A new conception of ne bis in idem?

The idea of res judicata in criminal matters has been revolutionised by the ECtHR also because it introduced a new way to apply double jeopardy (or ne bis in idem, accord­ing to continental traditional terminology).

Unlike what has been reported in the past paragraphs, where we examined the evolution of European and Italian case law aimed at expanding the enforcement and the effectiveness of human rights in criminal justice, the European jur­isprudence concerning ne bis in idem risks jeopardising the maintenance of an essential pillar of the criminal justice guarantees.

The implications of those Strasbourg Court pronouncements are one of the most disputable issues of the ECtHR jurisprudence. In this field, the logic of the internal legal orders does not overlap with that of the conventional system. Therefore, it is not possible to transfer ECtHR claims about ne bis in idem to the national context of criminal procedure rules, because in this background the same statement becomes the denial of guarantees rationale of the ne bis in idem.

The problem arises from the controversial relationship between the enforcement of regulatory and/or financial sanctions provided by administrative law related to conducts already punished by criminal law. Obviously, in the perspective of the fundamental rights protection system, the Court of Strasbourg cannot be limited by political choices of national parliaments.

This has a very important consequence. In the light of domestic jurisdictions, the classification of something as ‘criminal’ under national law will be decisive in attracting the application of the various requirements of the European Convention to the relevant proceedings. On the contrary, the fact that certain proceedings are not so classified under national law will not preclude those requirements from being considered applicable to them by ECtHR.

According to the Strasbourg Court, the elements to qualify a judicial proceeding as ‘criminal’ are: 1) the punitive nature of the sanction and its repressive and preventive function; 2) its severity; 3) its connection to a criminal violation (so-called Engel’s criteria). On this basis, the ECtHR has recognised the punitive nature of several

13 ECtHR, 8 June 1976, (nos. 5100/71, 5101/71, 5102/71, 5354/72 and 5370/72) Engels and others vs Netherlands, § 82. administrative sanctions in many cases, convicting State parties not only for the vio­lation of art. 6 ECHR - because the administrative proceeding did not comply with rules granted by it - but also for the violation of art. 4 Prot. no. 7 ECHR - because the applicants have been convicted twice, by administrative authorities and by crim­inal courts.

Although such statements are unquestionable, the second one regarding the violation of art. 4 Prot. no. 7 ECHR cannot be slavishly applied in the national legal system. If it was applied in the domestic level in the same way it has been described in the ECtHR case law, it would follow that the criminal proceeding could not be open after the end of the administrative proceeding.

But if this solution was the right one, the person convicted by the adminis­trative authority would lose the guarantees prescribed by the ECHR in crim­inal matters. In this way, the result would be the weakening of rights and guarantees and not their increase. The administrative proceeding is in fact faster than the criminal one, just because it is less guaranteed then the other. Consequently, if the national legal systems intended to comply with the men­tioned judgments concerning ne bis in idem precluding criminal trial after the administrative conviction, the result would be that people suspected of having committed a criminal offence could be punished by administrative authorities all the times the conduct had been sanctioned by both criminal and adminis­trative national law; which means that the person lost his guarantees fixed in art. 6 and 7 ECHR and, exactly for this reason, it cannot be denied that he is legitimised to present an application to the Court of Strasbourg to denounce the violation of criminal guarantees.

Therefore, it’s necessary to transfer Strasbourg’s principia iuris concerning ne bis in idem to the domestic level in a different way. National legal systems have to rationalise their punitive frameworks, preventing the double punishment of the same fact, especially when the administrative sanction can be considered criminal according to Strasbourg Court indications to qualify the criminal matter. At the same time, internal criminal procedure rules cannot extend double jeopardy (ne bis in idem) to administrative convictions to avoid people convicted by administrative authorities suffering the violation of guarantees granted to criminal matters by ECHR. Indeed, a person must be judged only once according to the criminal guarantees established by criminal procedure law: the need to comply with ECtHR jurisprudence about art. 4 Prot. no. 7 ECHR cannot legitimate national systems in violation of art. 6 ECHR every time the punished conduct has been sanctioned by the administrative authorities.

7