Are Multiple Sanctioning Systems contrary to the Ne Bis in Idem? Critical Analysis of the Case Law of the European Court of Human Rights and the Court of Justice of the European Union Regarding the Lawfulness of Multiple Sanctioning Systems under the Ne Bis in Idem and a Proposal of Reconstruction

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The ne bis in idem prohibits to punish or prosecute a person for an offence for which he or she has already been acquitted or convicted by a final decision. Notwithstanding the extended recognition of the ne bis in idem, there is an evident lack of consensus on it, and several difficulties arise when the courts apply the protection to concrete cases. The above uncertainty is even greater in cases of multiple sanctioning systems. By “multiple sanctioning system” is understood a law enforcement system in which the same facts constitute two or more offences, which fall in the competence of different authorities. For instance, a case of water pollution can lead to the initiation of two sanctioning proceedings, one by the environmental protection agency and another by the public health protection agency. This work aims to resolve whether multiple sanctioning systems are contrary to the ne bis in idem under the regulation provided by Protocol 7 to the ECHR and the EU Charter of Fundamental Rights. The structure of the thesis is divided into four parts. The First Part studies the evolution and the current state of the case law of the United States Supreme Court, the Canadian Supreme Court, the Spanish Constitutional Court, the ECtHR and the CJEU regarding the lawfulness of multiple sanctioning systems under the ne bis in idem. The Second Part aims to critically analyse three problems with the case law of the ECtHR and the CJEU. The first problem is the lack of clarity on the rationale of the protection against multiple prosecutions, which has not been addressed by the ECtHR and the CJEU. The European courts have held only that it aims to prohibit the repetition of criminal proceedings against the same person based on the same facts. However, prohibiting the repetition of criminal proceedings is not the rationale of the prohibition of multiple prosecutions, but the consequence of its application. The second problem concerns the uncertainty that the application of the autonomous concept of “criminal offence” has caused. According to the ECtHR and the CJEU, the ne bis in idem applies only to criminal offences and proceedings. However, both European courts have held that the characterisation of the offence under national law cannot be the sole criterion to determine its nature, developing an autonomous concept of criminal offence. The problem with the application of the concept of criminal offence is that its results are often neither predictable nor coherent. Finally, the third problem is the incorporation of criteria unrelated to the protection against multiple prosecutions for the purpose of determining whether it has been violated. The ECtHR has held that the duplication of criminal sanctioning proceedings is not contrary to the ne bis in idem if the proceedings are sufficiently connected in substance and time. The CJEU has affirmed that the accumulation of sanctions and proceedings of criminal nature does not necessarily violate the ne bis in idem because the accumulation can be a legitimate limitation of this right. Three problems with the approaches of the ECtHR and the CJEU will be reviewed: the vagueness of the factors listed by the courts; the problematic criterion of avoiding any duplication in the collection and the assessment of the evidence; and the overlap between the ne bis in idem and the principle of proportionality. The three problems described above justify that a new interpretation on the matter under study is necessary. The alternative interpretation that will be proposed is based on the need to differentiate the protection against multiple prosecutions from the protection against multiple punishments since both protections have a different rationale, scope of application and different requirements. Finally, the last part addresses, in general terms, two other safeguards that limit multiple sanctioning systems: the principle of proportionality and the right to be tried within a reasonable time.