Ne Bis In Idem: Towards a Transnational Constitutional Principle in the EU?

Abstract

Citizens and companies globalize: they are increasingly making use of their rights to free movement, to free settlement, to offer services and goods, to realize financial transactions, etc. Enforcement systems, including the criminal justice system, have to follow suit. They are obliged to go abroad to gather evidence, for the detention and extradition or surrender of suspects, to confiscate assets, to deal with conflicts of jurisdiction and the choice of allocating a criminal investigation and adjudication. Globalizing criminal justice systems increases the risk of double prosecution and/or double punishment. Do (legal) persons have the (fundamental) right not to be prosecuted or punished twice for the same facts in a globalizing and integrating world. Are they protected against these forms of double jeopardy in settings of transnational criminal justice, such as for instance in the EU area of freedom, security and justice? Does the ne bis in idem principle have a transnational reach? If so, what does this mean and what are the obstacles and exceptions thereto? In posing these questions, this article asks whether a (legal) person can derive a right to transnational protection in the area of freedom, security and justice from the different sources of ne bis in idem obligations in domestic law, in public international law (human rights law and mutual legal assistance) and in EU law. By analysing these sources and the case law thereon, I come to the conclusion that (legal) persons are unprotected against transnational double jeopardy, with the exception of the transnational ne bis in idem in the EU area of freedom, security and justice. However, even in the case of the latter exceptions, derogations, reservations and draw back interpretations based on national sovereignty undermine the rationale and scope of a real transnational ne bis in idem principle in a common space of transnational criminal justice.