Factor: Docente

There are four main aspects to the scope of application of thene bis in idem principle: the objective and subjective scope of application of the principle, and the scope of application of the principleratione materiaeandratione tem- poris. These four aspects will be explored in general terms in the following paragraphs.

2.5.1 Limitations to the objective scope of application of the principle As is well known, the application of thene bis in idemprinciple is traditionally limited to situations within one and the same state. As a matter of state sover- eignty, criminal behaviour affecting different states has always been regarded as a set of independent offences in each of those states.111 _{Applying thene}

bis in idemprinciple between states requires those states to recognise foreign judicial decisions which have becomeres iudicataas an obstacle to their own criminal law enforcement, something which is commonly referred to as the ‘negative effect’ ofres iudicata.112_{Overall, the main limitation to the objective}

scope of application of thene bis in idemprinciple is therefore the fact that the principle is rarely applied between states as a result of the unwillingness of states to recognize the negative effect of foreignres iudicata.113

Van der Wilt identifies three main reasons why states are generally re- luctant to recognise this negative effect of foreign res iudicata. Firstly, this requires a high degree of confidence in the other states. Secondly, “self-interest” may incite states to reconsider criminal prosecution, especially so if the crime was committed on their own territory or affects their own national interests. Thirdly, thene bis in idem principle itself varies significantly from state to state.114

The scope of application of thene bis in idemprinciple in the international sphere therefore depends primarily on its inclusion in international instru- ments, and the scope of application of the principle is thereforein principle limited to situations within one and the same state, but there are some ex- ceptions.

111 De la Cuesta 2002, p. 707. An exception is Article 68(2) of the Dutch penal code (Wetboek

van Strafrecht), which applies to any earlier prosecution, in any (foreign) jurisdiction. Case

law based on this provision is very scarce. Article 76(2) of the Indonesian Penal Code (Kitab

Undang-Undang Hukum Pidana) is based on this provision, but reads slightly differently, due to differences between the languages. All text books however agree that, similarly to Article 68(2) of the Dutch penal code, Article 76(2) of the Indonesian penal code applies toforeignjudgments. No case law is known to exist on this provision.

112 Van der Wilt 2005, p. 100. 113 Van der Wilt 2005, p. 100. 114 Van der Wilt 2005, p. 100.

The first exception is that theres iudicataeffect of foreign judgment is “more generally respected when it comes to exercising extraterritorial juris- diction”.115 _{The reason for this is that, although by now common practice}

in international criminal law, the exercise ofextraterritorialjurisdiction is still regarded as an exception to the notion that criminal jurisdiction is essentially territorialin nature. Several states therefore consider that primacy should be given to the outcome of the proceedings in the state, where the offence actually took place (principle of territoriality).116_{Other states however do not provide}

for the possibility of the recognition of foreignres iudicataat all, regardless of thelocusof the offence.117

The second exception is that foreign judgments can be invoked as a (mandatory or voluntary) ground for refusal to cooperate under a number of instruments establishing cooperation in criminal matters between states.118

Of these, Article 3 section 2 of the Framework Decision on the European Arrest Warrant (“FDEAW”)119 _{is the most important example within theEU. In the}

context of international cooperation, the application of the principle varies from one agreement to the next.120

From all this it appears that, although little can be said in general about the objective scope of application of thene bis in idemprinciple on the inter- national level, there is a link between the scope of application of the principle, and the primarily territorial nature of criminal law jurisdiction. The reason for this is that the international non-application of thene bis in idemprinciple is considered to be especially problematic in view of an increasing willingness on the part of states to assume extraterritorial jurisdiction in criminal cases. In theory, if all states would agree to refrain categorically from assuming extraterritorial jurisdiction in criminal cases, the general international non- application of the principle would not necessarily be much of a problem

115 Van de Wyngaert & Stessens 1999, p. 784. 116 In particular Belgium and The Netherlands.

117 Van de Wyngaert & Stessens 1999, p. 784. Belgian law for example recognises foreignres

iudicataif the offence took place abroad, but not if it took place “within Belgium”. The authors note however that this protection is in practice sometimes circumvented by mis-

construing thelocusof the offence (!). Germany and Italy do not recognise foreignres iudicata

regardless of where the actual offence took place (therefore regardless of whether criminal law jurisdiction is territorial or extraterritorial in nature). Other states such as France do

recognise foreignres iudicatain some types of situations in which France could claim

(extraterritorial) jurisdiction, and not in others, for instance where it concerns a French citizen.

118 Several examples of agreements containing ane bis in idemrule as a ground for refusal

to cooperate with other states in criminal matters have been listed in paragraph 2.2.1 (above).

119 Council Framework Decision 584/2002 of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJ 2002, L 190/1.

anymore, as each case would only be tried only once, within the territory where it took place.

2.5.2 Internationalisation and ‘territoriality’

Could this mean that the concept of (extra)territoriality could form the key to solving the problem of multiple prosecutions in international situations? In my opinion, the answer must probably be: no. Extraterritorial jurisdiction should be seen as aresponseto the underlying problem of internationalisation, rather than as the problem itself. This deserves some further explanation.

As Huet & Koering Joulin have argued, the concept of the “territoriality” of criminal law is a “fausse notion claire”, and one that is increasingly frequently used.121 _{The term is subject to two assumptions: that of ‘substantive}

territoriality’ and that of ‘formal territoriality’. In the substantive sense, a law can be seen as “territorial” if it is linked to aplaceas opposed to the nationality of aperson.In the formal sense, a law can be seen as “territorial” because its application is exclusively reserved for the authorities of the State which adopted that law. In the latter sense, “territoriality” is synonymous to the principle oflex fori. Contrary to private law (which can be applied by the judiciary of another state), criminal and administrative law are therefore “territorial” in the formal sense: they may be applied exclusively by the author- ities and courts of the state which adopted those laws.122

On the international level, it is thesubstantive notionof territoriality which is relevant from the viewpoint of thene bis in idemprinciple. The problem is that, in today’s global society, this substantive notion of territoriality in criminal law has lost much of its meaning. To give some examples: it is often difficult or impossible to pinpoint one singlelocuswhere offences are concerned which involve the internet. Offences such as smuggling form another example of offences which can be territorially linked to two or more different states. Moreover, within an area without borders such as the EU, concepts such as “import” and “export” of illegal substances have effectively lost their meaning altogether.123 _{What this illustrates is that the internationalisation of society}

undermines theusefulnessof the principle of territoriality as a guiding principle for the application of criminal law, potentially leading to “negative” jurisdiction conflicts: situations in which offences are not prosecuted anywhere, because there is no clear ‘territorial’ link to any one state as a result of the international nature of the offence. It is in response to such development that extraterritorial criminal jurisdiction is increasingly relied on by states.

121 Huet & Koering Joulin 2005, p. 200. 122 Huet & Koering Joulin 2005, p. 201.

123 See cases C-436/04,Léopold Henri van Esbroeck[2006] ECR I-2333 and C-150/05Van Straaten

It follows that, as regards the issue of the international (non-) application of thene bis in idemprinciple, the territorial nature of criminal law jurisdiction does not provide a possible solution, but rather forms a response to the under- lying problem of internationalisation.

2.5.3 Subjective scope of application

Contrary to the objective scope of application of the principle, its subjective application scope (the answer to the question who can rely on thene bis in idemprinciple) is rather straight-forward: only someone who has actually been subjected to a previous prosecution (and who has been finally acquitted or convicted, or has had his trial finally disposed of in another fashion) can rely on the principle. Trechsel remarks that it is “rather obvious” that if several persons have been involved in the same criminal activities, but only one of them has been faced prosecution and trial, only that person will benefit from the protection offered by the principle.124

In many states, legal entities can be prosecuted for certain offences under criminal law, whereas in others only natural persons can be tried before a criminal court. In those states where undertakings can be prosecuted under criminal law, the criminal liability of the legal entity is normally regarded as one that is distinct from that of its’ executives or employees, for the application of the ne bis in idem principle. Although the actual historical offence can evidently only be committed by natural persons, the legal entity therefore counts as aseparate culpable subject. If one accepts the possibility of criminal liability for legal entities, no other approach would produce the desired result (that of enhanced deterrence), as the criminal charge would simply ‘shift’ from the executives or employees to the legal entity or vice versa, precisely because of the application of thene bis in idemprinciple.

Another question is whether several legal entities, belonging to the same groupcan be held separately (criminally) liable. In as far as is known, nothing has (so far) been published on this issue in this particular connection. In my opinion, it must be assumed that the answer to this question will depend on the extent to which the undertakings concerned are able to actindependently from each other.

2.5.4 Scope of application of the provisionsratione materiae

Whilst in most legal traditions thene bis in idem rule applies exclusively in the field of criminal law,125_{it is increasingly difficult to maintain that a clear}

distinction between administrative law and criminal law in general can be made.126_{Huet and Koering Joulin argue that there is no longer any difference}

in the nature of administrative and criminal law sanctions, “both having the same repressive finality”.127_{In many instances the only distinction between}

criminal sanctions and administrative sanctions relates to the nature of the public body or agency which rendered it (the public prosecutor, or any ad- ministrative body). Even such an ‘organic’ distinction is not absolute. In some Member States, government agencies exist which are empowered to impose sanctions ofbotha criminal and an administrative law nature.

As discussed in para. 2.3.3 of this study, the term “criminal proceedings” in Article 4 Protocol 7 ECHR corresponds to the term “criminal charge” in Article 6ECHR, which is interpreted autonomously by theECtHRon the basis of a threefold test, and may apply to proceedings of any nature.128 _{As a}

result, the principle ofne bis in idemis gradually extending into new areas of the law, in particular administrative law.129 _{Some of the Member States}

of the Council of Europe have taken measures to ensure the coordination and concentration of the prosecution within one set of proceedings, in order to comply with theECtHR’s case law on Article 4P7ECHR.130

It their case law, the Community courts have consistently held that the ne bis in idemprinciple applies inECcompetition law, a field of law which is enforced by means of administrative law.131 _{The fact that the procedural}

125 One exception is the double jeopardy clause in the Fifth Amendment of the Constitution of the United States, which may also apply in administrative law proceedings. 126 Huet & Koering-Joulin 2005, p. 60.

127 Huet & Koering-Joulin 2005.

128 ECtHR,Jussila v. Finland23 November 2006 (App. No. 73053/01); see also Bartsch 2004.

129 Van der Wilt 2005, p. 107; Trechsel 2005, p. 387. This is one of the main reasons why several states have not ratified the7th Protocol.

130 De la Cuesta 2004, p. 712. Although it has not ratified the 7th_{protocol, The Netherlands}

have for example introduced the principle of “una via” in its system of national law, forcing

the authorities to choose between criminal and administrative law proceedings. 131Walt Wilhelm(Case 14-68Walt Wilhelm and others v Bundeskartellamt[1969] ECR 1) and

Boehringer(Case 7/72Boehringer MannheimvCommission[1972] ECR 1281) are generally

considered as the first judgments in which thene bis in idemprinciple was applied in EC

competition law, although the judgment of the CFI inPVC, Joined Cases T-305/94, T-306/94,

T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94

and T-335/94PVC[1999] ECR II-9931, is actually the first judgment in which the application

regulations132 _{stipulate that fines in competition cases ‘shall not be of a}

criminal law nature’ has not changed this.133

Therefore, although most states still view criminal law and other areas of law as being separate and distinct for the application of thene bis in idem principle, there is a clear willingness on the part of the Community courts and theECtHRto accept that legal principles such as that ofne bis in idemalso apply to administrative penalties.134

It would appear that there are good grounds for this. A rigid distinction between administrative law and criminal law for the application of legal principles such as that ofne bis in idemwould make it possible for the Member States of the Council of Europe to circumvent the guarantees laid down in theECHR, by ‘shifting’ certain offences from the realm of criminal law to that of administrative law.

Furthermore, theEUdoes not have a system of criminal law as it is tradi- tionally understood on the national level. If the Community courts would consider that certain fundamental rights apply exclusively in the field of criminal law, this would mean that the protection of those fundamental rights would be cancelled out on theEUlevel.

2.6 ELEMENTS

By establishing a legal connection between a first and a second trial on the basis of the same facts, the prohibition of double prosecution raises two basic questions: when is there asecond trial, and when are the factsthe same? These two questions correspond to the two elements of thene bis in idemprinciple: bisand idem. Although both elements raise a number of questions on the international level, it is the answer to the second question that poses the most fundamental problems.

2.6.1 The first trial:bis

As mentioned before (paragraph 2.3.4, above), the rule of law requires the state which has initiated proceedings against one of its subjects to respect the

132 Council Regulation (EEC) No 17/62 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty [1962] OJ 13/204 and Council Regulation (EC) No 1/2003 of 16 December2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1.

133 Nor has the general question whether principles of criminal law such as thene bis in idem

principle may find their application in the field of EC competition law received any specific attention in any of the Court’s judgments. The Court therefore appears to accept this as self-evident.

outcome of those proceedings.135 _{The ne bis in idem principle upholds the}

respect for the finality ofres iudicata, in the interest of the legitimacy of the State.136_{It follows from this, as well as from the principle’s purpose of pro-}

moting legal certainty, that the outcome of the first proceedings must have become final (res iudicata), in order to have the effect of barring a second prosecution (bis).

Within national systems of law, the national rules governing the finality of judicial decisions are decisive for the application ofne bis in idem. On the international level the finality of judgments and other decisions may pose something of a problem, as very few states recognise foreignres iudicatain general,and national rules of criminal procedure may vary on the point of the finality of judicial decisions. In some states, for example, only theoperative part of a judgment acquires finality (and the considerations do not), whereas in others the entire text of judgments eventually acquires the force of res iudicata.

In general, it could be said that a judicial decision isfinalwhen there is no possibility of appeal.137 _{There is no possibility of appeal where such is}

not provided for by national law, where all appeals have been exhausted, where the time limits for filing an appeal have expired (and no appeal was brought), where the appeal was withdrawn, or the right to appeal was waived.138 _{In some states, certain extraordinary judicial remedies (such as}

“review”) are available, outside of the normal system of appeals. Such (rare) possibilities typically don’t influence the finality of judicial decisions, and are not covered by thene bis in idemprinciple.

As mentioned before, in most states thene bis in idem principle applies exclusively in criminal law proceedings. Only final decisions of acriminalcourt (as well as settlements in criminal cases) are therefore considered as final, and havingne bis in idem-effect.139_{The question of the finality of the first judgment}

or decision therefore ties in with the scope of applicationratione materiaeof the principle within national systems of law.

Articles 14(7)ICCPRand 4P7ECHRrequire that the first set of proceedings have to end in afinal acquittalorconvictionof the subject. Article 54CISAmore broadly requires that the subjects’ trial was “finally disposed of”. Trechsel argues that, for the application of Article 4P7ECHRand 14(7)ICCPR, thefinal