Tumačenje načela ne bis in idem - interakcija Europskog suda pravde i Europskog suda za ljudska prava nakon stupanja na snagu Lisabonskog ugovora
Interpretation of the ne bis in idem Principle - Interaction Between the European Court of Justice and the European Court of Human Rights After the Lisbon Treaty Entered into Force

Author(s): Marina Gutschy
Subject(s): Social Sciences, Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, EU-Legislation
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Ne bis in idem principle; European Court of Justice; European Court of Human Rights;
Summary/Abstract: When Lisbon Treaty entered into force, the Charter of Fundamental Rights of the European Union became binding legal instrument (hereinafter:the Charter). There are numerous provisions of the Charter dealing with criminal law matters. Among them, ne bis in idem principle is of special importance in the context of establishing and developing European Union as an area of freedom, security and justice. Except in the article 50 of the Charter,provisions on ne bis in idem principle in the criminal law of the European Union can also be found in articles 54–58 of the Convention on Implementation of Schengen Agreement (hereinafter: CISA).What is the relationship between these two provisions and ne bis in idem principle contained in Protocol 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention,ECHR)? The Charter itself states that, in so far as the Charter contains rights which correspond to rights guaranteed by the Convention, meaning and the scope of those rights shall be the same as those laid down by the said Convention. In that respect, the aim of this article is to examine, whether there exists, and if the answer is affirmative, to what extent, interaction between the European Court of Human Rights (hereinafter: the Strasbourg Court, ECtHR) and the European Court of Justice (hereinafter: the Luxembourg Court, ECJ) when interpreting ne bis in idem principle and its elements(bis, idem). After introductory remarks regarding substance and rationale of the principle we will give an overview of legal instruments containing provisions on ne bis in idem principle with analysis of their differences and interplay between them. The main part of this article is focused on giving detailed review of post-Lisbon case law of the ECJ about ne bis in idem principle(cases Hans Åkerberg Fransson, Zoran Spasić and Procura della Republicav. M). Judicature of the ECtHR on the said principle will also be examined with some concluding remarks regarding the influence of the two Courts on one another when interpreting ne bis in idem principle.

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