the EU to another and in the act of doing so he commits a crime under the first country’s jurisdiction whilst exporting, and a crime under second country’s jurisdiction whilst importing. The possibility therefore of two prosecutions within two jurisdictions occurs, but the question arises: whilst indubitably two crimes have been committed, there has been only one act and therefore it is argued – under human rights law – that the prosecution of the second criminal offence would amount to a repetitious trial (a finding of guilt or innocence on the same set of facts) and therefore a violation of the ne bis in idem principle. A second scenario commonly found before the European Court of Human Rights (ECtHR) concerns an individual who has been caught speeding or drink-driving and is convicted of both a criminal offence and a civil offence applicable to the same set of facts and is penalized by both a criminal court and a tribunal. In both these scenarios two prosecutions – whether by two states’ prosecutors or two judicial processes within one state – could occur concurrently or sequentially; but the question is should they, when mindful of the principle of ne bis in idem?