Autor: Goran P. ILIĆ
Publicat în: Journal Of Eastern European Criminal Law no. 1/2017
Revistă disponibilă: aici.
Abstract: This paper dealt with problems of the ne bis in idem principle as one of the basic human rights in criminal proceedings. First, the author analyzed the practice of the European Court of Human Rights in correlation to the concepts of bis and idem. Special attention was devoted to different approaches taken in the interpretation of the concept of the identity of offence (idem), whereby the judgments of the Grand Chamber in the cases Sergey Zolotukhin v. Russia and A. and B. v. Norway were studied thoroughly. After that, the jurisprudence of the Serbian Supreme Court of Cassation and Constitutional Court was portrayed. Then ensued a critical analysis of the Milenković v. Serbia judgment. Based on it, the conclusion was drawn that the guarantees anticipated in Article 4 of the Protocol No. 7 and the states’ obligations based on Article 2 and 3 of the European Convention on Human Rights (ECHR) must be considered as parts of a whole and interpreted so as to promote inner compliance between different provisions of the ECHR. The author deems that in the case Milenković v. Serbia apart from the in substance connection, existed a sufficient temporal connection. Namely, in the concrete case there was no res iudicata at the moment of raising the indictment, so the applicant was not in suspense that the criminal charge would be disputed in front of the competent court, while the length of the proceedings itself did not surpass the criteria of a reasonable duration. In the end, the author raised the question to what extent it will be possible to limit digressing from the criterion established in the case Zolotukhin on tax sanctions, especially if having in mind that the criterion adopted in the judgement A. and B. v. Norway was to a large extent discretionary, thus, appropriate to create further uncertainties in the area belonging to the „core” of human rights.
Keywords: ne bis in idem; a criminal proceedings; the European Court of Human Rights; the European Convention on Human Rights; the Supreme Court of Cassation; the Constitutional Court.
