Ne bis in idem in European Law: A Difficult Exercise in Constitutional Pluralism

Abstract

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(3), 1341-1356 | Article | (Table of Contents) I. A principle of European law. - II. Building coherence across European legal systems. - II.1. The challenging construction of compatible European standards. - II.2. The problem of the idem: what is criminal? - III. The attempted compromise. - IV. The revived schism. - V. Conclusion. | (Abstract) This Article analyses the recent divergence between the two European Courts on the application of ne bis in idem to double-track procedures from the perspective of judicial dialogue and constitutional pluralism. Although major efforts have been made towards convergence over the past decades, recent case law shows that the potential for conflict - and, possibly, incompatibility - remains wherever the incentive to follow the lead of one authority is insufficient. Pushed to find solutions by the resistance of certain national courts to their converging standards, the European Court of Human Rights and the Court of Justice have chosen very different paths to reach a similar, but not identical, compromise solution. The Article examines the causes of this divergence and its consequences for the protection of this fundamental right in EU Member States.

Keywords

• ne bis in idem
• double-track enforcement
• fundamental rights
• european criminal law
• judicial dialogue
• criminal procedure