‘Transnationalising’ Ne Bis In Idem: How the Rule of Ne Bis In Idem Reveals the Principle of Personal Legal Certainty

Abstract

Since Article 54 of the Convention implementing the Schengen Agreement gave the rule of ne bis in idem a transnational dimension, talk of the ‘transnational ne bis in idem principle’ has been commonplace. Thus, when looking for general principles of transnational criminal law, scholars refer to the principle of ‘transnational ne bis in idem’. It is doubtful, however, that ne bis in idem qualifies as a principle of law. It should be regarded, rather, as a rule of criminal procedure, traditionally based on the principle of res judicata. Giving the rule of ne bis in idem a transnational dimension therefore requires either transnationalising the principle of res judicata, or giving the rule of ne bis in idem a new foundation.
The principle of res judicata principally serves the credibility of the justice system in a given jurisdiction by prohibiting several tribunals, all acting within the parameters of their jurisdiction, from contradicting each other’s interpretation of the same facts. For this reason, the principle of res judicata does not provide an adequate basis for a transnationalised rule of ne bis in idem.
From a human rights perspective, multiple prosecutions against the same person for the same facts collides with protecting individuals against arbitrary judicial treatment. This is true whether the multiple prosecutions all take place in one country or in several different countries. The rule of ne bis in idem could therefore be regarded as a manifestation of the (new) ‘principle of personal legal certainty’.