Ne bis in idem — Double Jeopardy

Principle

Ne bis in idem bars renewed prosecution or punishment for an offense on which a final decision has already been rendered.

Legal basis

Section 9 IRG: extradition is inadmissible where German jurisdiction is also established and a German court or a German authority has already issued a judgment or a decision with equivalent legal effect concerning the same offense. Final judgments in other Schengen or EU states operate as a bar to extradition via Article 54 CISA or Section 83 (1) no. 1 of the IRG. Article 54 CISA: cross-border ne bis in idem within the Schengen area. Article 50 of the EU Charter: ne bis in idem as an EU fundamental right.

Requirements

The same offense (idem) — what matters is the identity of the facts, not the legal classification. A final decision (bis) — no further appeals are available.

EAW specifics

Article 54 CISA also applies in the EAW context: after a final judgment in a Schengen state, further criminal prosecution is inadmissible, provided that any penalty imposed has already been enforced, is actually in the process of being enforced, or can no longer be enforced. A final acquittal for lack of evidence also triggers this protection (ECJ, judgment of 28 Sep 2006, C-150/05 — Van Straaten).

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