The ne bis in indem rule and the right not to be tried twice for the same act in International and European Union Law

Abstract

Ne bis in idem prohibits any person from being prosecuted and punished more than once for an act that he or she commited. It has two elements at its core. It is possible to express these elements as the same person and the same act. The same person element refers to the fact that in the second trial, the perpetrator of the act and the prosecution authority conducting the trial at the same time do not change. On the other hand, what should be understood by the same act is the acts arising from the exact same facts or the essence of the same facts. As a matter of fact, the European Court of Human Rights (ECtHR), in its Zolotukhin v. Russia judgment, in which it set significant criteria regarding the ne bis in idem rule and adopted a new approach based on its previous judgments, stated that 82. (…) Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same and clarified what should be understood by the same act.