The Passive Personality Principle and the General Principle of Ne Bis in Idem

This paper demonstrates the interest which a victim of a transnational crime may have in moving proceedings across the border. It also considers the means with which this can be done. By virtue of the passive personality principle, a Swiss victim can move proceedings back to Switzerland for a civil claim which would not otherwise have a forum in Switzerland. Further, it is suggested that there is a conflict between the passive personality principle and the prohibition of double jeopardy. This paper argues for a restrictive interpretation of the passive personality principle and a broadening of the principle of ne bis in idem.


Introduction
Historically, criminal proceedings have been in the hands of victims. It was largely left to them to seek punishment for the offender. Like a pendulum, this position shifted when, for good reason, the state seized criminal proceedings. The victim is instead akin to a piece of evidence. 1 However, over the last few decades, victims' rights in national as well as international criminal proceedings have again changed and their position has been strengthened as well. 2 To keep the image of the pendulum: it has now swung back. However, this begs the following question: has it swung too far? Besides the ongoing efforts of the EU to strengthen the rights of victims, 3 a comparison of the laws in force indicates a wide variance in the actual protection offered to victims. 4 As a result, the position of a victim might be stronger in his country of origin than in the country where the crime was actually committed. Therefore, in 'transnational crimes' 5 victims might wish to move the proceedings over the border to their country of origin, if this is at all possible. Such interests can, for example, include the possibility of adding a civil claim based on the offence to the criminal proceedings, 6 and also the other rights offered to a party 7 in the criminal proceedings which might be beneficial to the victim. By using the somewhat controversial 8 passive personality principle, victims do actually have -in some countriesthe possibility to bring criminal proceedings home. 9 Strengthening the position of the victim has also had an influence on the rights of the accused. For example, moving proceedings can lead to several trials and convictions in different countries for the same act. Therefore, the new role of victims has to be taken into account when talking about the prohibition of double jeopardy 10 and the question of whether or not there is a cross-border influence on this principle.
To illustrate this dilemma, the scenario below highlights the different questions which are likely to arise. For ease of reference, this scenario is referred to as the 'Entrepreneur X scenario' .
The Entrepreneur X Scenario Entrepreneur X, a Dutch national, runs a company with its headquarters in the Netherlands and a production site in Nigeria. Due to his mismanagement, environmental damage such as polluted fish ponds, farmland, forests and drinking water occur in Nigeria. Indeed, several people, two of them Y and Z who are Swiss, became seriously ill after drinking polluted water and eating intoxicated fish. Y and Z, who do not know the national language of Nigeria, are seeking to have criminal proceedings commenced in Switzerland. However, not only may Switzerland have an interest in passing a judgment on X, but Nigeria or maybe even the Netherlands might also be interested based on the principle of territoriality in the case of Nigeria or based on the active personality principle in the case of the Netherlands.
Various jurisdictions equip supposed victims with certain tools within criminal proceedings. 11 Besides the attempts of the EU to strengthen victims' rights, 12 also the Swiss regulation has enhanced them. Whilst it started with the implementation of the Victim Support Act in 1993, 13 victims have been increasingly vested with exhaustive rights during the last two decades. 14 This leads to the situation that Switzerland provides victims with further-reaching rights than most other countries. Hence, the Swiss regulation will be used as an example to extract a possible principle as to how the influence of victims on the prohibition of double jeopardy in transnational crime can be limited.
Therefore, it will be argued along the Entrepreneur X scenario which interest victims have in seeking to move proceedings to Switzerland. Furthermore, the article will discuss under which premises the passive personality principle can be invoked and which influence the principle of ne bis in idem has in cross-border crimes. While it is acknowledged that the scenario also raises issues as to the hierarchy of the different claims to jurisdiction, that issue is beyond the scope of this paper.

Victims' rights
Over the last few decades, the pendulum of victims' rights in criminal proceedings has -at least in Europe -swung back. In most European criminal proceedings the position of the victim has shifted from being an object to being a subject; the victim is no longer just a piece of evidence. Nonetheless, the actual status and the rights associated with this position still vary from one country to another. In Switzerland, for example, victims' rights have a strong position within criminal proceedings. Their actual rights will be discussed briefly in this section.
To start with, the following has to be taken into consideration: In Switzerland, there is a distinction between a 'victim' and a 'person suffering harm' . 15 The latter is regarded as one who has had certain rights violated. 16 This can be a natural person as well as a legal entity. 17 A 'victim' , on the other hand, is an aggrieved party who has been violated physically, sexually or psychologically. 18 Therefore, a victim stricto sensu can only be a natural person. 19 Still, the victim stricto sensu as well as the person suffering harm have to declare that they want to participate in the proceedings either as a criminal claimant (Strafkläger) and/or a civil claimant (Zivilkläger), 20 otherwise without such a declaration, they are not a party to the criminal proceedings 21 and are therefore just regarded as being '[an]other person involved in the proceedings' . 22 The demand for prosecution 23 is regarded as such a declaration which means that the victim has the position of a party in the proceedings filing the complaint. 24 Once they hold the position of a party to the criminal proceedings, the rights of the two categories only vary to a minor extent. Both can introduce a civil claim based on the offence into the criminal proceedings. 25 One of the main advantages of this for a victim is the less onerous burden of proof, and lower costs than in ordinary civil proceedings. 26 Another benefit is that the public prosecutor is responsible for gathering the necessary evidence for the civil claim if the case is thereby 'not unduly extended or delayed ' . 27 As a consequence, the victim has greater means to access evidence than he or she would have in normal civil proceedings.
As a party to proceedings, a victim would also have a right to a fair hearing and consequently also the possibility to access the records. 28 But as a victim stricto sensu, there are some further rights which are not necessarily connected to his or her position as a party to the proceedings. 29 For example, the public can be excluded from the hearings if the interests of the victim, such as the right of privacy, 30 are in need of protection. 31 Furthermore, special protection measures are provided for victims in a strict sense. According to Article 152 S-CPC, victims have the right not to be confronted by the accused unless the right to be heard cannot be guaranteed in another way or the interests of the prosecution prevail. 32 In cases involving victims of a sexual offence, a confrontation against the will of the victim can only take place in order to uphold the right of the defence to be heard. 33 Besides these procedural rights, further rights for the victim stricto sensu are laid down, as in most other countries, 34 in the Victim Support Act. 35 They are supported in different ways, such as counselling and immediate assistance, long-term assistance, a contribution to the costs for assistance from third parties, compensation for financial loss, satisfaction for pain and suffering as well as the remission of procedural costs. 36 Both the Victim Support Act, as well as the S-CPC, require the prosecuting criminal authorities to inform the victim about victim aid services. 37 If the victim agrees, the prosecutors must submit his or her name and address to a counselling centre. 38 The victim aid services will then get in touch with the victim and assist him or her as provided by the Victim Support Act.
One of the great advantages of the Swiss legal system is that financial aid will be paid even if the offender is not able to reimburse the costs according to the Victim Support Act. In other words: the victim has a claim against the state. 39 However, according to the Swiss Federal Court, this financial aid is not a liability of the state. 40 Therefore, satisfaction according to the civil law has to be set apart from satisfaction according to the Victim Support Act. 41 Hence, under some circumstance, the victims' aid services can deviate from the decision of the civil or criminal judge. 42 Nonetheless, the advantages which are provided by the Victim Support Act are still apparent and show that the pendulum has indeed swung very far.
But a legal interest is not the only reason to move proceedings across a border. There might also be reasons of convenience such as linguistic hurdles or a lack of knowledge of the legal system in the place where the crime was committed. 43 Excessive travelling costs must also be considered.
As a result, the reasons for moving proceedings across a border can vary considerably. The most likely reasons for a move to take place are either legal or practical; for example, linguistic barriers or travelling distances. However, if the victim is Swiss, the strong position they hold in the proceedings might outweigh any other advantages. For example, in the scenario involving Entrepreneur X discussed above, the Swiss victims may wish to pursue the prosecution in Switzerland on the basis of a lack of knowledge of the local language. Furthermore, travelling from Switzerland to Nigeria on several occasions to take an active part in the proceedings may be inconvenient and expensive. Moreover, the Swiss legal system does allow a case to take place at home and it offers extensive rights for the victims.

Moving proceedings across the border
Y and Z may want to be parties in the criminal proceedings and to profit from the assistance granted by the Victim Support Act. Thus, they may wish to move the criminal proceedings back home. Therefore, the question arises as to whether or not Swiss jurisdiction can be invoked (3.1.). Furthermore, another line of discussion is what a victim has to do in order to commence an investigation in Switzerland and what the prosecuting criminal authorities have to take into consideration (3.2.).

Establishing jurisdiction in criminal law by using the passive personality principle
Jurisdiction is inherently linked to state sovereignty. Traditionally, a distinction is made between the jurisdiction to prescribe, the jurisdiction to adjudicate and the jurisdiction to enforce. 44 Part of the latter is not only the rendering of the judgment, but also the conduct of the investigations. 45 The starting point for the establishment of jurisdiction in criminal law is usually -as generally invoking jurisdiction on foreign soil is controversial 46 -the territorial principle, 47 but there are also other recognised genuine links which enable a state to establish jurisdiction. 48 However, this article will merely deal with the passive personality principle as a possible tool to move proceedings across the border.
Since the passive personality principle is somewhat controversial, this section will first look at the question of its validity according to international law (3.1.1.) before turning to the regulation according to Swiss Criminal Law (3.1.2.).

Validity according to international law
Under international law, the principle of non-interference prohibits any intervention in the domestic affairs of another state. 49 This principle raises the question whether some assertions of jurisdiction over a crime committed on foreign territory are in breach of international law. In this context, the passive personality principle seems to interfere with the principle of non-interference as where a state establishes jurisdiction over a crime committed on foreign soil on the basis of the nationality of the person affected, this link seems to be a rather insufficient reason to justify interference with another state's sovereignty. 50 Therefore, the passive personality principle is controversial under international criminal law. 51 Some authors further criticise the passive personality principle on the basis that it is 'the most aggressive basis for extraterritorial jurisdiction' 52 and that the perpetrator cannot anticipate which law would be applicable since he often does not know the victim's nationality. 53 On the other hand, the protection of one's own citizens is a well-accepted principle in international law. 54 Furthermore, the International Court of Justice (ICJ) noted in the case of the S.S. Lotus that there is no 'general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory' . 55  principle to establish jurisdiction 56 and it is also laid down in various international conventions. 57 However, since it is controversial, and there is a variety in state practice, it arguably cannot be considered to be customary international law. 58 As the passive personality principle and its legitimacy are controversial, some authors probe the question whether there is a need to narrow its application by stipulating a dual criminality requirement before it can be applied. 59 However, this would still be insufficient. In addition to dual criminality, a legitimate interest should also be required in those cases in which a proceeding has already taken place. 60 Concluding, the passive personality principle cannot be considered to be customary international law. However, under the reasoning of the ICJ in the case of S.S. Lotus and the fact that several states apply the passive personality principle it has to be considered as a legitimate link to exercise jurisdiction over a crime committed abroad.

Regulation according to the Swiss Criminal Code
As pointed out, the passive personality principle is a legitimate link to exercise jurisdiction even over a crime committed abroad. Still, the question arises as to which conditions have to be met so that Switzerland can claim jurisdiction over Entrepreneur X as Y and Z -both Swiss citiziens -have become ill after drinking polluted water.
According to the passive personality principle, which is laid down in Article 7 S-CC, jurisdiction can be established if the offence was committed against a Swiss national and if the following requirements are met: First of all, the victim of the offence has to be Swiss. 61 This can be a natural person, of course. Whether a corporate entity can also be considered to be 'Swiss' , remains contentious. 62 In any event, nationality is determined as at the time of the commission of the offence. Possible dual citizenship is -according to the prevailing opinion in Switzerland -of no significance. 63 However, in this context it needs to be pointed out that the passive personality principle, according to Swiss law, is not connected to the wording of the S-CPC. The Swiss Criminal Code says nothing as to whether the 'Swiss' national has to be a victim stricto sensu or not. 64 A harmonization of the two statutes would be desirable. 65 In essence, then, there are four further limitations on the passive personality principle. First, it is only applicable if the offence is liable to prosecution at the place of commission or the place is not subject to criminal law jurisdiction. 66 The second criterion is therefore dual criminality. 67 One of the reasons for this condition is the principle of legality, 68 as only then can a guilty mind be expected. 69 If a crime has been committed on different territories, the criterion of dual criminality is fulfilled if the act is punishable in one of those places. 70 This has to be decided according to the legal situation at the time when the crime was committed. 71 Second, the person concerned has to be in Switzerland or has to be extradited to Switzerland due to the offence. It is also sufficient that the alleged offender is in Switzerland of his own volition. 72 On the other hand, if the accused leaves the country, there is no statutory basis on which to prosecute the person in question. 73 Third, the offence needs to be one which allows extradition according to Swiss Law. The relevant question is whether or not extradition to the place of commission is possible. 74 This merely has to be determined according to the Mutual Assistance Act; 75 the existence of an extradition treaty with the other state is irrelevant. 76 The reasons for a denial of extradition are insignificant 77 and the lack of an extradition request has no influence on that issue either. 78 Another question which arises is whether a request for extradition has priority over a proceeding which has already been commenced in Switzerland. Some commentators argue that due to the territoriality principle such a request has priority. Furthermore, Switzerland has a duty -according to this opinion -to prosecute if it does not wish to extradite the individual to the state where the offence was committed. 79 On the other hand, the Swiss Federal Court has pointed out that the authorities can waive such an inquiry if it is obvious that there will not be a fair process and therefore the interests of the victim will not be adequately dealt with. 80 Finally, the principle of disposition (Erledigungsprinzip) may intervene. According to that principle, no further prosecution in Switzerland is feasible if the person was acquitted or the sentence has been served or waived or has prescribed. 81 Whether a suspended sentence has the same effect is often discussed and remains controversial. 82 As the principle of deduction (Anrechnungsprinzip) in Article 7(5) S-CC determines that a partly served sentence has to be taken into account at the sentencing stage in Switzerland, 83 such a circumstance cannot invoke the principle of disposition. It should solely be considered under this principle if the period of probation has been fulfilled. 84 If the sentence has not been fully served and/or the probation has not been fulfilled, the principle of deduction takes place, and therefore a prior sentence will just be taken into consideration. 85 To refer back to our scenario, some of the victims were Swiss. Bodily harm is most certainly liable to prosecution in Nigeria as well. Furthermore, in Switzerland the penalty is -in cases of common assault -a custodial sentence of up to 3 years. 86 Switzerland could therefore claim jurisdiction if X was in who points out that the question whether there is dual criminality or not, cannot just be decided according to the elements of certain crimes. Instead, a distinction has to be made between substantive culpability, the procedural prosecution and the actual prosecution of a commitment. Whilst the first point (including grounds for justification and grounds for an excuse) has undoubtedly to be considered, the second one has no influence on the question whether there is a dual criminality.  Switzerland or was extradited to Switzerland. In conclusion, jurisdiction can be established in this case according to the passive personality principle as long as the principle of disposition does not intervene.

Moving proceedings across the border
Since Switzerland could invoke jurisdiction on the basis of the passive personality principle, there still remains the question of what Y and Z would need to do to commence proceedings in Switzerland and to move the case back home.
First of all, in order to commence an investigation, the prosecuting criminal authorities need to receive evidence of a crime. In most cases involving a crime abroad, the victim has to take action. This can either be by reporting the crime to the authorities (if it is an offence subject to public prosecution ex officio) or by filing a demand for prosecution (if it is a criminal offence requiring a complaint to be made for the prosecution to be initiated). The demand for prosecution has to be filed in writing or orally 87 within 3 months. 88 The addressees are the police or the public prosecutor. 89 Once the Swiss prosecuting criminal authorities have knowledge of a crime which is within their jurisdiction, they are generally required to open an investigation. 90 However, the public prosecutor may still exercise discretion in deciding whether or not to prosecute certain offences. 91 According to Article 8 S-CPC, the authorities can pass on the proceedings if the requirements of either Articles 52, 53 or 54 S-CC are met. 92 Additionally, they have discretion if 'the offence is of negligible importance in comparison with the other offences with which the accused is charged as regards the expected sentence or measure' , 'if any additional penalty imposed in combination with the sentence in the final judgment would be negligible' or 'if an equivalent sentence imposed abroad would have to be taken into account when imposing a sentence for the offence prosecuted' . 93 Furthermore, Article 8 S-CPC provides that prosecution should not continue if the authority of another country has already prosecuted the offence or if the prosecution has been assigned to such an authority. 94 Nonetheless, this discretion, other than the discretion according to Article 8(1) S-CPC, is subject to the reservation that no prevailing interest of a victim exists. 95 Typically, such an interest can be found in the possibility to bring a civil claim based on the offence in the criminal proceedings. 96 The prevailing opinion points out that in those cases the use of discretion would not be appropriate as the private claimant (Privatkläger) has imposed its interest in the proceedings. 97 As a result, in cases in which the proceedings are moved to Switzerland by the victim, such an interest must be taken as given. Therefore, the principle whereby the public prosecutor has discretion to prosecute certain offences cannot apply in those circumstances, which is another indication that the pendulum has swung too far. Hence, it should be considered by the public prosecutor or the court that not just the interests of the victims are to be taken into consideration when deciding to use discretion. Especially the wish to add a civil claim within the criminal process, which would otherwise not have a forum in Switzerland, cannot be regarded as a prevailing interest. Consequently, a second criminal trial in Switzerland or in any other country should not merely be based on the financial interests of victims.
However, according to the prevailing opinion, this has the following consequence: The victims of Entrepreneur X would at least need to file a demand for prosecution to actually move the proceedings back home across the border. In cases in which civil claims are instigated, the discretion of the public prosecutor is limited -according to the prevailing opinion -and an investigation has to be opened.

The principle of ne bis in idem
As has been shown, Y and Z could move the case across the border. Therefore, they would need -at leastto report the crime and argue that the passive personality principle is applicable. Following the limited discretion, they would need to start a criminal proceeding. However, this could lead to the situation that several states may initiate proceedings. As a result, the alleged offender -in this scenario X -faces several proceedings at once as besides Switzerland, also Nigeria and the Netherlands could claim jurisdiction. This is another indication that the pendulum in the victims' position in criminal proceedings may have swung too far. Therefore, the question arises whether this pendulum can be pointed in the right direction at least with the help of the principle of ne bis in idem.
However, there are different ways as to how to handle a prior decision of a foreign court. According to the principle of disposition, there will be no further criminal prosecution (for example, in the Netherlands). Another approach is the 'dual sovereignty' doctrine according to which a decision of a foreign court will be ignored completely (e.g. the USA). The third way is the principle of deduction. In this case, a former sentence will be imputed on the second sentence (e.g. in Germany). 98 This situation, in which a second prosecution can take place in another country, which is simply not the case if the principle of disposition is applicable, is inconsistent with the fundamental reasoning of criminal law. In particular, the influence on the offender might rather be the reverse when compared with the pursued aim. If we recall those basic ideas of the reasons for criminal law, we first of all remember the goal of righting the wrong as part of the absolute theory. 99 For example Schultz pointed out that in the sense of the absolute theory the sentencing is to achieve an 'Ausgleich der Tatschuld' . 100 However, a sentence has to be balanced. A perpetrator will not be positively influenced with a second conviction for the same act. He or she will simply not understand the underlying reasoning. Also in the eyes of the general preventive theory, 101 a second sentence is not needed. The public's trust in the legal system has already been strengthened with the first conviction. Therefore, there is no substantial reason -either theoretical or substantive -for a second trial if the first one has taken place according to constitutional guarantees.
This situation, therefore, interferes with the basic principle of ne bis in idem. Most countries have laid down a prohibition on double jeopardy in their national statutes. Switzerland has done so in Article 11 S-CPC: 'No person who has been convicted or acquitted in Switzerland by a final legally binding judgment may be prosecuted again for the same offence. ' The basis of this regulation is laid down in Article 4 of Protocol No. 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, neither the prohibition defined in Protocol No. 7 nor the one in Article 11 S-CPC have an international impact. 102 As in most other countries, the Swiss regulation is limited to national convictions only or, in other words, a sentence in another country does not prevent a further criminal proceeding in Switzerland. 103 Nonetheless, Switzerland can refuse legal assistance if the accused is in Switzerland and a criminal proceeding concerning the same crime is pending in Switzerland per se. 104 However, this rule is limited to cooperation in criminal matters and does not include the rules of extradition. 105 Furthermore, extradition can be refused if the accused has been acquitted according to material reasons or the case has been suspended in Switzerland or in the country where the crime was committed or if the sentence has been served, waived or temporarily suspended. 106 These rules in cases of legal assistance in criminal matters do expand the reach of ne bis in idem somewhat. Nevertheless, the Swiss legal system does not grant an extensive principle of ne bis in idem in transnational crime. 107 This situation can lead to a certain imbalance in the position of the accused. The (alleged) offender may face multiple trials. 108 He is therefore exposed to the psychological burden repeatedly, has to bear the brunt of multiplied legal costs in case of several convictions and may have to serve another sentence for the same act. On the last point, some relief is provided in cases of the passive personality principle with the principle of deduction. According to this principle, the court has to take a partly served sentence imposed abroad into account, but not a suspended sentence. 109 Regardless of this, the principle of deduction, which has to be considered in cases where the same act has to be judged, 110 prohibits the accumulation of sentences but does not mitigate the other effects of a further trial. 111 Another oddity which occurs is the fact that by moving criminal proceedings back home to Switzerland a forum for the civil claim can be implemented which is not provided by private international law. 112 The Swiss victim of a transnational crime, therefore, gains another forum by using a claim for damages in connection with a criminal proceeding. This raises the issue as to whether there is still a forum for the civil claim in Switzerland, if the criminal procedure is completed with a summary penalty order or the civil claim is referred to civil proceedings by the criminal court. 113 In favour of opening up a forum in Switzerland, one could point out that the judgment of the criminal court, with which e.g. a decision in principle is taken and for further settlements is referred to the civil court, 114 cannot be binding on another state. Furthermore, one could contend that losing the forum would be inconsistent with the ruling of discretion in Article 8 S-CPC. On the other hand, one could state that a forum is neither provided in the Federal Act on International Private Law 115 nor in the new Lugano Convention. 116 Since criminal proceedings should not be abused to open up an unforeseen forum, a referral to the civil proceedings should lead to the loss of the forum in Switzerland.
As shown, the national prohibition is not sufficient to prevent a further trial in cases of a transnational crime and it does not run rings around the pendulum in cases of transnational crime. Nonetheless, Switzerland is a party to the Schengen acquis (SA) 117 which provides an internationalized ne bis in idem principle in Article 54 of the Schengen Implementing Convention. According to this article, 'a person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party' . 118 There have been discussions and decisions by the European Court of Justice (ECJ) about what can be considered 'the same act' 119 or a 'binding ruling' 120 . 121 Connected with the first question, the Swiss Federal Court also takes into consideration whether the aggrieved party who files a request for prosecution has been listed as a victim in the former proceedings as well. 122 Even though Article 54 Schengen Implementing Convention is the most expansive cross-national ne bis in idem principle. 123 However, this rule is only applicable between Contracting States and not in cases where non-contracting states are involved.
As there is no globalized prohibition on double jeopardy, some commentators raise the question whether this principle should be considered as an international human right. 124 Eicker, furthermore, wonders if customary law has in fact been established as most ad hoc tribunals and now the International Criminal Court (ICC) accept the principle of ne bis in idem. 125 However, to establish customary international law, an international legal opinion (opinio iuris) alone will not suffice. Consistent state practice is also required. Such a consistent application of the law cannot be taken as given 126 and therefore it cannot be seen as customary international law.
As a result, in transnational cases with countries which are not parties to the SA, the prohibition on double jeopardy does not prevent a second trial as it is limited to national convictions. The offender therefore might face a second trial in a country abroad. In our exemplary case, a former conviction in Nigeria would not prevent a further trial in Switzerland under the aspect of the prohibition of double jeopardy. But, a partly served sentence would have to be taken into consideration by the criminal court. On the other hand, a former conviction in the Netherlands would prevent a further trial in Switzerland if the Swiss victims have also been taken into consideration in the ruling of the Dutch court.

Conclusion
The strengthening of the victims' position has not just had an influence on their rights in an ongoing proceeding. Furthermore, victims may cause criminal proceedings to commence in their country of origin by using the passive personality principle. This carries the risk of the alleged offender having to face not just one trial for the same act, but maybe two. The principle of ne bis in idem is not strong enough to protect the suspect as it is usually limited to national convictions only. The ability of the principle of ne bis in idem to balance the swing of the pendulum is limited.
This may lead to inconsistencies, and an imbalance in legal rights as between an accused and a victim. For example, because the principle of ne bis in idem generally only applies within a state, and not between states, the victims of transnational crimes can precipitate a second trial in their country of origin. This means that an (alleged) offender might face several trials in different countries, a burden which does not seem to be justifiable.
Secondly, the strengthening of victims' rights leads to a weakening of the position of the accused, something which is also reflected in the most recent Opinion of the Committee of the Regions on 'legislative package on victims' rights' . 127 The Committee points out that 'solutions must be found to balance the rights of victims while guaranteeing the presumption of innocence in criminal proceedings as well as the individual rights of suspects and convicted criminals' . 128 This is particularly the case at the beginning of an investigation because there is no certainty about the actual position of the accused in the procedure.
Therefore, the ongoing strengthening of victims' rights does weaken the position of the alleged offender in different ways. The most serious effect is the possibility of a further trial with all its consequences. To put a stop to this and to get the pendulum back in a proper balance, a transnational ne bis idem -as it exists in the Schengen area with Article 54 Schengen Implementing Convention -would be a starting point. Another way might be the abolition of the passive personality principle. As mentioned above, it is a rather weak linking point which is -for good reasons -controversial.
However, given the possibility of the impunity of the alleged offender, the demand for abolition may be too far-reaching. Therefore, one should at least think about further requirements for the application of the passive personality principle. Such requirements could include limiting the application to the victim stricto sensu and a prohibition on double jeopardy in all circumstances which can be attained by implementing the principle of disposition. This would bring the swinging pendulum back into balance.
Nevertheless, a transnational general principle on limiting victims' rights and their possibility to start a second trial back home cannot yet be deduced. However, with a transnationalised ne bis in idem some relief could be provided which -besides Article 54 Schengen Implementing Convention -is not yet the case, except in countries which apply the principle of disposition also in cases of the passive personality principle. ¶