IL PRINCIPIO DEL NE BIS IN IDEM IN EUROPA

Resumo

This analysis confronts the theme of international ne bis in idem, a syntagma that designates the preclusive efficacy with which a judicial order issued by a judicial body from a specific country is adopted in the various state systems. The introduction deals mainly with a historical emergence of the principle of ne bis in idem in European systems, endeavoring to gather dogmatic profiles and contemporary aspects of the concept. Afterwards, the current international scenario is described, where there is still considerable resistance to acknowledging this rule as a standard of general international law. In the same manner, developments related in particular to international courts and to the so-called European juridical space are underscored. This detailed examination proceeds ab imis: it traces the main normative developments that denote the creation of a European juridical space whose unifying strength lies in the protection of fundamental rights – an aspect that takes on a singular importance in the so-called third pillar, where the existence of a dialect is acknowledged between the various guardians of the heritage of values upon which the European region is founded. The concept of ne bis in idem also converges in the catalogue of principles, which, through gradual normative and jurisprudential evolution, exalts the fundamental rights of the individual and can be deduced from a general principle of trust that safeguards the juridical position of the person who is being prosecuted. This research also seeks to underscore the necessary limits of the rule, perceived in the possible abuse consisting of the choice of a venue conveniens and concerning the rules of due process that, on the other hand, alter the principle in the improper recognition of an unfair judgment. The analysis concludes with an observation about the behavior of the rule acting in the plan of judiciary cooperation, with special attention given to the European arrest warrant, a recently drafted instrument that delivers an edition of ne bis in idem very much removed from the traditional extradition dimension of the principle.