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13 Right not to be Subject to Double Jeopardy

From: The Right to a Fair Trial in International Law

Amal Clooney, Philippa Webb

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 20 October 2021

Res judicata — Human rights remedies — Ne bis in idem — Reservations and exceptions — Waiver — Remedies — Remedies and costs

This chapter assesses the right not to be subject to double jeopardy, which protects against repeated trial or punishment for the same offence or conduct and ensures respect for the principle of finality in criminal proceedings. It is a crucial protection for the defendant because the possibility of repeated prosecutions or punishment leads to anxiety and stress and generates uncertainty in the wider community. The scope of the protection is therefore important: if it is too narrow, applying only to a second prosecution based on identical charges, prosecutors can still ‘throw the book’ at a defendant by charging him with disparate offences for the same conduct. But if the scope is too broad, it could prevent a defendant who has been unfairly convicted in a first proceeding beset by due process violations from having a new trial. An over-broad scope may also prevent the prosecutor from pursuing other charges and therefore deny victims an effective remedy. The issues that have proved to be the most controversial among international bodies regarding the right not to be subject to double jeopardy have been whether the right only applies to the same offence or also to the same conduct; whether it is limited to a single state’s jurisdiction; the requirement of a ‘final’ verdict; and the definition of the exceptions to the right.

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