Crime-based deportation and its compatibility with the principle of ne bis in idem
Ne bis in idem is a well-established principle of criminal law that prohibits dual punishment for the same offence. In her study, the author, Martta Virkkala, examines this principle in the context of crime-based deportation of third-country nationals, with a particular focus on Europe and the case law of the European Court of Human Rights and the Court of Justice of the European Union as it relates to third-country nationals in the EU. Finland and the Finnish Aliens Act are used as examples of national legislation and practice.
Two different legal proceedings are present in crime-based deportation. Foreign offenders are first convicted under criminal law and punished with a criminal sentence. Having served that sentence, and as a direct consequence of the criminal law proceedings, they are then subject to an administrative or civil law process in which a decision is taken on the annulment of their residence permit and on their deportation, often accompanied by an entry ban. Deportation is commonly classified as an administrative sanction or a regulatory measure rather than a punishment. However, the author argues that its effects on the deported individual resemble punishment in many respects. The key question addressed in the study is whether crime-based deportation amounts to a prohibited second punishment for the same offence and thus constitutes a violation of the principle of ne bis in idem. Another central theme is the increasing intertwinement of criminal law and immigration law, and the use of crime-based deportation as a means of deterring and controlling criminal activity and of maintaining the credibility of national immigration policies.
Martta Virkkala, is a graduate (2024) from the Åbo Akademi University Master’s Degree Programme in International Law and Human Rights. The study is based on her Master’s thesis in public international law. It is published in the Institute for Human Rights Working paper series which presents research work in progress.
