THEORY
The principle of ne bis in idem is a constitutional guarantee of legal certainty, for the defendant established to prevent double jeopardy.
is enshrined in our law in unlisted securities but stems from the people's sovereignty and the republican form of government (Art. 33, CN), emanating from the defense or right of equality before the law. At the international level is embodied in Article 8.4 explicitly ACHR and ICCPR Article 14.7, both with constitutional status (Art. 75, paragraph 22, CN).
From a wide stance formulation of the principle states: "no one can be criminally prosecuted more than once for the same offense."
Thus the use of the term "criminal prosecution" absolutely prevents any possibility of review against the accused and the prosecution to reopen an already exhausted and prosecution simultaneously, providing extensive protection to the accused, without distinction of the state in which the process is.
To establish whether there is an affectation of the guarantee is necessary to determine the identity of person, object and cause. Referring to the objective identity , ie to determine whether we face the very fact we should look at it as real event (not a fact has to be verified, but attached only to exist, that is, hypothetically asserted as real), which happens in one place at one time or certain period without the possibility of subsumption in different legal concepts affecting the rule, allowing new prosecution, under a different assessment of the above.
Made the above clarifications, as a next step we will analyze the movie "Double Jeopardy ."
is possible that many of you have seen it, since it is a film that is 11 years old. Anyway basically tell what it is without advancing the end in case anyone wants to see.
The main character, Libby, is accused of killing her husband, being found guilty by a jury and convicted for it.
already in the criminal discovers that her husband was actually alive. After
discuss this with some colleagues, receives from the internal one of the following "advice":
That information then passes it her husband, Nick, the day they finally get to find:
already noted, even the name of the movie, you can analyze the facts relating to the security of ne bis in idem .
Without pretending to have what happens in the film, we analyze whether Libby case actually kill her husband would be effectively covered by the ban multiple criminal prosecution, as they understand their partner's criminal probation officer.
To our knowledge, not have violation of ne bis in idem if Libby is being prosecuted for the second (in indeed, only) done. This because we believe that these are two very different events (ie, no objective identity), beyond which the victim is the same and the offense for which they are charged (murder) as well. A first event, that really did not happen and for which she was wrongfully convicted and the other occurred six years later, that would clearly be a different historical event.
Anyway, we the following question arises: Since it is logically impossible that a person may be a victim of homicide than once (as may occur with other crimes, eg. Injury, theft, fraud, etc.) Would it be fair that Libby go to jail for killing her husband, when he was deprived of his liberty for doing so supposedly before ?, Ie, probably many of you, just like us, find it unfair that the State pay this woman again, after noticing the injustice of the first closure.
So what is the solution?, "To compensate women for the years of unjust imprisonment that has endured and enclose it again, or does just that solution would be proposing Bovine remand if they were not convicted ie give them a "voucher" by which they can commit a crime punishable corresponds to the time for which they were deprived of freedom?. In this case, would it be fair to give the woman a "voucher" to effectively kill your husband without going to jail this time?.
COURT:
is issued the following applies for Libby to commit the murder of her husband Nick.
Paraboni, Carolina Cardoso.
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