Marco Conceptual

2.4.1 The question of the principle’s origins in Roman law

Although there are considerable differences between the legal traditions of states on the point of thene bis in idemprinciple and its underlyingrationale, it is generally assumed they all share common origins in Roman law. This does not provide any indication why it is, that so many differences nevertheless exist between the states on this point.

It is perhaps worth noting that there actually appears to be little or no hard evidence to support the notion that all of the ne bis in idem provisions in existence in national systems of law actually do have common origins; there is no comprehensive historical research available on this point. It is therefore also possible that, in some cases, it actually concerns legal principles with different origins which have developed in a similar direction and have been labelled “ne bis in idem” at a later time. What is commonly referred to as “ne bis in idem” may therefore actually form an open category of legal rules and principles, which have more in common than that they all establish a legal link between a first and a second set of proceedings (on the basis of the same acts, facts, or offences) by barring a second prosecution, trial, or penalty, or by laying down certain conditions for the second trial (although in many, if not most cases, common origins probably do exist). This could perhaps also explain the some of the differences. It is therefore conceivable that some of the different existing expressions of the ne bis in idem rule are essentially ‘neighbouring principles’, instead of different versions of one and the same legal rule. This could offer at least a partial explanation for the many differ- ences which exist betweenne bis in idemrules in the legal systems of states.

2.4.2 Ne bis in idemrules

A number of different basic “versions” of the principle are known to exist. Each “version” corresponds to a different interpretation of thene bis in idem principle. The full expression is “bis de eadem re ne sit actio”; it reveals the origins of the principle in theactioin Roman (civil) law. Another version of this full expression is: “bis de eadem re agree non licet”. In Roman private law, the initiation of proceedings (“litis contestatio”) had several, far-reaching legal consequences. Firstly, the parties were bound by the outcome, and secondly, thelitis contestatio“consumed” the claim, whereby it becameres in iudicium deducta, not susceptible to a secondactiooriudicium.

In continental Europe, the adage “ne(or: non)bis in idem”91_{is the most}

commonly used expression of the prohibition. Some other rules and adage which are regarded as belonging to the “ne bis in idem-family are “res iudicata” (the rule that a judgment acquires finality, except for the possibility of appeal), “double jeopardy” (the rule in Anglo-American law that corresponds tone bis in idem), “autrefois acquit”92 _{(the adage that any earlier acquittal bars a}

second prosecution) and “autrefois convict” (the adage that any earlierconviction bars a second prosecution), “la chose jugée au criminal sur le criminel” anduna via93_{(the rule that all charges brought against a defendant on the basis of}

the same conduct should be concentrated in one set of proceedings). It is worth noting that each of these ‘versions’ of the principle are really different legal rules.

An important distinction is that between the prohibition of double pro- secution, and the prohibition of double punishment.94 _{The former is a pro-}

cedural rule; it stands in the way of a secondprosecution. The latter rule is substantiverather than procedural in nature; it prevents a subject from being punishedtwice.95_{Contrary to what one might perhaps expect, the procedural}

rule offers more protection for the individual than the substantive one. These two rules will be further discussed in the following paragraphs.

2.4.2.1 Prohibition of double prosecution (“Erledigungsprinzip”)

The adage “nemo debet bis vexari”, “bis de eadem re ne sit actio”, and the abbrevi- ation “ne bis in idem” can all be seen as different expressions of the prohibition of double prosecution.96_{In German this rule is known as the Erledigungs-}

prinzip. The term “Erledigungsprinzip” derives from the notion that the claim to prosecute (ius puniendi) that results from a criminal act isconsumedorreleased

91 The term “non” is commonly used alongside “ne”. This raises the question which of the

two is (more) accurate. In the full expression “bis de eadem re ne sit actio”, of which the

expression “ne bis in idem” is thought to be an abbreviation, the verb (“esse”) is in the form of a coniunctivus(“sit”). Aconiunctivuscan not be accompanied by “non” in the same

sentence.Ne bis in idemis therefore the accurate expression. According to Dr. H. Vroom’s

authoritative handbook on Latin grammar: “a prohibitioncan not be expressed by an

imperativus I(the simple form used for an order or command construed in the second person, see para. 269 of the same book) combined with a negation, but should be construed

in the following manner:nedicamus;nolidicere;nolitedicere; (etc.) (Vroom 1949 at para.

240; translation from Dutch by the author).

92 Of which Article 368 of the French code of criminal procedure forms an example. See: Dessard 2005, pp. 913-916.

93 The Netherlands.

94 The terms “ne bis in idem”, “prohibition of double punishment”, and “prohibition of double

prosecution” are often used interchangeably; Schomburg 2005, p. 941. 95 De la Cuesta 2002, p. 710.

96 Van der Wilt 2005, p. 99; Van der Beken, Vermeulen, & Ongena 2002, p. 812; Trechsel 2005, p. 382.

(literally: ‘used up’ or ‘emptied’)97_{by the initiation of the first prosecution.}98

A second prosecution is thereby generally rendered inadmissible, but some exceptions typically exist in national law in case of new evidence, a mistrial, or other defects in the first proceedings.

TheErledigungsprinzipor: prohibition of double prosecution bars any second set of proceedings once the outcome of the first proceedings has become final. It does not, in principle, preclude the possibility of several penalties being imposed on the subject on the basis of the same conduct, as long as those penalties are imposedwithin one and the same set of proceedings. TheErledigungs- prinzipthereforeonlyoffers protection against the accumulation of penalties, imposed in respect of the same conduct, if the imposition of those penalties would otherwise have taken place in the course of asecondset of proceedings. Contrary to the prohibition of double punishment, theErledigungsprinzipis directly linked to the respect forres iudicata (pro veritate habitur): it is the need to respect thefinalityof the first trial which leads directly to theinadmissibility of the second one.

TheErledigungsprinzipis by far more common among the legal systems of the Member States than the prohibition of double punishment, although in many casesne bis in idemrules in national law reveal some characteristics of both principles, either in their wording or in the way that they are applied in practice. In systems of law which adhere (primarily) to the Erledigungs- prinzip, the prohibition of double prosecution usuallytakes precedenceover the prohibition of double punishment. What this means in practice is that “in those exceptional cases where the opening of a new prosecution is not blocked by the previous final decision,ne bis in idemworks to impede a double punish- ment.”99

2.4.2.2 Prohibition of double punishment

The adagenemo debet bis puniri pro uno (delicto)expresses the prohibition of doublepunishment, known in German asAnrechnungsprinzip. In the English language, theAnrechnungsprinzip is usually referred to as the “accounting principle” or the principle of “set-off”.100 _{This rule stipulates that any pre-}

viouspenaltymust be taken into account when imposed a subsequent penalty, without however having the effect of barring a second prosecution.101

97 ‘Erledigung’

98 See above, para. 2.4.2; see also Van den Wyngaert & Stessens 1999, p. 781. 99 De la Cuesta 2004, p. 714.

100 Also known as the principle of “deduction”, or: the principle of “taking into account”.

101 It would appear that an example of theAnrechnungsprinzipis found in Article 103 of the

GermanGrundgesetz für die Bundesrepublik Deutschland( “GG”) (the Constitution for the

Federal Republic of Germany). However, the wording of Article 103 (3) GG is unanimously

TheAnrechnungsprinzipexists in various different forms in national systems of law. In most legal systems, the Anrechnungsprinzip does not necessarily preclude the possibility that a second penalty is imposed for the same conduct in the event that a single act (concursus idealis) or a course of action (concursus realis) constitutes multiple offences under the law, but only stipulates that any other penalties imposed must be deducted. As such, theAnrechnungsprinzip can take on the form of a summary rule of procedure, stipulating that only the highest penalty imposed is enforced against the subject. TheAnrechnungs- prinzipmay therefore take on the form of a rule which applies to anysecond imposition of a penalty, but also exists in national systems of criminal law as a rule which applies within one and the same set of proceedings.

TheAnrechnungsprinzip is often considered to be the “lesser” of the two version of thene bis in idemprinciple, offering less legal certainty, and pro- viding only a limited incentive for coordination and procedural efficiency. In a number of national systems of law, theAnrechnungsprinzipis not regarded as ane bis in idemguarantee, but as rule which derives from general principles of the proper administration of justice.

Contrary to theErledigungsprinzip, the respect forres iudicatais not amongst therationaleunderlying theAnrechnungsprinzip, because thefinalityof the first conviction is not upheld by it.

2.4.2.3 The problem of defining the substance of the guarantee

It follows from the above that theErledigungsprinzipand theAnrechnungsprinzip form two different legal rules, although there is some overlap. This can be illustrated as follows:

In this diagram, theAnrechnungsprinzip(A) and theErledigungsprinzip(E) are shown as two, partially overlapping circles. The overlap exists because the prohibition of double prosecution also protects against double punishment, if the second penalty would have been resulted from the second set of proceed- ings. TheErledigungsprinzipdoes not protect against double punishment within one and the same procedure (circle A, minus the area of overlap); theAnrech-

See also Article 51 par. 3 of the GermanStafgesetzbuch(criminal code) (Schomburg 2004,

p. 942).

E A

nungsprinzipdoes not protect against a second prosecution (circle E, minus the overlap). The area of overlap therefore represents the transition from the first proceedings to the second proceedings.

TheAnrechnungsprinzipand theErledigungsprinzipnot only differ on the points of their substance and scope but also on the point of their underlying rationale. The Anrechnungsprinzip does not count amongst its rationale the respect forres iudicata, and to a much lesser degree serves the interests of legal certainty and the legitimacy of the state than theErledigungsprinzip. It would seem that the onlyrationalethat the two principles have fully in common is that ofequity.

The differences between the two principles may pose something of a problem on the international level, and raise some important questions. Which of the two is actually the ‘real’ne bis in idemrule? Should an internationally applicablene bis in idemrule be construed in accordance with theAnrechnungs- prinzip, theErledigungsprinzip, or both? It must be said that it is remarkable that this important question has received relatively little attention in legal literature.

The first question is whether or not theAnrechnungsprinzipand theErledi- gungsprinzipcan both be seen as different aspects of the same legal principle. As mentioned before, in some national systems of law theAnrechnungsprinzip is not regarded as ‘ne bis in idem’, but as rule which derives from general principles of the proper administration of justice, whereas in other states the Anrechnungsprinzip isconsidered as an expression of thene bis in idemprinciple. Various authors hold different views on this point. Vervaele views the two as different expressions of the same fundamental principle.102_{Spinellis only}

remarks that in criminal justice systems, thene bis in idemprinciple “appears mainly in its negative form”; theErledigungsprinzipis by far more common amongst states.103_{Van den Wyngaert and Stessens only mention theErledi-}

gungsprinzipat all, whereas Daniels only mentions theAnrechnungsprinzip.104

Schomburg simply observes that, in reference to thene bis in idemprinciple, the concepts of the protection against double prosecution and that against double punishment are in practice used interchangeably.105 _{Wils remarks}

that thene bis in idemprinciple consists of both the protection against double punishment as well as that against double prosecution.106 _{Contrarily, Van}

der Wilt expressly views only the Erledigungsprinzip as the ne bis in idem principle ‘proper’, but does not go into the nature of theAnrechnungsrinzip.107

102 Vervaele 2005, p. 100. 103 Spinellis 2005, p. 1149.

104 Van den Wyngaert & Stessens 1999; Daniels 2006. 105 Schomburg 2005, p. 941.

106 Wils 2003 I, p.131.

Trechsel and Bartsch leaves the matter aside altogether108_{; Fletcher does not}

mention the issue as such but emphasises the problem of multiple prosecutions rather than that of multiple penalties.109

There are several arguments conceivable in favour of viewing only the Erledigungsprinzipas the “true”ne bis in idem. One argument is of a linguistic nature. If one accepts that the adage “ne bis in edam re sit actio” (or: “bis de eadem re agere non licet”) is the most authentic expression of the principle, it follows that only theErledigungsprinzipconfirms with this, as theAnrechnungs- prinzipdoes not preclude the possibility of a second set of proceedings. How- ever, as both expressions find their origins in Roman private law, this argu- ment probably cannot in itself be decisive anymore in the context of 21st

century criminal law, where different problems present themselves and differ- ent issues are at stake. Another argument is that theErledigungsprinzipis far more common amongst states and is usually regarded as the only “true”ne bis in idemprinciple in those states. There are therefore several arguments in favour of treating theAnrechnungsprinzipas a principle distinct from the “true” ne bis in idemprinciple. The only argument to the contrary would seem to be that in many cases,ne bis in idemrules in national law reveal some character- istics of both principles, either in wording or in the way that they are applied in practice.110

But does it necessarily matter all that much, for the international application of the principle? After all, and in spite of the various differences, the logic underlying both rules is equally self-evident. Most would agree that no-one should in principle have to undergo doublepunishment, any more than double prosecution. Why not then simply apply both rules jointly? At first sight this approach would seem to offer the subject “the best of both worlds” in terms of legal protection, in keeping with the aims of theECHR, theICCPR, and the Charter. Furthermore the wording of Articles 14(7)ICCPR, art 4P7ECHR, and Article 50 of the Charter appears to have foreseen the possibility of joint application of the two principles, where the provisions stipulate that “no one shall be liable to betried or punishedagain” (etc.). Out of the existing “inter- national”ne bis in idemprovisions presented in this study, only Article 54CISA clearly and unambiguously sides with theErledigungsprinzipstating that “a person (…) may not beprosecuted” (etc.).

Upon closer examination however, the combined application of the two principles leads to a dilemma, and the dilemma to an impossibility, which brings us back to our point of departure. Imagine again the two circles shown above. One represents the prohibition of double punishment, the other the prohibition of double prosecution. The area in the middle represents the initiation of the second prosecution. There is overlap, only because the prohi-

108 Trechsel 2005; Bartsch 2005. 109 Fletcher 2007 I.

bition of double prosecution prevents the second set of proceedings from taking place; and thus the second penalty from being imposed as a possible outcome of those proceedings. The prohibition of double punishment doesnothowever prevent the second prosecution from taking place. The dilemma is therefore that one of the two rules allows for a second set of proceedings, whereas the other does not.

The only way to combine these two incompatible points of departure would therefore seem to be todisallowthe second prosecution to take placein principle, but toallowit nevertheless, only if there is no risk of a double punishment being imposed. A solution? Hardly. If theAnrechnungsprinzipis thus treated as a general exception to theErledigungsprinzip, only the protection against doublepunishmentremains; the prohibition of doubleprosecutionis actually cancelled out entirely. And thus the impossibility is revealed: two rules, one allowingfor a second prosecution, and the otherprohibitinga second prosecu- tion cannot possibly both be applied to the same situation (the possibility of a second trial) without the one infringing the other. And thus we have arrived back at our point of departure.

It is remarkable, given its simplicity, that this fundamental issue has received little or no attention in legal writing. These observations also reveal a problem in the wording of Articles 14(7)ICCPR, art 4P7ECHR, and Article 50 of the Charter. The wording of those provisions (“no one shall be liable to betried or punishedagain”) simplycannotbe applied literally in the same case as this would automatically lead to an infringement the prohibition of double prosecution stated by the provisions themselves. It is not difficult to imagine how the wording of these provisions came about on this point. It should be borne in mind that Articles 14(7)ICCPRand 4P7ECHRwere drafted with existing national systems of criminal law in mind. In all of those national systems of criminal law, ane bis in idemrule in some form already existed, either in the form of theErledigungsprinzip, or in that of theAnrechnungsprinzip. It is therefore understandable that the draftsmen sought to provide a minimum standard covering both types of situations, without creating a direct obligation for the parties to these conventions to change their national systems of criminal law and criminal procedure on this point.

It follows from all the above that, regardless of whether or not one agrees