The Rome Statute establishing the International Criminal Court (ICC) states that the non bis in idem principle has a peculiar meaning, especially in comparison to European supranational law.
[2] If penalties are primarily intended to compensate for the shortfall and encourage future compliance, they may not be considered criminal according to the severity and purpose principles of the Engel Criteria—as seen in certain cases related to tax withholding.
In Kremzow,[5] the applicant, who was a retired judge sentenced for murder and unlawful possession of a firearm, appealed to the ECtHR based on the “criminal nature” of his disciplinary proceedings.
However, with the establishment of the General Amnesty Act in 1996, which applied to criminal offenses from the Yugoslav Wars other than crimes against humanity, charges brought against Marguš were dropped.
Subsequently, Marguš appealed to the Supreme Court, which upheld the conviction on the grounds that the second set of proceedings dealt with a broader scope since a Geneva Convention violation was applied.
Yet, the Court noted that contemporary granting of amnesties for war crimes was unacceptable and that the decisions taken in Croatia aligned with the fundamentals in the Convention—Article 2 (right to life) and Article 3 (prohibition of degrading treatment and torture).
The applicant was convicted of driving under the influence and death by negligence, resulting in fines and imprisonment first under Article 81 of the Criminal Code and then Section 5 of the Road Traffic Act in Austria.
The Court determined that despite the administrative action in the procedures, they were criminal in nature based on the fact that Gradinger’s fine was accompanied with a prison sentence contingent on his default on payment.
Zolotukhin[11] was a landmark case brought before the Grand Chamber of the ECtHR, which broadened the idem—or same offense principle—and harmonized the procedural laws for multiple prosecutions in contracting states in the CoE.
[13] The applicant, Sergey Zolotukhin, served as a Russian soldier and took his girlfriend into military property without permission, acted threateningly, and used obscene insulting language toward the police officers who arrested him in 2002.
However, Zolotukhin complained that the detention tied to his disorderly acts and his criminal sentence culminated in double penalty under the same offense, breaching his rights under Article 4 Protocol No.
From Zolotukhin, the presiding judges commented that limiting the scope of the offenses based on different legal classification undermined the rights of the individual guaranteed under Article 4.
The legal basis for the non bis in idem principle for the Court of Justice of the European Union (CJEU) is Article 50 of the EU Charter of Fundamental Rights, which is applicable in all member states.
Moreover, given the judicial framework of the EU, the CJEU has the potential to invoke direct effect via non bis in idem, altering the fundamental approach to member states discretion in related proceedings.
Finally, like the ECtHR has determined in matters in non bis in idem contingent on the criminal nature of a proceeding, Fransson additionally relied on the Engel criteria, which it failed to demonstrate.
Ultimately, the CJEU concluded the matter to be relevant to the Swedish court’s decision so long as whatever issued penalties are “effective, proportionate, and dissuasive” according to its national standards.
While VWGI and VWAG were still involved in proceedings with the Italian Regional Administrative Court, the Public Prosecutor’s Office of Braunschweig in Germany imposed a fine of 1 billion euros through a final decision on the same grounds of the misinformation related to Volkswagen’s pollutant emissions levels.
The Court’s premise laid on the idea that the imposed administrative fine constituted a criminal penalty due to its punitive purpose and higher degree of severity.
As for the latter prong related to the degree of severity, the CJEU noted that bearing in mind the maximum potential penalty contingent on relevant provisions, the 5 million euro fine constituted a criminal punishment.
While in technical terms, the penalties were under administrative code, they were inherently criminal and cited twice, demonstrating the utility of the Engel criteria in non bis in idem procedure through the CJEU.
In Gözütok and Brügge,[20] the CJEU dealt with legality of the preclusion of further prosecution given the discontinuation of criminal proceedings in another Schengen Agreement member state under Article 54 of CISA.
If the applicant complies with obligations by the public prosecutor, which Gözütok and Brügge did, an additional penalty or prosecution from another Schengen member state is redundant and violates the protections against a duplication of trial under Article 54.
In its decision, the Court ruled that non bis in idem was not violated in Kossowski since it realized that the Polish termination was not considered “final” to invoke Article 54.
Kossowski therefore confirmed two key tenets of the bis principle: (1) a final decision in proceedings from one member state must bar further prosecution and penalty in another member state and (2) a decision must be delivered “after a determination has been made as to the merits of the case.” In Van Esbroeck,[22] the CJEU assessed the relevant criterion for the application of the “same acts or offense” criteria of non bis in idem in the frame of material acts.
While the CJEU reiterated that definitive assessment would ultimately be under the jurisdiction of the respective national courts, the same offense in Van Esbroeck prevented his re-trial and second punishment.
The defendant, whose alias is HF, was a Serbian national who was put into custody in Germany following a red notice issued by Interpol at the request of American authorities.
Given the bilateral extradition treaty between the U.S. and Germany, non bis in idem could be potentially ruled out given its exclusion of considerations of judgments from other Member States, that being Slovenia in this case.
Since a final judgment was administered in Slovenia, an additional penalty that could be enforced could no longer be applicable since a decision had already been made in the national system of an EU member state.
However, the Court clarified that it would not have the capacity to bar extradition bilaterally assuming offense were committed outside of the subject matter or relevant time period of prosecution, upholding the “sufficiently close connection” tenet proscribed through the ECtHR.
Accordingly, Generalstaatsanwaltschaft München affirmed the supremacy of the Schengen Area and the EU over bilateral treaties in matters related to fundamental rights under extradition processes and double jeopardy.