The non bis in idem principle in the case law of the court of justice of the european union - consistency or inconsistency?

• Author: Darius-Dennis Patraus
• Position: Faculty of Law University 'Babes-Bolyai', Cluj-Napoca, Romania
• Pages: 25-34

AGORA International Journal of Juridical Sciences, http://univagora.ro/jour/index.php/aijjs

ISSN 1843-570X, E-ISSN 2067-7677

No. 1 (2018), pp. 25-34

25

THE NON BIS IN IDEM PRINCIPLE IN THE CASE LAW OF THE COURT OF

JUSTICE OF THE EUROPEAN UNION - CONSISTENCY OR INCONSISTENCY?

D.D. PĂTRĂUŞ

Darius-Dennis Pătrăuș

Faculty of Law

University “Babeș-Bolyai”, Cluj-Napoca, Romania

Email: darius_patraus@hotmail.com

ABSTRACT

The non bis in idem principle was first established in the Hammurabi Code (2,500

BC), under the name of res judicata pro veritate habetur.According to the non bis in idem

principle, "no one is allowed to be summoned again in court or punished in another criminal

case for the same criminal offense for which he has already been convicted or acquitted

under the law of a state". The non bis in idem principle has a broad field of application in the

field of international judicial cooperation in criminal matters.The harmonization of Member

States' laws and the abolition of borders at EU level created the premises for the widespread

application of the non bis in idem principle.For this reason, the Court of Justice of the

European Union has been charged with interpreting the rule, namely the non bis in idem

principle, as regulated in art. 54 CISA.At the present stage of regulation, an interpretation

contrary to the non bis in idem principle would be likely to erode the right and affect

international judicial cooperation in criminal matters.

KEYWORDS: non bis in idem principle; the Court of Justice of the European Union; res

judicata; domestic law; EU law.

I. BRIEF INTRODUCTION REGARDING THE NON BIS IN IDEM PRINCIPLE

In current legal geography, we are witnessing the development and consolidation of

the European law, which is becoming increasingly strong, in particular through the

jurisprudence of the Court of Justice in Luxembourg, as a unitary system with the role of

uniformizing national legal systems.

While criminal legislation does not, in principle, fall within the scope of the Union's

competences, the European legislator may impose certain conduct on the Member States in

this area, and the CJEU has the competence to deal with legal issues related to criminal law

and criminal procedure law, in the light of the provisions of art. 258, art. 263 and art. 267

TFEU. One of the principles created by the provisions of art. 50 CFREU1, art. 54 CISA2 and

art. 4 of Protocol no. 7 ECHR3 establishes at European level the non bis in idem rule. At the

same time, the principle of non bis in idem is also provided by the European special

1Published in OJ C 303 of 14 December 2007. See also F.Marian, The Constitution of Romania. The European

Convention on Human Rights. Charter of Fundamental Rights of the European Union. 5th Edition, PH. Rosetti

International, 2016.p.116.

2Convention implementing the Schengen Agreement of 14 June 1985, signed in Luxembourg, 19 June 1990,

published in OJ L 239 of 22 September 2000.

3Ratified by Romania through Law no. 30/1994, publ. in Official Monitor (Of. M.) No.135 of 31 May 1994.

Protocol no. 7 was amended by Protocol no. 11 of May 11, 1994, ratified by Romania by Law no. 79/1995,

published in Of. M., no. 147 of July 13, 1995.