The concept of idem in the European courts: extricating the inextricable link in European double jeopardy law

Abstract

The ne bis in idem principle, as defined in European law and human rights instruments, has proven to be a veritable legal quagmire. Almost every aspect of the principle is generating dispute before the European Court of Human Rights and the Court of Justice of the European Union, but the most challenging area is the concept of idem (the same). Recently, the European courts have converged on aform of idemfactum in their double jeopardy jurisprudence, which asks whether a defendant is being re- prosecuted for facts that are "inextricably linked. " In this article I highlight three "doubles" problems that result from this convergence: "doublethink, " "double Dutch," and "double trouble. " These doubles problems serve to demonstrate how the approach advocated by the European courts involves a malleable test which is under-protective in some cases, while over-protective and over-inclusive in others. First, I advocate a narrow and literal interpretation of the concept of idem in the European double jeopardy provisions. Second I reconceptualize the ne bis in idem principle as the component of a right to a fair trial, which facilitates a fairer and more comprehensive resolution of the issues and interests implicated in re-prosecutions for factually related offences.

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