The objective limits of the ne bis in idem in Italy between national and European rules

Abstract

It is sure that the ne bis in idem constitutes a fundamental right, protected by a plurality of national (article 649 of the Italian Criminal Procedure Code) and European rules (article 50 CDFUE and article 4 protocol n. 7 ECHR). However, precisely the “multilevel protection” of fundamental rights that characterizes the Italian system risks - paradoxically - to become an obstacle to the wider operation of the guarantee. The provisions that identify the content of the double jeopardy both at national and European level are based upon different concept (identity of the fact; identity of the offence), with a negative effect about the identification of the objective limits of the ne bis in idem. At the same time, the interpretation of the same provisions by the national judges, ordinary and constitutional, and by the Supranational Courts makes the boundaries of the ne bis in idem generated by a final decision even more uncertain. We refer to the hypotheses in which the ne bis in idem is linked with “parallel proceedings”, where the same fact is sanctioned both by penal and administrative dispositions. The reconstruction of the guarantee provided for by the art. 649 of the Italian Criminal Procedure Code shall strengthen the legality principle and the implies, therefore, on one hand, to reconsider the sameness of the object of the different proceedings; on the other hand, to avoid casuistic solutions, in contrast with to the legality principle, about the duplication of the different proceedings having the same object.

Keywords

• Processo penale italiano
• fatto nel processo penale
• giudicato
• ne bis in idem.