Balancing Crime Control and Ne Bis In Idem: ECtHR Finds No Violation in Successive Proceedings
The case
concerned the right not to be tried or punished twice – a right protected by
Article 4 of Protocol No. 7 and known as the “ne bis in idem” principle.
In its Grand Chamber judgment in the case of Jesus Pinhal v. Portugal (applications nos. 48047/15 and 2276/20) the European Court of Human Rights held, by fifteen votes to two, that there had been no violation of Article 4 of Protocol No. 7 (right not to be tried or punished twice) to the European Convention on Human Rights.
The
applicant had been a member and Vice-Chairman of the Banco Comercial Português
bank (“the BCP”). Following a complaint, the Lisbon public prosecutor’s office,
the Securities Market Commission (CMVM) and the Portuguese central bank (BdP)
initiated proceedings against him for various criminal and administrative
offences. Before the Court, the applicant argued that he had been tried three
times for the same acts.
The Court
used this occasion to clarify the criteria to be applied in striking a fair balance
between ensuring that all forms of crime were punished effectively and respect
for the fundamental right not to be tried twice for the same acts.
The Court
reiterated that Article 4 of Protocol No. 7 to the Convention enshrined a
fundamental right guaranteeing that no one was to be tried or punished in
criminal proceedings for an offence of which he or she had already been finally
convicted or acquitted. It emphasised, however, that where the criminal
proceedings in question were the product of an integrated system enabling
different aspects of the wrongdoing to be addressed in a foreseeable and
proportionate manner forming a coherent whole, then the individual concerned
would not be subjected to injustice.
In the
present case, having found that there was a connection in substance and in time
between the three sets of proceedings in question – which were “criminal”
within the autonomous meaning of the Convention – the Court took the view that
they had formed part of an integrated system intended to punish various aspects
of the impugned acts of reporting false information. They had therefore not amounted
to duplication of proceedings. Accordingly, there had been no “duplication of
proceedings” for the purposes of Article 4 of Protocol No. 7, which protected
the right not to be tried or punished twice.
In consequence, the Court found that there had been no violation of Article 4 of Protocol No. 7 to the Convention. (source: echr.coe.int/photo pixabay.com)
The Judgement is available here
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