Ne bis in idem-regeln ur ett svenskt och internationellt perspektiv

Sammanfattning: This paper deals with the question of the ne bis in idem rule, known in the Common Law Countries as 'double jeopardy'. The rule's purpose is to protect a person from being prosecuted or sentenced for an offence a second time, for which he or she had already been tried, whether convicted or acquitted. The paper comprises two parts: the first is related to the question of the ne bis in idem rule in the Swedish Criminal Code and its validity within the European Union&semic the second is related to the ne bis in idem rule in international criminal law and amnesty procedures. Both parts deal with the question of traditional judicial procedure and alternative judicial procedure, such as out of court settlements, 'deals' and amnesty decisions of a truth and reconciliation commission. Although the ne bis in idem rule can be traced back to Roman law, it did not feature in the Swedish Criminal Code until 1972. Today, the rule could claim universal acceptance, particularly after the establishment of the International Criminal Tribunals for former Yugoslavia (ICTY) and Rwanda (ICTR) and the International Criminal Court (ICC). The Swedish ne bis in idem rule has changed over the years due to ratifications of different international conventions and protocols, refining its use. In November 2002, the Commission on International Criminal Law, working under the Swedish Justice Department, suggested among other things a new phrasing of the Swedish ne bis in idem paragraph, which has been warmly welcomed. If the legal system of one country breached the ne bis in idem rule, there is not much that another country, could do. It could try to encourage the first country to accept the verdict through diplomatic channels, or perhaps, impose economic or other sanctions. This opens the question of extradition and the ways a country can refuse to extradite a citizen. However the position of the 'political offence exception' has been left somewhat vague after September 11, 2001. There is also the possibility for a person who faces a criminal charge to make a 'deal' or agree an out of court settlement with the prosecutor instead of facing trial. These settlements have recently been accepted by the Court of Justice of the European Communities of falling within the ne bis in idem rule in the Schengen countries. That is, the ne bis in idem rule also applies to cases where the judgement is not made by a court. The ne bis in idem rule is found both in the statute of ICTY and ICTR as well as in the statute of the ICC. Even though the rule is basically the same, its application differs. The ICC can only rule in a case once the trial in the national court has rendered its final judgement. Due to this, the Court has to prove that the national trial was unfair to be able to reopen the case. The question of amnesty proceedings barring another court from passing judgement in the case has also been investigated in this paper. My conclusion in this matter is that an amnesty given by a truth and reconciliation commission should bar the International Criminal Court from reopening the case, under the condition that the hearings in the truth and reconciliation commission was impartial and fair.