Review article
The non bis in idem Principle Following the A. and B. V. Norway Judgment: the Possibility of Criminal Prosecution for an Offence for Which a Decision Has Already Been Rendered in Misdemeanour Proceedings
Igor Martinović
; Pravni fakultet, Sveučilište u Rijeci, Rijeka, Hrvatska
Abstract
The first section of the paper discusses the understanding of the non bis in idem principle
in the case law of the European Court of Human Rights prior to the judgment A and B v. Norway,
with particular reference to the Maresti and Tomasović cases. The Engel and Zolotukhin
criteria are clarified. Based on an examination of the theoretical viability of the Zolotukhin
criterion, it is concluded that the “idem factum” concept is correct. The Court’s case law on the
“bis” element is described in the following section of the paper, while emphasising that two
different interpretations have emerged. Further, the A and B v. Norway judgment is thoroughly
analysed, with particular attention to the criterion of the close connection in substance and
time, which is tested through the prism of the Croatian legal system. A conclusion is drawn
that the conducting of criminal proceedings after a final misdemeanour conviction for the
same act is possible in principle. The next chapter gives an overview of the so-called “pro
persona” understanding of the principle of non bis in idem, which has recently been rejected.
The basic outline of the German misdemeanour procedure and, in particular, the possibility of
conducting criminal proceedings after a misdemeanour decision becomes final are presented
and discussed. The last section of the paper analyses domestic case law at three different stages
following the Maresti judgment. Finally, practical guidelines and legislative suggestions are
given.
Keywords
non bis in idem; A and B v. Norway; close connection in substance and time
Hrčak ID:
232779
URI
Publication date:
2.12.2019.
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