Article 4 of Additional Protocol No. 7 to the ECHR – Right not to be tried or punished twice – ne bis in idem

(1) No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

(2) The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

(3) No derogation from this Article shall be made under Article 15 of the Convention.

A person’s right ne bis in idem prohibits a person from being tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has previously been finally acquitted or convicted in accordance with the law and penal procedure of the State concerned. Therefore, it relates to an independent right although, at the same time, it forms part of the right to a fair trial under Article 6 of the ECHR.²⁰⁷⁰ It is also felt that the principle of ne bis in idem should be applied outside the criminal procedure law, i.e., to other types of proceedings.²⁰⁷¹

In order for a factual substrate of the case to be encompassed by the protection of Article 4, Additional Protocol No. 7 to the ECHR, the equivalent criminal offence must exist. Therefore, a formal definition of a criminal offence is not essential but rather a factual substrate of a criminal offence is required.²⁰⁷² Moreover, the type of property protected from a criminal offence is also important.

The constitutional principle of ne bis in idem is not breached in cases where several elements of various criminal offences are present in one offence committed by a person and where that person is punished adequately on various grounds. For example, this will be the case if a driver is punished for the criminal offence of driving under the influence of alcohol and for the criminal offence of obstructing a police officer in the exercise of his/her duty (in the relevant case, the criminal offence of attempt).²⁰⁷³ In addition, this constitutional right does not protect a person from the possibility that charges may be filed again for the same offence in cases where criminal proceedings related to that offence are pending or are not concluded by a legally binding decision.²⁰⁷⁴ Such a conclusion follows from the linguistic interpretation of the provisions of Article 4, Additional Protocol No. 7 to the ECHR, which requires, as a precondition for applying this right, that the proceedings have already been concluded by a legally binding decision. Culpability is validly established in cases where the substantive validity of the judgment has occurred.²⁰⁷⁵

Paragraph 2 of Article 4, Additional Protocol No. 7 to the ECHR provides an exception to the ne bis in idem rule in cases where it concerns the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings which could affect the outcome of the case. The notion “shall not prevent” indicates and clarifies that the reopening of the case is necessary if the legal requirements have been met. Therefore, it is always necessary to balance, on the one side, the principle of legal certainty arising from Article 4, Additional Protocol No. 7 to the ECHR, which is stipulated exclusively with regard to a convicted person and, on the other side, the interests of substantive justice (in this case, the interests of the public and the victim of the offence). In finding a balance between the mentioned interests, the particularities of each individual case must be taken into account. First of all, the severity of a defect in the proceedings and in the judgment of conviction, the legal effect of which is challenged, must be considered. Besides, as to the principle of legal certainty, the element of time plays an important role in striking a fair balance of interests. This entails the time that elapsed after the conclusion of the proceedings and the issue of possible responsibility with regard to the elapsed time and delays in the procedure to reopen the case in criminal proceedings.²⁰⁷⁶

In Case No. CH/01/6979,²⁰⁷⁷ the Human Rights Chamber ruled out the possibility of reopening the case in criminal proceedings as more than three years had passed since the final decision in the criminal proceedings had been rendered, in which the court ordered B.B. to undergo mandatory psychiatric treatment in custody, and the delays related to a retrial could be attributed solely to the victim’s legal representative, i.e., the victim of the criminal offence.