Ne bis in idem and Multiple Sanctioning Systems: A Case Law Study of the European Court of Human Rights and the Court of Justice of the EU

Description

The aim of the book is to resolve the question of whether multiple sanctioning systems are contrary to the ne bis in idem under the regulation provided by Protocol 7 to the ECHR and the EU Charter of Fundamental Rights. The first part is a comparative study regarding the lawfulness of multiple sanctioning systems under the ne bis in idem, studying the evolution and the current state of the case law of the United States Supreme Court, the Canadian Supreme Court, the Spanish Constitutional Court, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The second part of the book critically analyses three problems with the case law of the ECtHR and the CJEU. Part three deals with reconceptualizing the prohibition of multiple punishment and the prohibition of multiple prosecutions. Finally, the fourth part addresses other possible protections against multiple sanctioning systems. Two other safeguards that limit multiple sanctioning systems are the prohibition of disproportionate sanctions and the right to be tried within a reasonable time. Contents Chapter 1: Introduction References Part I: International and Comparative Case Law Regarding the Lawfulness of Multiple Sanctioning Systems Under the Ne Bis in Id... Chapter 2: Case Law of the Supreme Court of the United States 2.1 Brief History of the Double Jeopardy Protection 2.2 Protections Afforded by the Double Jeopardy Clause and Underlying Policies 2.3 ``Same Offence´´ Requirement 2.3.1 The Same Elements Test: Blockburger v. United States 2.3.2 Greater Inclusive Offence and Lesser Included Offence: Brown v. Ohio 2.3.3 ``Same Offence´´ Requirement in Contexts of Multiple Prosecutions 2.3.3.1 The Road to Grady: From Brown v. Ohio to Illinois v. Vitale 2.3.3.2 The Same Conduct Test: Grady v. Corbin 2.3.3.3 Returning to the Blockburger Test: United States v. Dixon 2.4 The Dual Sovereignty Doctrine 2.4.1 The Evolution of the Dual Sovereignty Doctrine 2.4.1.1 The Development of the Doctrine: United States v. Lanza 2.4.1.2 Solidification of the Dual Sovereignty Doctrine: Bartkus v. Illinois and Abbate v. United States 2.4.1.3 Successive Prosecutions by Different States: Heath v. Alabama 2.4.2 Definition of Sovereign for the Purposes of Double Jeopardy 2.4.3 The Sham Exception 2.4.4 The Petite Policy 2.5 Protection Against Multiple Prosecutions for the Same Offence 2.5.1 The Moment from Which the Defendant Is in Jeopardy 2.5.2 Second Prosecution Following an Acquittal 2.5.3 Second Prosecution Following a Conviction 2.6 Protection Against Multiple Punishments for the Same Offence 2.6.1 Protection Against Multiple Punishments in a Single Prosecution 2.6.2 Parallel Criminal and Non-criminal Sanctions for the Same Facts 2.6.2.1 The Early Cases: United States v. La Franca and Various Items of Personal Property et al. v. United States 2.6.2.2 The Statutory Construction Analysis of Helvering v. Mitchell and Its Subsequent Application 2.6.2.3 The ``Kennedy Criteria´´: Kennedy v. Mendoza-Martinez 2.6.2.4 The Two-Prong Analysis: United States v. Ward 2.6.2.5 The Expansion of the Ward Analysis: United States v. Halper 2.6.2.6 The Aftermath of Halper: Austin v. United States and Department of Revenue of Montana v. Kurth Ranch 2.6.2.7 Reversing the Direction: United States v. Ursery 2.6.2.8 Overruling Halper and Returning to Ward: Hudson v. United States 2.7 Issue Preclusion as a Constitutional Requirement of the Double Jeopardy Clause 2.7.1 General Remarks on Issue Preclusion 2.7.2 Issue Preclusion in Criminal Proceedings: Utilisation of a Judgment of Acquittal in Subsequent Criminal Proceedings 2.7.2.1 The Early Cases: United States v. Adams and Sealfon v. United States 2.7.2.2 The Recognition of the Constitutional Status of the Doctrine of Issue Preclusion: Ashe v. Swenson 2.7.2.3 The Case Law After Ashe v. Swenson: Extensions and Restrictions 2.7.3 Issue Preclusion Between Criminal and Civil Proceedings: Utilisation of a Judgment of Acquittal in Subsequent Civil Proc... 2.8 Summary of the Case Law of the Supreme Court of the United States References Chapter 3: Case Law of the Supreme Court of Canada 3.1 Charged with an Offence 3.1.1 Application of the Above Criteria to Disciplinary Proceedings 3.1.2 Application of the Above Criteria to Civil Monetary Sanctions 3.1.3 Application of the Above Criteria to Civil Forfeiture Mechanisms 3.2 ``Same Offence´´ Requirement 3.3 Summary of the Case Law of the Supreme Court of Canada References Chapter 4: Case Law of the European Court of Human Rights 4.1 Criminal Nature of the Proceedings: The ``Engel Criteria´´ 4.2 The ``Same Offence´´ Requirement 4.2.1 The Different Approaches Before Zolotukhin v. Russia 4.2.2 Zolotukhin v. Russia and the Current Interpretation 4.3 The ``Final Decision´´ Requirement 4.4 The ``Duplication of Proceedings´´ Requirement 4.4.1 The Case Law Before A and B v. Norway 4.4.2 The Development of the ``Sufficiently Close Connection in Substance and Time´´ Exception: A and B v. Norway 4.4.3 The Case Law After A and B v. Norway 4.5 The Exception of the Second Paragraph of Article 4 of Protocol 7 4.6 Summary of the Case Law of the European Court of Human Rights References Untitled Chapter 5: Case Law of the Court of Justice of the European Union 5.1 Criminal Nature of the Proceedings 5.2 The ``Same Offence´´ Requirement 5.3 The ``Final Decision´´ Requirement 5.4 Duplication of Proceedings as a Legitimate Restriction of the Ne Bis in Idem 5.5 Summary of the Case Law of the Court of Justice of the European Union References Part II: Critical Analysis of the Case Law of the ECtHR and the CJEU Regarding the Lawfulness of Multiple Sanctioning Systems ... Chapter 6: Lawfulness of Multiple Sanctioning Systems Under the Ne Bis in Idem: Four Different Approaches to Resolve the Same ... 6.1 First Problem: Lack of Clarity Regarding the Rationale of the Ne Bis in Idem 6.2 Second Problem: The Dead End of the Thesis of the Criminal Nature 6.2.1 Does the Current Approach of the Criminal Nature Thesis Produce Predictable Results? 6.2.2 The `All-or-Nothing´ Reasoning of the Current Approach 6.3 Third Problem: Incorporation of Criteria Unrelated to the Rationale of the Protection Against Multiple Prosecutions 6.3.1 Vagueness of the Factors Listed by the ECtHR and the CJEU 6.3.2 Duplications in the Collection and the Assessment of the Evidence 6.3.3 Overlap Between the Prohibition of Multiple Prosecutions and the Prohibition of Disproportionate Sanctions References Part III: Reconceptualizing the Prohibition of Multiple Punishments and the Prohibition of Multiple Prosecutions Chapter 7: Understanding Multiple Sanctioning Systems: Models of Organisation 7.1 Subsidiary Model 7.2 Complementary Model References Chapter 8: Overcoming the Dead End of the Thesis of the Criminal Nature References Chapter 9: Reconceptualising the Ne Bis in Idem 9.1 Two Competing the Ne Bis in Idem Models 9.1.1 First Model: Substantive the Ne Bis in Idem 9.1.2 Second Model: Procedural the Ne Bis in Idem 9.2 Analysis of the Protection Against Multiple Punishments and the Protection Against Multiple Prosecutions 9.2.1 Protection Against Multiple Punishments 9.2.1.1 Rationale of the Prohibition of Multiple Punishments 9.2.1.2 Interpreting the `Same Offence´ Requirement 9.2.1.3 Scope of Application of the Prohibition of Multiple Punishments 9.2.1.4 Consequences of a Violation of the Prohibition of Multiple Punishments 9.2.2 Protection Against Multiple Prosecutions 9.2.2.1 Rationale of the Prohibition of Multiple Prosecutions 9.2.2.2 Interpreting the `Same Offence´ Requirement 9.2.2.3 Scope of Application of the Prohibition of Multiple Prosecutions 9.2.2.4 Consequences of a Violation of the Prohibition of Multiple Prosecutions 9.3 Summary of the Proposed Alternative Interpretation References Part IV: Looking Beyond the Ne Bis in Idem: Recalling the Prohibition of Disproportionate Sanctions and the Right to be Tried ... Chapter 10: Looking Beyond the Ne Bis in Idem 10.1 The Prohibition of Disproportionate Sanctions 10.2 The Right to Be Tried Within a Reasonable Time References Chapter 11: Final Remarks Table of Cases