Non bis in idem

Notion(s) Filing Case
Decision - 01.06.2000 SEMANZA Laurent
(ICTR-97-23-A)

74. Article 9 of the Statute of the Tribunal sets forth the principle of non bis in idem. The Appeals Chamber accepts the interpretation of this Article and Article 10 of the Statute of ICTY[1] given by various Trial Chambers of the international criminal Tribunals whereby:

- Article 9 (2) of the Statute sets a limit on the extent to which the Tribunal can prosecute persons who have been tried by a national Court for acts constituting serious violations of international humanitarian law;[2]

- The non bis in idem principle applies only where a person has effectively already been tried. The term "tried" implies that proceedings in the national Court constituted a trial[3] for the acts covered by the indictment brought against the Accused by the Tribunal[4] and at the end of which trial a final judgement is rendered.[5]

[1] These provisions of the ICTY and ICTR Statutes are identical for all practical purposes. Moreover, the non bis in idem principle is set out in paragraph 7 of Article 14 of the International Covenant on Civil and Political Rights in the following terms: "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country".

[2] Case No. ICTR-96-7-D, The Prosecutor v. Thenoeste Bagosora, "Decision on the Application by the Prosecutor for a Formal Request for Deferral", Trial Chamber I, 17 May 1996, para. 13: "Article 9.2 of the Tribunal’s Statute, concerning the principle of non bis in idem, sets limits to the subsequent prosecution by the Tribunal of persons who have been tried by a national Court for acts constituting serious violations of international humanitarian law". See also Case No. ICTR-96-5-D, The Prosecutor v. Musema, "Decisions on the Formal Request for Deferral Presented by the Prosecutor", Trial Chamber I, 12 March 1996, para. 12.

[3] Case No. IT-94-1-T, The Prosecutor v. Duško Tadić, "Decision on the Defence Motion on the Principle of non bis in idem", Trial Chamber II, 14 November 1995, paras. 9-11.

[4] "[…] There can be no violation of non bis in idem, under any known formulation of that principle, unless the accused has already been tried. Since the accused has not yet been the subject of a judgement on the merits on any of the charges for which he has been indicted, he has not yet been tried for those charges. As a result, the principle of non bis in idem does not bar his trial before this Tribunal" (ibid., para. 24.)

[5] Ibid., para. 22.

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ICTR Statute Article 9 ICTY Statute Article 10
Notion(s) Filing Case
Decision on Leave to Appeal - 17.02.2016 ORIĆ Naser
(MICT-14-79)

6.       […] The Appeals Chamber observes that the Rules do not expressly provide for an appeal as of right from a decision of a trial chamber or a single judge applying the non bis in idem principle set out in Article 7 of the Statute and Rule 16 of the Rules.[1] Notwithstanding, Article 7(1) of the Statute prescribes that “[n]o person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the ICTY, the ICTR or the Mechanism” and Rule 16 of the Rules provides for a remedy in the event of a violation of this principle. The Appeals Chamber considers that, in order to give full effect to the statutory principle of non bis in idem, it is necessary to recognize that decisions by a trial chamber or a single judge that affect a party’s right to the protections afforded in Article 7 of the Statute and Rule 16 of the Rules are subject to appellate review as of right.[2] […]

[1] See also Article 12(1) of the Statute and Rule 2(C) of the Rules. 

[2] Cf. Prosecutor v. Radovan Stanković, MICT-13-51, Decision on Stanković’s Appeal against Decision Denying Revocation of Referral and on the Prosecution’s Request for Extension of Time to Respond, 21 May 2014 (“Stanković Decision”), para. 9, and references contained therein.

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MICT Statute Article 7 MICT Rule Rule 16
Notion(s) Filing Case
Decision on Leave to Appeal - 17.02.2016 ORIĆ Naser
(MICT-14-79)

11.     The Appeals Chamber observes that, in the Impugned Decision, the Single Judge compared the acts on the basis of which Orić was charged and tried before the ICTY with the acts for which he is charged in Bosnia and Herzegovina and concluded that these acts differ fundamentally with respect to the alleged victims and the nature, time, and location of the alleged criminal conduct. […] The Appeals Chamber finds that […] Orić fails to demonstrate that the Single Judge incorrectly interpreted the governing law. The ICTR Appeals Chamber’s discussion [of non bis in idem] in Ntakirutimana [referenced by the Single Judge] is consistent with the clear language of the Statute and relevant jurisprudence holding that a defendant shall not be tried before a national jurisdiction for the same acts on the basis of which he has already been tried before the relevant international jurisdiction.[1]

[…]

13.     Similarly unpersuasive is Orić’s contention that the Single Judge erred in dismissing his abuse of process argument because the allegations in the case against him in Bosnia and Herzegovina concern matters of which the ICTY Prosecutor was aware. The Appeals Chamber considers that nothing in Article 7(1) of the Statute prohibits prosecutions in national jurisdictions in such circumstances. Rather, Article 7(1) of the Statute stipulates that a person cannot be tried in a national jurisdiction for acts for which he was already tried in the relevant international jurisdiction. It expressly refers to acts on the basis of which the person was tried, in the sense that a final judgment was rendered,[2] not circumstances in which certain acts may have been investigated but upon which the person concerned was not tried. […]

[1] See, e.g., Laurent Semanza v. The Prosecutor, Case No. ICTR-97-23-A, Decision, dated 31 May 2000, filed 4 July 2001 (“Semanza Decision”), para. 74 (noting that the “non bis in idem principle applies only where a person has effectively been ‘tried’’’ and that the “term ‘tried’ implies that proceedings in the national Court constituted a trial for acts covered by the indictment brought against the Accused by the Tribunal”) (first emphasis in original; second emphasis added). See also Prosecutor v. Miroslav Deronjić, Case No. IT-02-61-S, Sentencing Judgement, 30 March 2004, para. 31 (observing that the plea agreement only concerned crimes committed “during the attack in Glogova” and noting that the accused “can still be indicted for all other possible crimes which he might have been involved, including, e.g. Srebrenica, before [the ICTY] or in other countries which have jurisdiction as well”); Prosecutor v. Duško Tadić a/k/a/ Dule”, Case No. IT-94-1-T, Decision on the Defence Motion on the Principle of Non-Bis-in-Idem, 14 November 1995 (“Tadić Decision”), para. 9 (“Whether characterized as non-bis-in-idem, double jeopardy or autrefois acquit, autrefois convict, this principle normally protects a person from being tried twice or punished twice for the same acts.”) (emphasis added). Cf. The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-AR73, Decision on the Prosecutor’s Appeal concerning the Scope of Evidence to be Adduced in the Retrial, 24 March 2009 (“Muvunyi Decision”), para. 16 (referring to Article 14(7) of the International Covenant on Civil and Political Rights) (“The non bis in idem principle aims to protect a person who has been finally convicted or acquitted from being tried for the same offence again”) (emphasis added).

[2] See Muvunyi Decision, para. 16; Semanza Decision, para. 74. See also Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on the Accused’s Motion for Finding of Non-bis-in-Idem, 16 November 2009, para. 13; The Prosecutor v. Joseph Nzabirinda, Case No. ICTR-2001-77-T, Sentencing Judgement, 23 February 2007, para. 46; Tadić Decision, paras. 9-11, 20, 22, 24, 30.

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MICT Statute Article 7 MICT Rule Rule 16