Reopening Criminal Proceedings and Ne Bis in Idem: Towards a Weaker Res Iudicata in Europe?

(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.