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Copyright of Österreichische Zeitschrift für Kartellrecht (ÖZK) is the property of Verlag Oesterreich GmbH and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article examines the evolving framework of the European Union's approach to environmental sanctions. It dissects the cornerstone principle of effective and dissuasive penalties, exploring its foundation in the Treaty on the Functioning of the European Union (TFEU) and its interpretation by the Court of Justice of the European Union (CJEU). The analysis then progresses by scrutinising specific legislative instruments, such as the Environmental Crime Directive, which establish more detailed requirements for environmental offences, including the types and levels of penalties. Furthermore, the article explores the intricate relationship between criminal and administrative liability in the context of environmental law. This exploration incorporates recent case law on the application of the principle of legality and the ne bis in idem principle in environmental matters. [ABSTRACT FROM AUTHOR]

(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 311-335 | Article | (Table of Contents) I. Setting the scene: introductory remarks. – II. The possibility to reopen a case and ne bis in idem: main theoretical issues. – III. Retrial and ne bis in idem in Europe through the lens of the Charter, the ECHR and the CISA. – IV. A focus on the ECHR: Art. 4 of Protocol 7 as a benchmark for cases reopening in Europe. – IV.1. New or newly discovered facts. – IV.2. Fundamental defects in proceedings. – IV.3. The influence on the outcome of the case. – V. Concluding remarks. | (Abstract) The principle of ne bis in idem, intrinsically linked to the concept of res iudicata, constitutes a fundamental cornerstone of criminal justice, ensuring protection against multiple prosecutions or punishments for the same offense. Nevertheless, the ever-evolving legal landscape has engendered extensive discussions concerning the potential reopening of criminal cases, particularly in light of novel evidentiary findings or fundamental procedural irregularities in the criminal proceedings at stake. This Article embarks upon a comprehensive and exhaustive inquiry into the intricate interplay between the re-examination of criminal proceedings and the ne bis in idem principle in Europe. By concentrating on key legal instruments, including the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights (ECHR), and the Convention Implementing the Schengen Agreement (CISA), this study aims at exploring the theoretical, legal, and human rights implications associated with such a course of action. At the heart of this analysis lies a meticulous examination of art. 4 of Protocol 7 to the ECHR, which serves as a pivotal benchmark governing the permissibility and justifiability of reopening criminal proceedings. Within this context, it will be demonstrated that, unfortunately, the interpretation of the latter provision by the Strasbourg Court – which provides for the minimum standards of protection of ne bis in idem in EU law – has not been consistent, creating potential issues concerning legal certainty and clarity that could undermine the essence of the said principle. Against this composite background, the primary objective of this Article is to illuminate the extent to which the principle of ne bis in idem may be rendered less stringent, in exceptional circumstances, to accommodate legitimate grounds warranting the reopening of criminal proceedings within the European legal framework.

L’objecte d’aquest article és analitzar com afecta la interpretació del ne bis in idem que fa el Tribunal de Justícia de la Unió Europea sobre el dret de la competència europeu. Una exegesi expansiva reforça el sistema de protecció dels drets humans a la Unió, incrementa la seguretat jurídica i afavoreix l’optimització de recursos per part de les administracions públiques; però pot perjudicar l’eficàcia del dret de la competència, que tan necessària és per a la resiliència de l’economia europea. Per dur a terme aquesta anàlisi responem tres preguntes. En primer lloc, si l’article 50 de la Carta de Drets Fonamentals de la Unió Europea, que plasma aquest principi, s’aplica a l’àmbit de la competència. Segona, com ha interpretat la jurisprudència comunitària aquest precepte. Finalment, com afecta aquesta interpretació l’eficàcia del dret de la competència europeu.

This document explores the complementarity between the Digital Markets Act (DMA) and the antitrust rules in the European Union. It discusses how the European Commission and national competition authorities have the choice to enforce market conduct by designated gatekeepers either under the DMA or as an abuse of dominance under Article 102 TFEU. However, there is a risk of duplication of enforcement actions, which can lead to inefficiency or under-enforcement. The document emphasizes the importance of coordination and the ne bis in idem principle in parallel proceedings. Overall, while the DMA and antitrust rules are seen as complementary, their application and coordination will need to be tested in practice. [Extracted from the article]

Copyright of Belügyi Szemle / Academic Journal of Internal Affairs is the property of Ministry of Interior of Hungary and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The introduction of the Digital Markets Act (the 'DMA') marked the beginning of a new regulatory framework for limiting the impact of strong platforms in digital markets. With the aim of ensuring fairness and contestability in digital markets, the new Regulation provided for a detailed administrative process, in the form of market investigations, for determining which of the digital platforms act as gatekeepers in their respective markets, whether the designated gatekeepers comply with their obligations, and to what extent new obligations must be introduced to account for new developments. This article discusses some preliminary issues related to the European Commission's administrative procedure for enforcing the new regulation. Upon summarizing the key elements of the DMA procedure, it focuses on four issues: the relationship between the DMA and competition law and problems regarding their parallel application; the obligation for recording interviews conducted for the purposes of gathering information regarding the subject matter of a market investigation; access to file limitations; and the absence of provisions regarding private enforcement and the possibility for third parties to claim damages. [ABSTRACT FROM AUTHOR]

Copyright of Revista Catalana de Dret Públic is the property of Revista Catalana de Dret Public and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Criminal and disciplinary liability are not mutually exclusive. Both criminal and disciplinary liability can be applied for the manipulation of sports competitions. That being the case, this article discusses the issue of compliance with the ne bis in idem principle in the situation of cumulative liability. This principle is incident in criminal matters, in a broad sense. To provide a thorough answer, first of all the Engel test is analyzed. Through the lens of this test, which is contained in the jurisprudence of the European Court of Human Rights, it was concluded that the disciplinary sanctions applicable in the case of manipulation of sports competitions are criminal rather than civil. Under these conditions, problems arise when similar sanctions (e.g., fine) are applied both according to disciplinary regulations and according to criminal law. Thus, it was shown that in order to comply with the ne bis in idem principle, the reasoning in the judgment A and B v. Norway should be taken into account. [ABSTRACT FROM AUTHOR]

Copyright of Crimen: Journal for Criminal Justice is the property of University of Belgrade, Faculty of Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Background: In France, some independent administrative authorities have been granted punitive powers concerning violations committed against stated regulatory rules. In this regard, the issue of the accumulation of penalties has been repeatedly raised concerning sanctions imposed by independent administrative authorities and criminal justice penalties. For example, a certain action could be criminalised by virtue of the Penal Law, necessitating a custodial sanction or a fine, while also considered a mere breach under financial and monetary laws, leading to the imposition of a certain financial penalty. This raises the question of whether the infliction of both criminal and administrative sanctions on financial and tax crimes violates the 'ne bis in idem' principle. The French Constitutional Council has addressed this issue extensively; it has banned the accumulation of criminal penalties and administrative sanctions of a punitive nature upon the fulfilment of certain conditions. Interestingly, these conditions did not apply to tax disputes, permitting the accumulation of penalties in this specific field. However, the accumulation of penalties was banned and deemed impermissible in financial markets. Therefore, a major question can be raised: Why has the Constitutional Council adopted two different approaches in those two similar fields? Methods: In pursuit of the research goals, this study employed a combination of comparative, historical, and analytical methodologies. By examining the legal nature of independent administrative authorities, this study conducts a comprehensive examination of relevant legal texts, encompassing constitutional provisions, legislation, and judicial decisions, to analyse the ne bis in idem principle in France. A comparative analysis approach was utilised to compare the rulings of the French Constitutional Council, the French Court of Cassation, and European judicial bodies. Results and conclusions: In various jurisdictions, including France and the EU, the principle of non-accumulation of criminal penalties and administrative sanctions is recognised, yet differences arise in its application. Jurisdictions vary in approach, with some strictly prohibiting accumulation while others allow flexibility based on factors like offence nature and societal interests. The French Constitutional Council sets standards, allowing dual penalties in tax matters but not in finance. Rulings by the French Constitutional Council and Court of Cassation offer insights into applying the principle, revealing complexities in balancing regulatory enforcement and individual rights. [ABSTRACT FROM AUTHOR]

The prohibition of being liable to be tried or punished again in criminal proceedings for the same offence ne bis in idem - is one of fundamental criminal proceeding principles and a basic human right. It protects the defendant from reopening the proceedings for the same criminal offence in respect of which the proceedings were finalized. Primarily, the effect of this principle is related to final court decisions. Regarding the decisions of the public prosecutor, there is a legal gap. As the reformed criminal procedure provides broader jurisdiction to the public prosecutor, it has seemed a necessity to consider in this paper what status is given in practice to the decisions of this procedural entity regarding the prohibition of ne bis in idem. During the review, the views of the European Court of Human Rights and the Court of Justice of the European Union are presented, which plays a key role in defining the principles and setting standards for the application of the principle, as well as domestic case-law. The author believes that a broader interpretation should be accepted so that the effect of the ne bis in idem principle is not limited only to court decisions but also to include the decisions of the public prosecutor. In this way complete legal certainty is achieved and uncertain legal situations are eliminated.

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(2), 853-878 | Article | (Table of Contents) I. Dual-track proceedings and the current scope of protection. – II. The need for a clear notion of “idem”. – III. The “sufficiently close connection in substance and time”: ECtHR case-law post A and B v Norway. – IV. The “sufficiently close connection in substance and time”: the unspoken balancing act engaged in by the ECtHR and an alternative criterion to assess whether there was a duplication of proceedings. – V. Lis pendens and ne bis in idem. – VI. Conclusion. | (Abstract) This Article analyses the issue of the compatibility with the ne bis in idem principle of the double-track sanctioning systems present in various European legal orders in the light of the case-law of the European Court of Human Rights and the Court of Justice of the European Union. In particular, after a reconstruction of the most significant case-law after the famous ruling A and B v. Norway, three main critical points are brought into focus: the divergences between the national and European case-law on the interpretation of the notion of idem factum, the difficult practical application of the close connection test between proceedings developed by the European Court of Human Rights, which can be seen as the precipitate of an unsatisfactory balancing act of opposing interests, and the possible extension of the ne bis in idem principle also to cases of lis pendens.

This paper will discuss the problems of the impeachment process in Indonesia. This issue focus on Articles 7A and 7B of the 1945 Indonesian Constitution. The two articles regulate the reasons for the impeachment process for the President and/or Vice President. This paper highlights two points. First is the impeachment process in Indonesia. Second, regarding the issue of the impeachment process being carried out, whether it can be a reason to abolish the prosecutor’s authority in prosecuting in the case of ne bis in idem or not. This research uses conceptual and historical approaches to analyze the problems discussed. From this study, the authors found that there are still problems in the legal aspect of evidence in the impeachment process, which still opens the possibility of the person being tried in another judicial system. Another finding is that the impeachment process and criminal/civil justice generally have different objects so that a person can be tried again. However, it needs to be strictly regulated in regulations related to the process and post-impeachment so that it no longer creates many interpretations in its implementation.

Copyright of Legal Thought / Pravna Misao is the property of Legal Thought / Pravna Misao and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The ne bis in idem principle has evolved considerably through international regulations, so that within the system of the European Court of Human Rights it consists of 3 elements: the definition of the criminal procedure, the identity of the components that meet the constitutive elements of a crime and the double accusation. The criteria taken into account for the qualification of a criminal sanction in the sense of art. 6 and 7 of the ECHR refer to the provision of the crime in national law, the nature of the violation and the severity of the sanction applied. Thus, it was established that the application of the ne bis in idem principle must be interpreted according to art. 4 of Protocol no. 7 of the ECHR and art. 50 of the CDFUE, in the sense that any charge related to a second crime is prohibited when it is based on facts identical or materially equivalent to those that constitute the basis of the previous final judgment, even under a different legal framework. [ABSTRACT FROM AUTHOR]

Copyright of Nuevo Foro Penal is the property of Universidad EAFIT and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The history of transferred malice is as long as that of the offence of murder with respect to how it was conceived and is traditionally applied. It ensures the maximum protection of human life, transferring mens rea away from the intended victim of the offence to the actual victim. The Italian Criminal Code in force places the rule in the 'General Part' of the law, formally enabling its application to every offence. The first part of this essay focuses on the development of transferred malice across the earlier criminal codes of the Italian kingdoms. Then, I present the highlights of the development of the academic debate at the time the criminal code in force was drafted. Finally, I claim the rule should be repealed because of its contradiction with European and domestic rules on victim protection and the strict liability principle in criminal matters. [ABSTRACT FROM AUTHOR]

Copyright of Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi is the property of Marmara University and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

In the present study, the author exposes an unprecedented situation extracted from Romanian criminal case-law, which generated controversies regarding the possibility of ordering the preventive arrest of a person. In essence, the possibility of replacing judicial control with preventive arrest in a criminal case, for the commission of a new crime, in the conditions where the person has already been arrested in the second case, where the criminal action was initiated against him for its commission, is analysed. The study takes into consideration the necessary replacement conditions according to art. 215 para. (7) of the Criminal Procedure Code, those of arrest provided in art. 223 para. (1) let. d) of the Criminal Procedure Code, if separate arrest can be ordered in the two cases, or if we are dealing with a problem of legality. At the same time, the incidence of some principles that could make the arrest illegal in both cases is analysed, namely the principles of ne bis in idem, res judicata authority and res judicata power. [ABSTRACT FROM AUTHOR]

Copyright of Pravnik is the property of Czech Academy of Sciences, Institute of State & Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The case commentary examines the recent ruling of the Court of Justice in the Nordzucker case. This judgment is important not only for the new approach to the ne bis in idem principle in competition law (which was first established in the Bpost case, issued the same day), but also for the clarification of the concept of “idem” with respect to the territorial effects of the infringement on the territories of two member states. The judgment thus provides guidance for the extraterritorial application of EU competition law.

In this article, the author reviews the European Union law regarding market abuse from a human rights perspective. Setting the foundation for the discussion from a historical perspective on the different legislative approaches on the issue of market abuse, the article continues with the ECHR’s and CJEU’s relevant case-law on the subject. Mainly, the right to a fair trial and the ne bis in idem rule are the fundamental rights that should be looked at closely when placing the market abuse regulations under scrutiny. Certain irregularities of the legislation are outlined. Also, the article tries to point out on which aspects improvements should be pursued.

The EU Courts' interpretation of the ne bis in idem principle in proceedings under Regulation No 1/2003 has drawn considerable criticism for giving short shrift to the rights and interests of undertakings that face multiple prosecutions across the European Union. An optimal antitrust enforcement analysis casts the issue in a different light. The EU Courts' approach represents an attempt to balance ne bis in idem's rights-based goals of furthering fairness, legal certainty and free movement with the challenges of designing optimal Beckerian penalties in a decentralized antitrust enforcement system. [ABSTRACT FROM AUTHOR]

The current oversimplification of the amnesty issue has created a narrative that international law prohibits granting and admitting the effect of amnesties for core crimes. However, even if a domestic amnesty is found illegal under international law, it is still valid at the national level. The International Criminal Court (ICC) cannot ignore the existence of and the legal consequences of such 'illegal' amnesties in assessing the admissibility of a case. This article categorises amnesties into three types and clarifies the legal and factual effects of internationally illegal domestic amnesties for the ICC and the legal logic under which the ICC treats such amnesties at the admissibility stage based on the developing applicable laws. This study provides clear guidelines on the conditions that would make a case inadmissible before the ICC for both the chambers and the domestic policy makers and legislators who design amnesties. [ABSTRACT FROM AUTHOR]

The article analyzes the difference between the principle of ne bis in ídem in procedural law and res judicata in criminal matters. It argues that, although both institutions have common points, it is necessary to differentiate them based on their foundation and structure. This distinction has procedural implications and reveals the value of the difference. The article also mentions the historical relationship between ne bis in ídem and res judicata, as well as their application in the Chilean criminal system. [Extracted from the article]

The judgment gives the opportunity to focus on the ne bis in idem principle as established at the European Union level. Accordingly, after an analysis of the facts of the case and of the judgment of the Italian Supreme Court, some inquiries on the nature of the principle will pave the way for a critical assessment of the decision's legal reasoning, notwithstanding the correctness of the final outcome. [ABSTRACT FROM AUTHOR]

This article focuses on the interactions between the Digital Markets Act (DMA) and the laws and competition frameworks of Member States. Specifically, the article sets out three different interpretations on the text of articles 1 (5) and (6) of the DMA, which govern interactions between the DMA and national law and competition policy. The article identifies a narrow, broader, and broadest interpretation of the legal interests protected under the DMA. Each interpretation creates different harmonization effects. The article argues that the narrow and broader interpretations allow for significant divergence between national rules, creating the risk of regulatory fragmentation. The broadest interpretation would allow competition authorities and courts to weigh the interests protected in the DMA against national interests and create greater convergence of laws and competition policy in the Digital Single Market. The article also proposes ways forward for the implementation and enforcement of the DMA and national competition laws. [ABSTRACT FROM AUTHOR]

Copyright of Belügyi Szemle / Academic Journal of Internal Affairs is the property of Ministry of Interior of Hungary and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

John Ratliff and his colleagues summarize and comment on recent detailed Spanish and Italian Energy Regulator decisions on market manipulation through giving false or misleading signals (coordination on matched orders, including iceberg bids, and wash trades). The cases include explanations of such practices, the related evidence relied on by the authorities to show the infringements of Article 5 of REMIT, and the defence arguments raised, including ne bis in idem. He also summarizes (with the assistance of Monica Iancu and her colleagues in Bondoc & Asociatii) a press release from the Romanian Energy Regulator, noting the many decisions it had taken between 2019 and 2022, mainly on wash trades, with some on layering and pre-arranged transactions. Some 20 market participants have been sanctioned for infringements on the wholesale electricity market; and four market participants have been sanctioned for infringements on the wholesale natural gas market. Finally, he notes two recent press releases from the Bulgarian Energy Regulator concerning market manipulation cases, one including layering and spoofing, in which seven companies were sanctioned. [ABSTRACT FROM AUTHOR]

The legal debate regarding the active subject of the money laundering criminal offence is not a new issue in the legal landscape. However, given the complexity of this offence, as well as the duality of international-national regulations, a series of problematic aspects regarding this topic subsist. In the first part of the study, the possibility of holding a person criminally liable both for the commission of the predicate offence and for the commission of a possible money laundering offence will be analysed, focusing especially on the provision of Law no. 129/2019. In the second part of the study, starting from the famous "autonomy" of the money laundering offence, certain problematic aspects regarding the violation of the presumption of innocence of a person who is also accused of committing the predicate offence will be addressed. In the final part of the study, the focus will be on the analysis of the ne bis in idem principle and how it can be reconciled with the criminal liability of a person both for committing the predicate offence and the money laundering offence. [ABSTRACT FROM AUTHOR]

Dentro del análisis de la diversidad y multiplicidad de procedimientos y procesos sancionatorios que existen en el Perú, en el caso no tan hipotético de que se haya ventilado un caso o hecho, primero administrativamente, que concluya con una sanción disciplinaria y, a posteriori, en el ámbito penal privativo (castrense), y consecuentemente en el fuero común u ordinario, es factible que, en materia penal, por la existencia de mecanismos procesales de persecución, se sancione a un sujeto que cometió una infracción, y que sea motivo suficiente para que un mismo hecho pueda ser objeto de una regulación sancionadora administrativa y de otra índole penal privativa y penal común u ordinaria. En este escenario, el principio de ne bis in idem es una garantía básica que rodea a todo proceso sancionatorio, y que admite solo una posibilidad de un segundo proceso, a través de una revisión de sentencia, ya que el objetivo de dicho proceso es preservar la necesidad de consolidar un derecho y los principios como el que se ha investigado, a fin de evitar alguna injusticia. Así, pues, a través de este principio se busca lograr que un Estado de derecho disipe la incertidumbre y se sostenga dentro de una seguridad jurídica y respeto por el ciudadano y su dignidad, como base fundamental del mismo Estado y su organización social.

A pénzmosás olyan legális gazdasági műveletek leplezése alatt folytatott illegális gazdasági szolgáltatás, amelynek eredményeként a bűncselekménnyel szerzett vagyon eredete igazolhatóvá válik, megszabadulva annak felismerhetően jogellenes mivoltától. A mikro- és makrogazdasági hatásai is rendkívül veszélyesek, az ellene folytatott küzdelem a szervezett bűnözés elleni harcon túl a pénzügyi rendszerbe fektetett bizalmat is erősítheti. A 2021. január 1-jétől hatályos új magyar büntetőjogi szabályozás amellett, hogy mindenben megfelel a nemzetközi szervezetek és a hatályos nemzetközi egyezmények elvárásainak, a magyar anyagi büntetőjog dogmatikájával ellentétes, a gyakorlatban alkalmazhatatlan rendelkezéseket is tartalmaz. A számos ellentét feloldása sokkal inkább a jogalkalmazás, mint a jogalkotás feladata lesz. Cél: Bemutatni a pénzmosás hatályos szabályozását, elemezni a magyar büntetőjog dogmatikájával összeegyeztethetetlen tényállási elemeket, és vázolni a problémák feloldásának lehetséges alternatíváit. Módszertan: A tényállás elemző bemutatása, a törvényszöveg és az indokolás elemzése a szakirodalom és a gyakorlat tükrében. Megállapítások: A pénzmosás első alakzata, a materiális statikus pénzmosás a gyakorlatban alkalmazhatatlan: ütközik a kétszeres értékelés tilalmába, az önvádra kötelezés tilalmába és a látszólagos anyagi halmazat esetei közül büntetlen utócselekménynek minősül. Emiatt generálisan hiányzik a társadalomra veszélyesség a tényállás mögött. Nemzetközi kötelezettségeink miatt kellett így kodifikálni, de álláspontom szerint a gyakorlatban nem szabad alkalmazni. Érték: A tanulmány támpontot adhat a jogalkalmazói gyakorlat számára a felmerülő kérdések megoldásában.

Problematika uplatňování pravidla ne bis in idem mezi správním řízením o přestupku a trestním řízením soudním vytváří řadu otázek spojených s tím, jaké další stíhání je vyloučeno, jestliže o určitém protiprávním činu již bylo jednou pravomocně rozhodnuto. Předložený článek rozebírá, za jakých podmínek je možné vést trestní stíhání o témže skutku téže osoby, o němž již bylo pravomocně rozhodnuto ve správním řízení jako o přestupku. Věnuje se podmínkám českého zákona č. 250/2016 Sb., o odpovědnosti za přestupky a řízení o nich, který umožňuje, aby správní orgán zrušil již pravomocné rozhodnutí o přestupku, nasvědčují-li okolnosti, že by skutek měl být posuzován pro pachatele přísněji jako trestný čin podle trestního zákoníku. A porovnává tuto národní úpravu s pravidly mezinárodní smlouvy, a to čl. 4 odst. 2 Protokolu č. 7 k Úmluvě o ochraně lidských práv a základních svobod, která umožňují jen za velmi restriktivních podmínek nové řízení o již jednou pravomocně rozhodnutém skutku.

Copyright of FORO: Revista de Ciencias Juridicas y Sociales Nueva Epoca is the property of Universidad Complutense de Madrid and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The study deals with two problematic situations in which the incidence of the ne bis in idem principle is debated. The first of these refers to the possibility of reopening the criminal prosecution after the classification, by admitting the complaint filed with the judge of the preliminary chamber by the injured person "B", in the conditions that such a complaint filed by the injured person "A" had previously been rejected. "The conclusion reached is that, if the injured person "B" was not a party to the first procedure and did not know about the classification solution, being within the deadline to file his own complaint against the prosecutor's solution, the ne bis in idem principle is not an incident, because the exceptions stipulated by art. 4 of Protocol No. 7 to the European Convention on Human Rights, regarding the existence of a fundamental flaw in the first procedure and the discovery of new evidence. The second situation is related to the impediment of the impossibility of opening a criminal investigation for the deed that constitutes a crime, in the conditions where another administrative sanction was previously applied for (apparently) the same deed. The exposed conclusion is that the domestic legislation should provide for a special case of annulment of the administrative sanction, applicable before the opening of the criminal investigation, thus removing the first "conviction". In the situation where the sanction was validated or applied by a court decision, the legislation should provide for a special case of annulment of this decision. Both ways of removing the first "conviction" for the same deed can have as a justifying basis the existence of a fundamental flaw in the first procedure, consisting in the violation of the competence of the criminal judicial bodies. [ABSTRACT FROM AUTHOR]

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In 2015 the Council of Europe introduced a new criminal law convention to address organ trafficking. The main focus of the Council of Europe Convention against Trafficking in Human Organs is the crime of illicit organ removal. The act of illicit organ removal is also criminalised under international human trafficking instruments that consider it as a form of exploitation of a living organ donor. As both legal frameworks rely on two key concepts to determine if the respective crimes occurred, namely, valid consent to organ removal and the presence of monetary benefits, a clear overlap exists when an organ is removed from a living donor. The question arises as to whether the illicit organ removal, based on the same factual circumstances and material evidence, is sufficiently distinct for an offender to be prosecuted under both regimes simultaneously or in separate criminal proceedings, without violating the principle of ne bis in idem. This paper aims to answer that question by (1) examining the crime of illicit organ removal under both criminal regimes and (2) analysing Belgian criminal law frameworks on human trafficking and organ trafficking in the context of the applicability of the principle of ne bis in idem as developed by the European Court of Human Rights and the Court of Justice of the European Union. This analysis reveals the complexity of the issue. It also confirms the proximity of the legal definitions of both types of crimes, resulting in a considerable overlap and a clear risk of double prosecution and punishment. On the basis of these findings, recommendations are formulated on how to harmonise the application of both trafficking frameworks so as to minimise that risk. [ABSTRACT FROM AUTHOR]

The ne bis in idem principle as one of the most established legal rules, has been widely regulated by sources of national and International Law. By its very nature, it protects individuals from double punishment for the same act, regardless of its classification as a misdemeanor, criminal offence etc. Different legal traditions, together with a purely national criminal jurisdiction, led to a certain divergency among states. Moreover, such a problem has existed for a long time in the jurisprudence of the European Court of Human Rights. However, regulation of this principle in the EU Law brought upon some novelties. In the end of 20th century and in the beginning of 21st century there was the process of a more detailed defining of conditions for the application of ne bis in idem principle. In parallel with that process, the European Court of Justice delivered its judgments, which clarified practical dilemmas of national courts in this particular field of law. These judgments resulted from the requests for preliminary ruling referred by national courts. In that regard, many important precedents have been adjudicated, defining essential elements for implementation of prohibition of double punishment, as for example concept of the 'same act'. On the basis of the analysis of the legal framework and relevant jurisprudence of the ECJ, we come to the conclusion that the principle ne bis in idem in the EU Law system has been interpreted extensively and this fact significantly impacts on the overcoming of formalities contained in national legal systems, which can bring about double punishment for the same act.

The subject of discussion in this article is the current regulatory framework for engaging in administrative and criminal liability for violations of tax legislation related to excise goods, through the lens of the “ne bis in idem” principle. This principle, which prohibits a person from being prosecuted more than once for the same (criminal) behaviour, has been adopted both in the constant practice of the European Court of Human Rights and in the mandatory practice of the Supreme Court of Cassation, with relevant clarifications regarding its application field in criminal proceedings and criteria for determining the nature of the latter. The changes in Bulgarian legislation, preventing the parallel or consecutive conduct of administrative and criminal proceedings, in turn, are an additional guarantee for the observance of the principle and the creation of legal certainty [ABSTRACT FROM AUTHOR]

In this article the author proposes an analysis of the procedural mechanisms for situations in which one single criminal deed is the subject of multiple criminal trials. In this regard, a detailed examination of the Article 37 of the Criminal Code and Article 585 para. (1) d) of the Criminal Procedure Code is in order. Firstly, the author explains the historical context of the relevant legal provisions. Secondly, the author outlines the two main hypotheses taken into account by the legislator, while also establishing their scope and the procedural issues for each hypothesis. Finally, the article touches on some particular situations that cannot be resolved by using the same procedural mechanism and for which alternative solutions have been proposed.

Against the background of the interpenetration of the forms of legal liability for the same illicit deed, whether it is criminal, administrative, contraventional or disciplinary liability, in conjunction with the case law of the European courts attributing criminal character to some accusations beyond the legal qualification of the deed in the domestic law, a double criminal liability may be reached, thus posing the problem of the cumulation of these liabilities in terms of respecting the right not to be punished twice (ne bis in idem). Although no matter can be an exception, the issue arises mainly in areas where there are various forms of liability in the domestic law and different authorities with supervisory and sanctioning powers, such as tax evasion, public order, forestry or environmental offences or, finally, labour protection, which is of interest here. Thus, in the field of safety and health at work, the employer's liability in the event of accidents at work may be exemplary for such situations, given that he is liable for both a criminal liability incurred by the judicial bodies and a contraventional liability established by the special bodies of the labour inspection, following that our approach will address this issue in the context of the current case law of the European courts of law (such as Case A and B v. Norway, Grand Chamber of the E.C.H.R., or the C.J.E.U. cases, Luca Menci, Garlsson Real Estate SA and Enzo Di Puma, Consob). [ABSTRACT FROM AUTHOR]

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