NGOs under European Convention on Human Rights / Tymofeyeva

2.16 Right not to be tried or punished twice (Article 4 of Protocol No. 7) Article 4 – Right not to be tried or punished twice 1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention. Article 4 of Protocol No. 7 embodies the principle that a person may not be tried or punished again in criminal proceedings under the jurisdiction of the same state for an offence for which he or she has already been finally acquitted or convicted 1271 ( non bis in idem ). It must be stressed that this is not confined to the right not to be punished twice, but also concerns the rights not to be tried twice. 1272 When a single criminal act can be separated into several criminal offences, for example, the illegal transportation of drugs, punishable under a few legal provisions, 1273 this Article does not preclude the separate offences being tried by the same court. 1274 The expression “under the jurisdiction of the same State” sets limits on the application of the Article in the way that it is relevant only on the national level. However, several conventions exist that permit the application of the principle at the international level. For instance, the European Convention on the International Validity of Criminal Judgments, 1275 the European Convention on Extradition, 1276 the European Convention on the Transfer of Proceedings in Criminal Matters. 1277 If an applicant Article 34 NGO was established under the laws of Costa Rica but exercised its activities in one of the CoE member states that assumingly breached the rights of the applicant company, it is also possible in the course of evaluation to take into account the Inter-American Convention on Extradition. 1278 The second paragraph provides that the principle of ne bis in idem does not prevent a case from being re-opened if there is evidence of new or newly discovered 1271 Para. 26 of the Explanatory Report to Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms. 1272 HARRIS, 2009, cited above, p. 752. 1273 The applicant was ordered to imprisonmen by default for failure to pay customs fines in addition to prison sentences for drug trafficking that resulted in two consecutive terms of imprisonment for the same offence. 1274 Göktan v. France , no. 33402/96, § 52, ECHR 2002-V. 1275 European Convention on the International Validity of Criminal Judgments. The Hague, 28 May 1970. 1276 European Convention on Extradition. Paris, 13 December1957. 1277 European Convention on the Transfer of Proceedings in Criminal Matters. Strasbourg, 15 May1972. 1278 Inter-American Convention on Extradition. Caracas, Republic of Venezuela, on 25 February 1981.

246