By Michele Simonato
The principle of the ne bis in idem in criminal matters (i.e. the right not to be prosecuted or punished twice for the same criminal conduct) is a key safeguard against arbitrary use of the ius puniendi. Furthermore, it offers an interesting perspective from which we can observe the development of an area of freedom, security and justice in Europe, and how the relationships between the two main European human rights instruments – the Charter of Fundamental Rights of the EU (‘CFREU’) and the European Convention of Human Rights (‘ECHR’) and the related case law emanating from the courts of Luxembourg and Strasbourg – are evolving. Indeed, the way in which the CJEU will answer in the near future the questions that are submitted to it in several pending cases (see cases C-524/15, Menci; C-537/16, Garlsson et al.; C-596/16 and C-597/16, Di Puma) might have a ‘constitutional’ impact that goes well beyond the ne bis in idem principle. This post will take a closer look at some of these pending questions. Continue reading
On 2 October 2013, the Committee of Ministers of the Council of Europe opened for signature Protocol no. 16 to the European Convention on Human Rights. This new Protocol, which has been referred to as the “Protocol of the dialogue” by Dean Spielmann, the President of the European Court of Human Rights (ECtHR), creates the possibility for supreme courts of the Contracting States to the Convention to request an advisory opinion from the ECtHR on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”.
Even though the material scope of Protocol no. 16 is clearly confined to the Convention and its protocols, some concerns have been expressed in the recent past, notably at the recent hearing held by the ECJ on the draft agreement on EU Accession to the Convention (“DAA”), that the use of this new instrument of consultation by courts of the EU Member States might be problematic from the point of view of EU law. More specifically, the question was raised in this context whether Protocol no. 16 would not threaten the autonomy of EU law and the monopoly of the ECJ on the interpretation of EU law, by allowing supreme courts of the Member States to engage in a kind of “forum shopping” between the Luxembourg and Strasbourg courts. This contribution purports to demonstrate that those concerns are unjustified and should not be allowed to undermine the further development of the Convention system initiated by Protocol no. 16. Continue reading