Condensed: Double jeopardy means (a) the trial or punishment of a person for an offence in respect of which he or she (b) has already been finally convicted or acquitted (c) in accordance with the law (d) in the same jurisdiction. New trials may be carried out in exceptional circumstances such as in the case of the subsequent discovery of proof that a miscarriage of justice was committed or where new facts or evidence have been discovered bearing on the issues already decided. Double jeopardy is not a defence where the original trial was a sham intended to shield a person from accountability. Comprehensive: Article 14(7) of the ICCPR provides: ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’ The prohibition on double jeopardy is also set out in regional human rights instruments.[1] According to the HRC, 'this provision prohibits bringing a person, once convicted or acquitted of a certain offence, either before the same court or before another tribunal again for the same offence; thus, for instance, someone acquitted by a civilian court cannot be tried again for the same offence by a military or special tribunal'.[2] In Jijón v Ecuador, the HRC held that while the second indictment concerned a specific element of the same matter examined in the initial trial, the applicant was not tried or convicted a second time, since the Superior Court quashed the indictment.[3] Article 14(7) does not apply if an acquittal by a lower court is reversed by a higher level court conviction.[4] The ACHR provides that if a person has been acquitted through a final judgment, he or she ‘shall not be subjected to a new trial for the same cause.’[5] Thus a new trial with different charges based on the same facts which result in a new trial would violate the ACHR.[6] Article 14(7) of the ICCPR and article 4 of Protocol 7 to the ECHR refers to ‘offence’. However, the ECtHR has held that that an ‘approach which emphasises the legal characterisation of the two offences is too restrictive on the rights of the individual’ and that double jeopardy is ‘prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same.’[7] The Working Group on Arbitrary detention has held that 'repeated punishment of conscientious objectors for not having obeyed a renewed order to serve in the military may amount to punishment for the same crime if such subsequent refusal is based on the same constant resolve grounded in reasons of conscience'.[8] The HRC has held that the prohibition on double jeopardy applies to 'criminal offences only and not to disciplinary measures that do not amount to a sanction for a criminal offence within the meaning of article 14(7)'.[9] The ECtHR has held that in determining what constitutes a criminal offence the Court will consider the national classification, the nature of the offence and the severity of the penalty.[10] There is a presumption that charges are criminal if they can result in deprivation of liberty.[11] The right against double jeopardy only applies to proceedings in a single national jurisdiction hence one can be re-tried and punished in a different country for the same offence based on the same facts committed elsewhere.[12] In AP v Italy, the HRC held that there had been no violation of article 14(7) of the ICCPR where the complainant was convicted and punished in Italy for an offence in respect of which he had already been tried and punished in Switzerland.[13] Despite the rule against re-trials, new trials may be carried out in exceptional circumstances such as subsequent discovery of proof that a miscarriage of justice was committed or where new facts or evidence have been discovered bearing on the issues already decided.[14] Double jeopardy is not a defence where the original trial was a sham. The IACtHR has held:[15] With regard to the nebis in idem principle, although it is acknowledged as a human right in Article 8(4) of the American Convention, it is not an absolute right, and therefore, is not applicable where: i) the intervention of the court that heard the case and decided to dismiss it or to acquit a person responsible for violating human rights or international law, was intended to shield the accused party from criminal responsibility; ii) the proceedings were not conducted independently or impartially in accordance with due procedural guarantees, or iii) there was no real intent to bring those responsible to justice.
[1] ACHR art 8(4) (which only refers to acquittal); Protocol 7 to the ECHR art 4(1); Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003) para N(8).
[3]Jijón v Ecuador, communication 277/1988 (HRC 1994) para 5.4. In this case the applicant contended that the defendant breached article 14(7) because he was reindicted for the same events that had been the basis of his first trial and conviction.
[4]Babkin v Russia ccommunication 1310/2004 (HRC 2008) para 13.5.
[7]Zolotukhin v Russia application 14939/03 (ECtHR 2009) paras 81, 82.
[8] HRC General Comment 32; United Nations Working Group on Arbitrary Detention, opinion 36/1999 (Turkey) para 9, and opinion 24/2003 (Israel) para 30.
Double jeopardy means (a) the trial or punishment of a person for an offence in respect of which he or she (b) has already been finally convicted or acquitted (c) in accordance with the law (d) in the same jurisdiction.
New trials may be carried out in exceptional circumstances such as in the case of the subsequent discovery of proof that a miscarriage of justice was committed or where new facts or evidence have been discovered bearing on the issues already decided. Double jeopardy is not a defence where the original trial was a sham intended to shield a person from accountability.
Comprehensive:
Article 14(7) of the ICCPR provides: ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’ The prohibition on double jeopardy is also set out in regional human rights instruments.[1]
According to the HRC, 'this provision prohibits bringing a person, once convicted or acquitted of a certain offence, either before the same court or before another tribunal again for the same offence; thus, for instance, someone acquitted by a civilian court cannot be tried again for the same offence by a military or special tribunal'.[2] In Jijón v Ecuador, the HRC held that while the second indictment concerned a specific element of the same matter examined in the initial trial, the applicant was not tried or convicted a second time, since the Superior Court quashed the indictment.[3] Article 14(7) does not apply if an acquittal by a lower court is reversed by a higher level court conviction.[4]
The ACHR provides that if a person has been acquitted through a final judgment, he or she ‘shall not be subjected to a new trial for the same cause.’[5] Thus a new trial with different charges based on the same facts which result in a new trial would violate the ACHR.[6] Article 14(7) of the ICCPR and article 4 of Protocol 7 to the ECHR refers to ‘offence’. However, the ECtHR has held that that an ‘approach which emphasises the legal characterisation of the two offences is too restrictive on the rights of the individual’ and that double jeopardy is ‘prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same.’[7]
The Working Group on Arbitrary detention has held that 'repeated punishment of conscientious objectors for not having obeyed a renewed order to serve in the military may amount to punishment for the same crime if such subsequent refusal is based on the same constant resolve grounded in reasons of conscience'.[8]
The HRC has held that the prohibition on double jeopardy applies to 'criminal offences only and not to disciplinary measures that do not amount to a sanction for a criminal offence within the meaning of article 14(7)'.[9] The ECtHR has held that in determining what constitutes a criminal offence the Court will consider the national classification, the nature of the offence and the severity of the penalty.[10] There is a presumption that charges are criminal if they can result in deprivation of liberty.[11]
The right against double jeopardy only applies to proceedings in a single national jurisdiction hence one can be re-tried and punished in a different country for the same offence based on the same facts committed elsewhere.[12] In AP v Italy, the HRC held that there had been no violation of article 14(7) of the ICCPR where the complainant was convicted and punished in Italy for an offence in respect of which he had already been tried and punished in Switzerland.[13]
Despite the rule against re-trials, new trials may be carried out in exceptional circumstances such as subsequent discovery of proof that a miscarriage of justice was committed or where new facts or evidence have been discovered bearing on the issues already decided.[14]
Double jeopardy is not a defence where the original trial was a sham. The IACtHR has held:[15]
With regard to the ne bis in idem principle, although it is acknowledged as a human right in Article 8(4) of the American Convention, it is not an absolute right, and therefore, is not applicable where: i) the intervention of the court that heard the case and decided to dismiss it or to acquit a person responsible for violating human rights or international law, was intended to shield the accused party from criminal responsibility; ii) the proceedings were not conducted independently or impartially in accordance with due procedural guarantees, or iii) there was no real intent to bring those responsible to justice.
[1] ACHR art 8(4) (which only refers to acquittal); Protocol 7 to the ECHR art 4(1); Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003) para N(8).
[2] HRC General Comment 32 para 54.
[3] Jijón v Ecuador, communication 277/1988 (HRC 1994) para 5.4. In this case the applicant contended that the defendant breached article 14(7) because he was reindicted for the same events that had been the basis of his first trial and conviction.
[4] Babkin v Russia ccommunication 1310/2004 (HRC 2008) para 13.5.
[5] ACHR art 8(4).
[6] Loayza Tamayo v Peru (IACtHR 1997).
[7] Zolotukhin v Russia application 14939/03 (ECtHR 2009) paras 81, 82.
[8] HRC General Comment 32; United Nations Working Group on Arbitrary Detention, opinion 36/1999 (Turkey) para 9, and opinion 24/2003 (Israel) para 30.
[9] HRC General Comment 32 para 57.
[10] Engel and Others v the Netherlands, application 5370/72 (ECtHR 1976) para 82.
[11] Engel and Others v the Netherlands, application 5370/72 (ECtHR 1976) para 82.
[12] HRC General Comment 32, para 57. The European Union is for this purpose to be seen as one entity cf EU Charter of Fundamental Rights art 50.
[13] AP v Italy, communication 204/1986 (HRC 1990) para 7.3. See also ARJ v Australia communication 692/1996 (HRC 1997) para 6.4.
[14] HRC General Comment 32 para 56; Protocol 7 to the ECHR art 4(2).
[15] Almonacid Arellano and ors v Chile (IACtHR 2006) para 154.