The right not to be tried twice for the same offense

No one shall be liable to be tried or punished again in criminal proceedings for an offense for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.

Article 50 of the Charter of Fundamental Rights of the European Union 
Text as of March 2026

The ne bis in idem principle (the right not to be tried or punished twice in criminal proceedings for the same offense) is a fundamental right enshrined in Article 50 of the Charter of Fundamental Rights of the EU, Article 4 of Protocol No. 7 to the European Convention on Human Rights, and Articles 54–58 of the Convention implementing the Schengen Agreement. It ensures respect for final court decisions (res judicata) and is essential for Ukraine’s EU accession, as it requires full compliance with European standards that prevent the duplication of criminal proceedings and penalties.

Based on research and human rights practice, the following problems in the exercise of this right in Ukraine can be distinguished:

  1. Potential problem of constitutional regulation. Article 61 of the Constitution of Ukraine directly guarantees that “no one may be held liable twice for the same type of legal liability for the same offense.” This article uses the limited wording “one type,” which could be interpreted as permitting both administrative and criminal penalties for the same act, which conflicts with ECtHR standards.
  2. Duplication of liability refers to the systematic practice of classifying acts concurrently as both administrative offenses (misdemeanors) and criminal offenses. This is especially true for cases concerning:
    • Hooliganism: prosecution first with administrative charges (Article 173 of the Code of Ukraine on Administrative Offenses (CAOU)) and then with criminal charges (Article 296 of the Criminal Code of Ukraine (CCU)). The ECtHR found a violation in the cases of Igor Tarasov v. Ukraine (application number 44396/05, decision of June 16, 2016) and Chernov v. Ukraine (application number 16432/10, decision of December 10, 2020).
    • Domestic violence: administrative liability for committing domestic violence (Article 173-2 of the CAOU), followed by criminal liability (Article 126-1 of the Criminal Code of Ukraine). If a person is prosecuted under Article 173-2 of the Code of Administrative Offenses and the decision is final, bringing a criminal charge under Article 126-1 of the Criminal Code for the same actions violates the ne bis in idem principle. A criminal qualification is possible only if a new offense occurs after a previous arrest.
    • Violation of Road Traffic Rules (RTR) that caused property damage: administrative liability under Article 124 of the Code of Administrative Offenses (violation of traffic rules that caused damage to vehicles, cargo, roads, streets, railway crossings, road structures or other property) and subsequent criminal liability for the same act under Article 286 of the Criminal Code of Ukraine (violation of road traffic safety rules or transport operation by persons driving vehicles).
    • Driving while intoxicated: results in administrative liability under Article 130 of the CAOU (operating vehicles or vessels under the influence of alcohol, drugs, or medications that impair attention and reaction speed) and subsequent criminal liability under Article 286-1 of the Criminal Code for violating road traffic safety rules or transport operation while intoxicated.
    • Illegal border crossing: the government submitted draft law No. 13673 to parliament (registered in August 2025). This draft law, which has not yet been considered, would introduce criminal liability for illegal crossing of the state border during martial law (fine of UAH 51,000–170,000 or imprisonment for up to 3 years). The draft law consolidates two sections into a single one, but Article 204-1 of the Code of Administrative Offenses, which addresses administrative liability for illegal border crossings, remains in effect.
  3. Administrative penalties imposed by the local governments, followed by subsequent administrative liability for the same act: imposition on a person of an administrative penalty by the local government under Article 152 of the Code of Administrative Offenses (violation of urban development standards, norms, and rules in the field of settlement territory development), and later administrative liability for the same act under Article 139 of the CAOU (damaging roads, streets, road structures, railway crossings, traffic control devices, or creating traffic obstacles without addressing them).
  4. Imposing disciplinary sanctions on a convicted individual in detention facilities and then holding them criminally liable for the same acts, specifically under Articles 390, 391, 392, 255 of the Criminal Code of Ukraine: application of criminal law based on multiple similar disciplinary violations, each previously punished, which violates the principle of non bis in idem.
  5. Duplication of disciplinary sanctions on military personnel and administrative liability for the same acts: applying disciplinary sanctions to military personnel and holding them administratively liable for the same act.
  6. Ukrainian legislation does not include a “sufficiently close connection” test. Following the ECtHR’s judgment in A and B v. Norway (2016) and the Court of Justice of the EU judgments in Menci (C-524/15), Garlsson Real Estate (C-537/16) and Di Puma and Zecca (C-596/16 and C-597/16), European law does not allow for dual proceedings (administrative offences and criminal offences) only if there is a “sufficiently close connection in terms of content and time.” Ukrainian legislation lacks a mechanism to apply this test, resulting in systemic violations of the ne bis in idem principle.
  7. Qualifying the same act under multiple articles of the Criminal Code of Ukraine: the existence of the practice of “excessive” qualification directly violates the ne bis in idem principle, as confirmed by the Grand Chamber of the Supreme Court in its resolution of February 28, 2024 (case No. 415/2182/20). The court ruled that charging both Article 438 (war crimes) and Article 146 (unlawful deprivation of liberty or kidnapping) is unlawful, as war crimes already encompass deprivation of liberty during armed conflict. Although in most cases, this relates to the principle of competition between criminal law norms (perfect totality and absorption), rather than the principle of ne bis in idem.
  8. The cross-border dimension of the ne bis in idem principle (Articles 54–58 of the Convention Implementing the Schengen Agreement (CISA)). For EU accession, the cross-border aspect of the ne bis in idem principle is crucial, especially in terms of freedom of movement: prohibition of repeated prosecution in another Member State for acts for which a final decision has already been adopted. Systemic changes are needed in the Criminal Procedure Code, the Code of Administrative Offenses, and legislation on international legal aid.
  9. The problem of lis pendens (concurrent proceedings). The current doctrine of the ECtHR and the Court of Justice of the EU differentiates not only between the prohibition of re-prosecution after a final decision (ne bis in idem in the narrow sense) but also addresses the issue of concurrent proceedings (lis pendens). In Ukraine, there is no mechanism to prevent simultaneous proceedings in different jurisdictions (administrative and criminal) concerning the same facts.

What Ukraine needs to do during its accession to the EU to improve the situation:

  • Clarify the ambiguous wording of Article 61 of the Constitution of Ukraine, which prohibits pursuing “one type” of justice but inadvertently allows overlapping sanctions for the same act, such as first imposing an administrative penalty followed by criminal punishment. It is necessary to amend the Constitution or ensure that the Constitutional Court and the Supreme Court interpret Article 61 and Part 3 of Article 2 of the CCU consistently with international and ECtHR standards.
  • Implement a legislative process to establish a “sufficiently close connection” test. Legislation should clearly define the criteria for when dual proceedings are considered a “single whole.” These criteria include the complementarity of goals, predictability, avoidance of duplication of evidence, mutual consideration of sanctions, proportionality of cumulative punishment, and temporal proximity of the proceedings.
  • Adopt a new Code of Administrative Offenses that is clearly differentiated from the Criminal Code. The draft Code of Administrative Offenses (reg. No. 11386, registered in the Verkhovna Rada on June 28, 2024) clarifies the difference between criminal and administrative offenses. Adopting the new Code is critical to address the ne bis in idem issue, since the 1984 Code of Administrative Offenses consistently causes conflicts.
  • Amend national legislation, specifically the Criminal Code of Ukraine and the Criminal Executive Code of Ukraine, by decriminalizing elements of offenses that duplicate disciplinary sanctions (Articles 390, 391, 392 of the CCU and similar) and transferring them to the Criminal Executive Code of Ukraine.
  • Address systemic issues in national legislation concerning conflicts between criminal and administrative jurisdiction norms regarding individual liability for offenses to prevent genuine risks of violating the ne bis in idem principle.
  • Introduce a mechanism to halt administrative proceedings if there’s evidence of a criminal offense. Legislate that the administrative body must halt proceedings and refer the case to the pre-trial investigation authority if signs of a criminal offense are identified. This will prevent situations when administrative penalties hinder criminal prosecution.
  • Align the application of articles 390, 391, and 392 of the Criminal Code of Ukraine with European standards set by the ECtHR and the Court of Justice of the EU.
  • Ensure proportionality of the total punishment. According to the Court of Justice of the EU (Menci), even when double proceedings are permitted, the total sanctions imposed must remain strictly necessary in light of the gravity of the offense. Courts should be legally required to consider previously imposed administrative penalties when determining criminal punishment.
  • Establish a systematic approach to developing clear explanations and consistent case law for complex liability issues for certain offenses (domestic violence, traffic violations, disciplinary sanctions in detention facilities, military discipline, etc.).
  • Conduct regular training sessions and workshops for judges, prosecutors, lawyers, and law enforcement officers, focusing on the case law of the ECtHR and the Court of Justice of the EU. Improve legal education and training for lawyers to ensure prompt and effective responses to potential violations of the ne bis in idem principle.
  • Apply the ne bis in idem principle transparently and consistently in national courts, using the “Engel criteria” to determine whether proceedings or punishments are criminal in nature.
  • Implement the cross-border dimension of the ne bis in idem principle. To join the EU, a country must incorporate Articles 54–58 of the Convention Implementing the Schengen Agreement (CISA) into its national law. This includes recognizing final court decisions from other EU Member States as a basis for applying the ne bis in idem principle and establishing a mechanism for information exchange via Eurojust regarding parallel proceedings.
  • Address the issue of the ne bis in idem principle in the context of draft law No. 13673 (illegal border crossing). The draft law should clearly abolish administrative liability for the same acts or establish a mechanism to account for administrative penalties when imposing a criminal penalty.

For a comprehensive overview of these issues and the rationale behind our recommendations, please refer to the research section, specifically the document available in Ukrainian: The right not to be tried twice for the same offense. If you have any feedback or comments about this material, please send them to: hrmap@ccl.org.ua.

Published materials may be used provided that a mandatory link to the original source is included. @ 2026 Center for Civil Liberties.

Experts

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Olena Sapozhnikova

A lawyer with many years of experience representing applicants before the European Court of Human Rights, where she is a representative in 16 strategic cases