Ne bis in idem

The principle ne bis in idem ( Latin for not twice in the same [thing] ), actually bis de eadem re ne sit actio ('twice there is no court hearing in the same matter') is intended to refer to the Athenian orator Demosthenes (* 384 BC. ; † 322 BC) go back. But it was probably formulated later. Ne bis in idem describes a partial aspect of the substantive legal force: A judgment that can no longer be challenged with legal remedies finally clarifies a certain issue within the scope of the operative part . The matter may then no longer be made the subject of a new judicial decision against the person concerned. With this meaning as a repetition ban, it applies in all areas of law. Many states have restricted this principle by giving priority to material justice over formal justice under certain conditions - for example, if the perpetrator admitted later. In India and Mexico, the principle has so far been unreservedly valid as it is constitutionally secured.

For the area of criminal law, ne bis in idem as a prohibition of double punishment (more precisely: prohibition of multiple punishment) is a fundamental principle of every fair criminal process . It can be found in various forms in all modern (criminal) legal systems .

The prohibition of double punishment represents a subjective public right for the individual . The terminology is not always uniform, predominantly from ne to in idem as a basic right or in Germany at least a right equivalent to a basic right ( basic right of justice ), regulated in Art. 103 para. 3 GG. Because of its importance for the constitutional criminal procedure, the term judicial or procedural law is also used.

Regulations in Germany

Although the principle of ne bis in idem also has its meaning outside of criminal law in Germany , the term is mainly used in the context of criminal and regulatory law. It has constitutional status through the provision in Article 103, Paragraph 3 of the Basic Law.

In the area of criminal law, an accused procedural act is fundamentally finally legally assessed by a final judgment . The allegation (i.e. the facts on which the indictment is based) can no longer be used for further trials - in this respect, a criminal case has been used. For example, a perpetrator who has been finally convicted of manslaughter cannot be convicted again of murder of the same person after the proceedings have been concluded if the characteristics of the murder are not established until later. However, the principle always only applies to a specific act. It does not mean that, for example, a bank robber cannot be convicted if he later robbed the same bank again, or that someone who was innocently convicted of an act was given a “free shot” to commit the act retrospectively. This would then be a different act - not the one for which he was convicted. In regulatory offense law, the conclusion of a fine procedure is an obstacle to prosecution for a new procedure for the same offense.

According to the case law of the Federal Court of Justice, the principle ne bis in idem goes beyond a mere prohibition of double punishment. In principle, it also prohibits the same offense from being prosecuted again if an acquittal has occurred. Because it should also protect the person concerned from the existential uncertainties of a second criminal proceeding in the same matter.

Exceptions to the principle ne bis in idem are only possible in extremely limited cases, namely when a procedure is resumed . The German Code of Criminal Procedure (StPO) provides for very strict requirements - especially to the detriment of the accused (only here a violation of the ne-bis-in-idem principle comes into consideration). The non-existence of a consumption of criminal action within the meaning of Article 103, Paragraph 3 of the Basic Law ( ne bis in idem ) is an essential procedural requirement .

A distinction must be made between:

unrestricted use of criminal charges, for example
- Factual judgment on the same procedural act,
- Process judgment over the same procedural act ( § 260 para. 3 StPO), if it is assumed by an unrecoverable procedural impediment,

and

limited use of criminal charges, for example
- Discontinuation according to § 153a Section 1 Clause 5 StPO with fulfillment of conditions
- unsuccessful enforcement ,
- Rejection decision regarding the opening of proceedings ( Section 211 StPO),
- Rejection of a penalty order by the judge ( Section 408 (2) StPO),
- Refraining from persecution;
- Discontinuation according to § 153 Section 2 StPO.

As a rule, foreign judgments do not lead to the use of criminal actions, unless there are international agreements on this between the countries involved. The Schengen Agreement , in which most European countries have committed themselves to cooperation in the field of criminal law, should be mentioned here in particular.

Regulations in European criminal law

Within European criminal law, the principle of ne bis in idem is standardized in various intergovernmental agreements. The most important regulation can now be found in Article 54 of the Schengen Implementation Convention (SDÜ). However, according to Art. 55 CISA in connection with a corresponding declaration, Germany is not bound by Art. 54 CISA when ratifying if the offense on which the foreign judgment is based was committed wholly or partially in Germany.

The principle can also be found in Article 4 of the 7th Additional Protocol to the ECHR and in Article 50 of the European Charter of Fundamental Rights , which was incorporated into the Treaty for a European Constitution (there Art. II-110 EV). However, the ratification of the treaty was initially stopped after the failure of the referenda in the Netherlands and France. With the entry into force of the Lisbon Treaty on December 1, 2009, the Charter of Fundamental Rights according to Article 6 Section 1 of the Treaty on European Union applies without restriction. In addition, the ne-bis-in-idem principle is recognized in the consistent case law of the ECJ as a general unwritten legal principle of Community law.

U.S. Criminal Law Regulations

In US criminal law, no one who has been acquitted by a jury of twelve jurors can be tried again for the same offense in the same jurisdiction. In the event of an acquittal, the public prosecutor's office has no opportunity to appeal, even if the acquitted openly admits the offense. However, it must independently from one process to Bundesstaats- , that is (individual state level state ) and the federal government ( federal government ) raise indictment.

UK Criminal Law Regulations

The above rule against double jeopardy ("law against double risk") was generally applicable in Anglo-American criminal law. For centuries, Anglo-Saxon criminal law had made a judgment about material justice legally binding and meant that no new proceedings should be carried out even if evidence or even confession was proven to be the perpetrator. A second criminal charge was therefore inadmissible if she wanted to bring crimes to trial that were identical to the previously negotiated crimes in all legal and factual elements or whose elements of injustice were at least included, because then these crimes would have been tried before can ( per verdict of guilty of a lesser frankce ). This then led to the fact that in a spectacular trial, falsely acquitted for lack of evidence, perpetrators had sold their story for a lot of money to large newspapers, without having to fear a new criminal trial: Rich and famous through misjudgment, that went against the changed in the course of time general sense of justice . Over time, especially in the case of Brian Donald Hume, it was felt to be so outrageous that a new regulation corresponding more to the German regulation of § 362 StPO was also introduced in Great Britain in 1996, gradually breaking the legal force to the detriment of the wrongly acquitted. First, the public prosecutor's rights of appeal were introduced. In 1996 and 2003, the possibility of resumption to the disadvantage of a legally effective acquittal was introduced if the (partial) acquittal is based on serious procedural manipulation ( "tainted acquittal exception" ) or the act had subsequently become verifiable by new "compelling" incriminating evidence ( "new and compelling evidence exception " ). Due to the “Criminal Justice Act 2003” for England and Wales (and only to a lesser extent for Scotland and Northern Ireland), a reopening in malam partem is now also possible after a subsequent admission . The idea behind this is that if a perpetrator confesses himself, then he himself pulls the curtain that concealed the act and does not need the protection of the prohibition of double prosecution in the same matter. Now it is no longer possible to mock the judiciary and victims by making a belated confession and to earn money with it. This happened in 2006 in the R. v. Dunlop the first time following a credible confession to correct a final acquittal.

If a legally convicted person has served a sentence, he or she may not be tried again for the same crime.

literature

Martin Böse: The principle »ne bis in idem« in the European Union (Art. 54 CISA) . In: Goltdammer's Archive for Criminal Law (GA) . tape 150 , Part 2, 2003, ISSN 0017-1956 , pp. 744-763 .
Ortlieb Fliedner: The constitutional limits of multiple state punishments due to the same behavior - A contribution to the interpretation of Art. 103 Abs. 3 GG . In: AöR . tape 99 , 1974, ISSN 0003-8911 , pp. 242 ff .
Max Kaser , Karl Hackl : The Roman civil procedure law . 2nd Edition. CH Beck, Munich 1996, ISBN 3-406-40490-1 .
Roland M. Kniebühler: Transnational 'ne bis in idem' . Duncker & Humblot, Berlin 2005, ISBN 978-3-428-11900-4 .
Tilman Reichling: European dimensions of the 'ne bis in idem' principle - problems of interpretation of Article 54 of the Schengen Implementation Convention . In: Student Journal for Law (StudZR) . 2006, p. 447-469, ( digitized version ).