Sul dialogo tra Corti in materia di doppio binario sanzionatorio: il nuovo principio del ne bis in idem, tra proporzionalità e (restituito) margine d’apprezzamento

Over the last few years, the ne bis in idem principle has been a particularly controversial issue at the interface of administrative and criminal law enforcement. Both the Court of Justice of the European Union (ECJ) and the European Court of Human Rights (ECtHR) have progressively assessed their positions about its rationale and its scope of application. More recently, the two Courts have also reached a common level of protection. In the meanwhile, the Italian Constitutional Court and the Italian Supreme Court have produced a flourishing case law in order to coordinate the national constitutional system with the evolving European case law. Within this framework, this contribution explores how the ECJ and ECtHR have restored the margin of appreciation in the application of the ne bis in idem principle at national level. Secondly, it aims to demonstrate to what extent this intertwined judicial dialogue has changed the rationale of the ne bis in idem principle. From restricting the possibility of a defendant being prosecuted repeatedly on the basis of the same offence, the new ne bis in idem principle appears to guarantee mostly the proportionality of the overall punishment.