Controversial aspects regarding the apparent violation of the ne bis in idem principle

Abstract

Being based upon a comprehensive analysis of the case law of the European Court of Human Rights and the European Court of Justice, as well as upon the national and European published literature, this paper started from the premise that a fair balance must be struck between the interest of the society to effectively repress an antisocial conduct and the individual interest not to be repeatedly prosecuted or punished for the same action - which might prove difficult to implement, especially given the recent reconfiguration of the principle ne bis in idem.

As a consequence of an obviously deficient supranational legislation, which boiled down to an extremely volatile jurisprudence of the European courts, ne bis in idem has had a remarkable evolution with the passage of time, being expected to evolve even more in the upcoming future. Even though at the moment the desideratum with respect to the existence of benchmarks for the uniform interpretation and application of this fundamental procedural guarantee has been seemingly achieved, several doubts have been raised as regards specific cases of apparent violation of the principle ne bis in idem - which will certainly remain topical issues until further clarification from the European judicial practice.

This study was made for the purpose of revealing the main controversial aspects and uncertainties existing in the literature and jurisprudence with regard to the meaning and scope of the principle ne bis in idem, but also to supply necessary clarifications and identify possible solutions given the national substantial and procedural criminal legislation.