Relationship between criminal and administrative enforcement and sanctioning for environmental crimes
Ne bis in idem principle
The right not to be prosecuted or punished twice for the same offence (ne bis in idem) is a fundamental principle of criminal law. At the European level, the ne bis in idem principle is enshrined in Art. 4 of Protocol No. 7 to the ECHR and in Art. 50 of the EU Charter of Fundamental Rights. Under both legal texts, the following four elements are necessary to trigger its application: 1) two sets of proceedings of criminal nature (bis), 2) concerning the same facts (idem), 3) against the same offender, and 4) a final decision.
Until 2016, the jurisprudence of both courts on ne bis in idem aligned towards a higher level of protection, covering both administrative and criminal punishment. In practice, however, several countries provide for a combination of administrative and criminal responses to similar violations of substantive regulations. Not only have they introduced a combined system of criminal and administrative liability (see above) but a combination of the two serves for adequate protection of the environment. In some countries, more administrative bodies have the competence to deal with the unlawful act, each on different grounds. For example, destruction of a riverbank can be punished by both the water protection authority and the nature protection authority, each acting on a different legal ground. This fragmented architecture of enforcement can be justified by the fact that each type of sanction pursues a different goal, that administrative penalties better comply with demands of speediness and effectiveness, and that previous administrative sanctions would prevent otherwise criminal investigations against organised criminal networks.
Starting with the landmark decision of the ECtHR in A and B v Norway (24130/11 and 29758/11), followed most notably by the three CJEU 2018 decisions in C-524/15, Menci, C-537/16, Garlsson, C-596/16 and C-597/16, Di Puma and Zecca, all dealing with the so-called double-track enforcement regimes, the ne bis in idem principle has been seriously modified.
The courts concluded that the duplication of punitive sanctions does not necessarily violate the ne bis in idem principle provided there is a precise mechanism of coordination between criminal and administrative enforcement at national level, e.g. a mechanism precluding the continuation of administrative proceedings if there are some elements that justify the application of criminal law, and vice-versa.