The applicability of the ne bis in idem principle throughout the criminal trial. The view of the European Court of Human Rights and the Court of Justice of the European Union

Abstract

The principle “bis de eadem re ne sit actio” (ne bis în idem) appeared in the Digests of Emperor Justinian I and states that “the Governor must not allow the same person to be charged with a crime for which he / she has already been acquitted”.

In accordance with the European Court of Human Rights case-law, “idem” refers to those facts that constitute a set of concrete circumstances that involve the same defendant and which are indissoluble linked together in time and space, whose existence must be demonstrated in the purpose of securing a conviction or initiating criminal proceedings.

“Bis”, within the meaning of the ECHR case-law, refers to the prohibition to repeat a criminal procedure which has been concluded by a final decision. A final decision is a judgment in accordance with the traditional expression, which has acquired the force of res judicata because the parties have exhausted the available remedies or no further ordinary appeals are allowed or the deadline for submitting an appeal has expired.

 By applying the ne bis in idem principle, the courts tend to restore the overlap between factual and legal reality, while sacrificing the defendant's right as an accused person to enjoy the certainty of the completed criminal procedure, or on the contrary, sacrificing the right of society to obtain a conviction, keeping the accused person sheltered of a finalized criminal trial.