The principle of ne bis in idem stands for the prohibition against trying or punishing someone twice for the same offence. This important legal principle provides protection against repeated prosecution following a final acquittal or conviction.
What does ne bis in idem entail?
The term literally means 'not twice for the same'. This principle, enshrined in Article 68 of the Criminal Code and Article 4 of Protocol 7 to the ECHR, ensures that a person cannot be prosecuted again for a case that has already been irrevocably concluded.
When does this principle apply?
The ne bis in idem principle applies under the following conditions:
- A final judgment has been rendered (acquittal, conviction or discharge from prosecution).
- It concerns exactly the same event (same time, location and act).
- It involves the same person as the suspect.
How is 'the same act' defined?
It concerns the core of the case: are the facts essentially identical? For example, a traffic incident cannot first be prosecuted as an administrative offence and later as a crime if it involves the same action.
Exceptions to the principle
In some situations, ne bis in idem does not apply, such as:
- Revision of a case upon discovery of fraud in the original proceedings.
- If new, crucial information emerges that was previously unknown.
- When the previous case did not involve formal prosecution.
Penalty order and ne bis in idem
If the Public Prosecution Service imposes a penalty order, this principle also applies. The case cannot be reopened unless objection is lodged against the order.
Cross-border application
Within the EU, ne bis in idem is also recognised internationally via the Schengen Agreement. An acquittal in, for example, Belgium means that you cannot be prosecuted again in the Netherlands for the same act.
Frequently asked questions about ne bis in idem
Can I be prosecuted again after an acquittal?
No, after an irrevocable acquittal or conviction, ne bis in idem protects you against new prosecution for the same act. Exceptions are possible in cases of fraud in the proceedings or new evidence that was previously unknown.
What if I have received a penalty order?
A penalty order from the Public Prosecution Service is final and prevents further prosecution for the same act, unless you lodge an objection. In that case, the matter may still come before the court.
Does this principle also apply to an acquittal abroad?
Yes, within the EU, the Schengen Agreement prevents you from being prosecuted in another EU country for an act for which you have already been tried. Outside the EU, this depends on local legislation.
What exactly does 'the same act' mean?
It concerns identical circumstances: the same act, time and place. A similar situation is not enough; the facts must match exactly.
Can a case be reopened with new evidence?
In principle no, but in exceptions such as fraud in the original case or new, essential evidence, a case may be reviewed again.