November 13, 2026
By Basil Saen
In Jesus Pinhal v. Portugal, the European Court of Human Rights (the Court or the ECtHR) reshapes the ne bis in idem test under Article 4 of Protocol No. 7 to the European Convention on Human Rights (the Convention or the ECHR), which guarantees the right not to be tried or punished twice. The Grand Chamber, examining three parallel criminal and administrative proceedings, finds no violation by fifteen votes to two. One of the two dissenting judges remarks that this decision turns ‘one of the Convention’s core and unqualified prohibitions’ into ‘one of the most overqualified tests ever designed by the Court’ (Partly Dissenting Opinion of Judge Pavli, para 9). This post summarises the new approach, zooms in on the disagreement between majority and minority, and assesses the dissenting judges’ critique in light of scholarship on other absolute rights.
After briefly describing the three domestic proceedings that gave rise to the Strasbourg proceedings, the summary below follows the structure of the Court’s assessment of ne bis in idem, looking at the distinct questions relevant under Article 4 of Protocol No. 7: (i) Are the proceedings criminal in nature?; (ii) Do the proceedings relate to the same facts?; and (iii) Is there a multiplicity of proceedings or do they form a ‘coherent whole’?
The applicant was a member, later vice-chairman, of the board of directors of Banco Comercial Português. He was accused of taking part in a scheme in which the price of this bank’s shares was artificially inflated through circular trading by offshore companies, concealing this scheme, and receiving dividends on the back of the inflated valuation (paras 14 and 261-263). Three Portuguese authorities separately pursued him for this. The public prosecutor brought criminal charges of market manipulation, aggravated fraud, and forgery (para 262). The central bank (Banco de Portugal) and the financial regulator (Comissão do Mercado de Valores Mobiliários) pursued him administratively for providing false or incomplete information and for false accounting (paras 261 and 263). The criminal courts convicted him of market manipulation (para 284), and the financial regulator fined him EUR 480,000 on top (para 285). The central bank’s charges ended partly in a time-bar and partly in an acquittal (para 34).
Ne bis in idem only protects against proceedings that are criminal in nature. The Court sticks to the traditional Engel criteria and finds all three sets of proceedings criminal (para 259). The qualification under national law is not decisive. Although the central bank’s and the financial regulator’s proceedings were branded administrative in domestic law, the Court points to their deterrent and punitive purpose, the requirement of a finding of guilt, and the severity of the potential sanctions (paras 254-258).
The proceedings must also concern the same facts. In past case law (see in particular Sergey Zolotukhin), the Court had extended this to facts that are ‘substantially the same’. It now says the former approach creates uncertainty in complex cases, including in cases of ‘increasingly sophisticated forms of crime’, so that ‘mere similarity shall no longer suffice’ (paras 222-223). From now on, the material facts relating to the essential elements of the offences must be identical (para 225).
In Jesus Pinhal, the Court first notes that not all facts overlap fully (para 260). The setting up of the offshore companies, their transactions, and the dividends paid out to the applicant were prosecuted only in the criminal case (para 264). Yet, the allegations of providing false information to the supervisory authorities are considered identical between the criminal proceedings and each of the administrative proceedings (para 265), and that suffices, for the Court, to accept that the proceedings relate to the same facts and to proceed with the next step of the assessment. As such, how much the new approach under this question really changes compared to past case law is unclear.
Since A and B v. Norway, parallel proceedings do not breach Article 4 of Protocol No. 7 if they form an ‘integrated system’ or ‘coherent whole’ that addresses different aspects of the wrongdoing in a foreseeable and proportionate manner. In Jesus Pinhal, the Court refines this ‘calibrated approach’ in a new five-limbed test (para 250): (i) Do the proceedings address different protected legal interests?; (ii) Was the multiplicity of proceedings provided for in law and foreseeable?; (iii) Does domestic law provide clear rules for coordination, respecting defence rights, and for a proportionate overall sanction?; (iv) Were the proceedings in fact coordinated, and was the overall sanction proportionate, so that the person did not bear an excessive burden and earlier acquittals were respected?; and (v) Were the proceedings sufficiently close in time?
Throughout these five new limbs, the Court further nuances the approach set by A and B v. Norway. Under the first limb, the Court now assesses the new criterion of ‘protected legal interests’, and it does so by looking at the formal mandates of the authorities. It concludes that the protected legal interests are ‘truly separate’ in this case: the central bank protects the stability of the banking industry, the financial regulator protects market integrity, and the prosecutor protects public confidence in financial information (para 270). However, as the formal mandates of criminal and administrative authorities will in practice almost always be distinct, the new formulation of this limb appears to filter little. Further, under the third limb, the Court becomes more permissive of duplicated evidence-gathering by the prosecuting authorities (paras 232-233) and, under the last limb, more forgiving of unequal length between the proceedings (para 240). On that last point, the Court notes that, in practice, administrative proceedings are dealt with more quickly than criminal proceedings, and that delays in criminal cases are sometimes caused by dilatory conduct on the part of the persons concerned.
While reshaping the test, the Court transparently points out that it does so to accommodate the specific issue of parallel criminal and administrative proceedings, because of the underlying collective interests at play (paras 206, 215, 223, and 243; see also further below). In doing so, it ties its newly refined interpretation to the living instrument doctrine (para 216).
As the test becomes increasingly tailored to the issue at hand, this raises the question of when a violation of ne bis in idem will in practice still arise. The response lies in the Court’s emphasis on the proportionality of the overall sanction, which has a ‘prominent – if not decisive’ role in the overall assessment (para 234). The Court notes in particular that the financial regulator’s fine of EUR 480,000 was below the maximum set by law (para 285) and that the overall sanctions were not disproportionate to the ‘damage’ caused to the securities market and the national economy (para 286). As a result, in Jesus Pinhal, the majority finds no breach of Article 4 of Protocol No. 7.
Judges Pavli and Serghides disagree. Both stress the absolute and non-derogable nature of the right under Article 4 of Protocol No. 7 (Pavli, paras 3 and 9; Serghides, paras 5-6). Judge Pavli argues that neither its text and drafting history, nor its object and purpose support the calibrated approach (paras 3-5). He also points out that the repetition of prosecutions in and of itself leads to harm against which ne bis in idem should protect (para 5), and that the calibrated approach reduces protection to an ex-post check on disproportionate combined sanctions (para 8). Judge Serghides emphasises that proportionality has no role in the assessment of an absolute right (para 11) and rejects the use of the living instrument doctrine to move backwards (para 14).
The literature on other absolute rights offers a useful vantage point to assess the difference in views between the majority and minority. Before addressing that literature, however, the preliminary question is whether Article 4 of Protocol No. 7 is an absolute right. On this point, the majority and the minority agree. As the dissenting judges emphasise, the text of Article 4, §1 of Protocol No. 7 is straightforward and sets no exceptions or qualifications. It is also one of the rights that cannot be derogated from, even in times of emergency under Article 15 of the Convention. The majority accepts this: ne bis in idem must be secured ‘everywhere, to everyone, at all times’ (para 200) and it is an ‘absolute right admitting of no derogation’ (para 220).
The next question is what it means for ne bis in idem to be absolute. Here, Gewirth’s theory on absolute moral rights offers a useful framework, as shown in Mavronicola’s work on Article 3 of the Convention. The baseline in this theory is that absolute rights cannot be justifiably infringed and must be fully realised without any exceptions. However, that does not mean that no further definition, or ‘specification’, of the content of the absolute right is permissible. Three criteria for permissible specifications are advanced (Gewirth, p 5). The specification must (i) be ‘recognisable to ordinary practical thinking’, not ‘overloaded with exceptions’ nor requiring ‘intricate utilitarian calculations’; (ii) be justifiable through a valid moral principle; and (iii) exclude any reference to the possibly disastrous consequences of realising the right. Mavronicola applies this to Article 3 of the Convention, warning that specifications that do not adhere to these criteria result in an ‘illegitimate interplay’ with the applicability of the absolute right, a form of ‘internal displacement’, which risks rendering it ‘virtually meaningless’ (Mavronicola, pp 740 and 747).
Applied to Jesus Pinhal, two points from this theoretical framework stand out, which resonate with the disagreement between the majority and minority.
First, the specification should remain recognisable to ordinary practical thinking. As emphasised by Judge Pavli, the elements in the text of Article 4 of Protocol No. 7 are straightforward concepts, whose ordinary meaning is clear (Pavli, para 3). The newly refined calibrated approach, on the other hand, is complicated to say the least. The majority notes itself that the previously established test led to ‘difficulties and, at times, uncertainty’ (para 214). The further nuancing of the previous approach into five new limbs with several sub-questions, without clarity on how different sub-criteria relate to each other, does not simplify things. The significance of the proportionality criterion, which receives a ‘prominent – if not decisive’ role, does not solve the complexity either. To assess proportionality, besides the theoretical maximum fine, the Court looks at the ‘damage’ caused to the securities market and the national economy (para 286). The need for the Court to assess the economic consequences of conduct such as circular trading, besides being a can of worms, resembles what Gewirth calls ‘intricate utilitarian calculations’.
Second, the justifications given for the ‘calibrated approach’ are relevant under Gewirth’s second and third criteria. The Court is transparent about its reasons for reshaping the test. The press release accompanying Jesus Pinhalis titled ‘Need for fair balance between combating crime and right not to be tried twice for the same offence’, and the Court also refers to the ‘fair balance’ in the judgment itself (para 206). It also refers to the challenges of modern societies in dealing with increasingly sophisticated forms of crime (paras 215, 223, 243) and to the rise of administrative enforcement agencies following decriminalisation trends (para 215). These are consequentialist reasons. They contrast with the principled justifications for ne bis in idem itself, including fairness and legal certainty (Pavli, para 5).
As such, the minority’s critique of the new five-limbed test finds support within this theoretical framework on other absolute rights. Under the calibrated approach, the absolute rule has become the right ‘not to be tried again for the same offence, unless the proceedings protect different legal interests, were foreseeable, were coordinated, led to a proportionate overall sanction and were sufficiently close in time’. Whilst the majority considers this an acceptable calibration, the minority finds this difficult to square with the right’s absolute nature. If one adheres to the theoretical framework proposed by Gewirth and Mavronicola, the minority seems to be on to something.
Judge Pavli’s suggestion of alternatives that fit better with the nature of absolute rights then has merit. Instead of watering down the content of the right, the Court should focus on the primary trigger of applicability: the question of whether the proceedings are effectively criminal in nature. He thus argues for a partial reconsideration of the Engel criteria (Pavli, para 12), and points to alternative ways for national authorities to deal with this issue without drifting away from the core of Article 4 of Protocol No. 7 (Pavli, paras 36-39). This includes choosing decisively for either the criminal or the administrative route, instead of necessarily wanting to combine both. Such ‘una via’ mechanisms already exist in member states for certain forms of financial crime, and further explorations into their effectiveness appear valuable.
In Jesus Pinhal, the Court balances an absolute right against collective interests. From one perspective, the Court’s transparency is laudable, as it clearly says why and what it is changing in its approach. On the other hand, the minority points out that this results in an even further watered-down version of the ne bis in idem principle, difficult to square with its absolute nature. This post assesses this critique in light of the literature on other absolute rights and finds that the minority is on to something. Although the importance of the response to financial crime is obvious, the question is whether the collective interests strived for should not be reached by alternative ways that stick closer to the core of Article 4 of Protocol No. 7.
Looking more broadly, Jesus Pinhal is an interesting development in the context of other calls for ‘balancing’ in the Convention system, which have recently been extensively discussed in the Chișinău context (including by Ní Chinnéide and Sevrin, here). The Grand Chamber judgment discussed in this post suggests that the tension between the universality and absolute nature of human rights, on the one hand, and the sovereignty of national states, on the other, extends far outside of the migration context, even into the realm of financial crime.
A descriptive summary of this judgment was published by the author in Tijdschrift voor Strafrecht, 2026/5, 445-449
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