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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