Ne Bis in Idem as a Defence Right and Procedural Safeguard in the EU

Abstract

This paper will focus on the ne bis in idem principle, in the AFSJ as a defence right and argues that emancipating this principle from the conflict of jurisdictions debate will increase the status of defence rights in the EU and enhance its dimension as a procedural safeguard.

Article 82(2), b) of the TFEU paves the way to harmonisation of procedural safeguards, on an EU level, and can also be understood as a means to create a “common legal grammar” between Member States. Consequently, European legislation regarding ne bis in idem would not only bring legal certainty but it also contributes to diminishing the grounds of refusal as far as mutual recognition legal instruments are concerned. The need for a deontic European model regarding defence rights and procedural safeguards is also in discussion as it would serve as a counterweight between the two dimensions of European integration, in the AFSJ: freedom and security.