Practice Relating to Rule 100. Fair Trial Guarantees
Section N. Non bis in idem
Peru’s IHL Manual (2004) defines the term “non bis in idem” as: “The principle that no prisoner of war, civilian internee or any other person in the hands of a party to the conflict may be punished more than once for the same act or on the same account.”
Peru’s IHL and Human Rights Manual (2010) defines the term “non bis in idem” in its Glossary of Terms as: “The principle that no prisoner of war, civilian internee or any other person in the hands of a party to the conflict may be punished more than once for the same act or on the same account.”
Peru’s New Code of Criminal Procedure (2004) states:
No person shall be prosecuted or punished more than once for the same act if the subject and grounds are the same. This principle shall apply to both penal and administrative sanctions. … The exception to this norm shall be the revision by the Supreme Court of a conviction and sentence in the cases explicitly allowed by the present Code.
Peru’s Code of Military and Police Justice (2006) states under the title “Prohibition of Double Jeopardy”: “No member of the military or police shall be prosecuted or penalized more than once if the subject, act and legal basis are the same.”
The Code also states:
The principle of non bis in idem shall be applicable to crimes contained in this Title [of the present Law] and with respect to the competence of the International Criminal Court.
The principle shall not apply if the domestic proceedings
a) are conducted for the purpose of shielding the person concerned from criminal responsibility for a crime within the jurisdiction of the International Criminal Court;
b) were not conducted independently or impartially in accordance with the norms of due process recognized by international law or were conducted in a manner which, in light of the circumstances of the case, was incompatible with an intent to bring the person concerned to justice.
Peru’s Law on the Disciplinary Regime of the Armed Forces (2007) states: “Non bis in idem.
No person shall be subsequently or simultaneously subjected to a criminal or administrative sanction for the same act if the subject, act and grounds are the same.”
Peru’s Military and Police Criminal Code (2010), which includes provisions on crimes under international humanitarian law, states in the Preliminary Title: “No member of the police or the military shall be criminally prosecuted or punished more than once in the Military and Police Court for the same subject, act and on the same legal basis.”
The Code also states:
Regarding crimes included in the present Title [namely crimes committed in states of emergency and in violation of international humanitarian law] and regarding [crimes within] the jurisdiction of the International Criminal Court, the principle Non Bis in Idem must be applied.
This principle does not apply if the domestic proceedings:
a. Have the purpose of shielding the accused from criminal responsibility for a crime within the jurisdiction of the International Criminal Court.
b. Have not been independent or impartial in accordance with the proper procedural guarantees recognized by international law or have in any way, depending on the circumstances of the case, been incompatible with the intention of bringing a person to justice.
In 2006, in the Lucanmarca case, the Second Provisional Criminal Chamber of Peru’s Supreme Court of Justice stated:
The ne bis in idem
principle consists of the prohibition to prosecute someone twice for the same facts. The principle has two components, namely a substantive and a procedural one. The former involves a prohibition to punish a person twice for the same facts. The latter prohibits conducting two criminal proceedings against the same person and for the same facts, even if the legal characterisation of the facts is different.
In 2007, in the Bustios Saavedra case, the National Criminal Chamber of Peru’s Supreme Court of Justice stated:
The principle of non bis in idem
is recognised under Article 139.13 of the Constitution and is based on a prohibition to reopen proceedings after a final judgment was rendered or on the prohibition against double jeopardy which may be consecutive or simultaneous. This constitutional provision also states that the stay of proceedings also has the effect of res judicata
. This principle prohibits a state from prosecuting a person twice for the same offence or acts.
The Court also stated:
The Constitutional Court has established that no fundamental right is unlimited and that no fundamental right can subordinate other fundamental rights, principles or values also protected by the Constitution. Exceptions to the non bis in idem principle are based on states’ obligation to investigate, prosecute and punish. A person’s right to be protected against successive proceedings initiated by the state must be taken into account together with the requirement that all perpetrators of violations of international human rights law be brought to justice.
More specifically, when the right of an accused not to be subjected to multiple proceedings for the same crime is set against the right of a victim to obtain redress for grave violations of human rights, the state must attempt to diligently fulfil its obligation to investigate, prosecute and punish. International law accepts an exception to the non bis in idem
principle if justice has been administered illegitimately. In international law, there are three types of proceedings that are considered sufficiently illegitimate so as to allow a second trial: a) trials that were neither impartial nor independent; b) trials aimed at protecting the accused from international criminal responsibility; and c) trials that were not conducted with due diligence. International law allows military or police personnel previously acquitted by a military court for serious violations of human rights to be put on trial before civilian courts. Proceedings for violations of human rights conducted by military courts do not satisfy the standards of impartiality, independence or competence established by international law and consequently the principle of ne bis in idem
is not applicable.