Ne bis in idem: fundamental constitucional right applicable in the relationship between criminal law and the sanctioning administrative law

Abstract

The aim of the current work is to demonstrate which, unlike praxis, the double jeopardy (ne bis in idem) constitutes a fundamental right determined by CRFB/88 and must be applied in the Sanctioning Administrative Law and in within the relationship between punitive levels. The research has used the theory of the unity of punitive power as reference, which proposes that the state punishment represents a broad concept that covers the criminal law, non-criminal law, administrative law and constitutional guarantees imposed to the punitive power, inherent of the rule of law, so that, regardless of the sphere in which this power manifests these principles must be respected. The research has concluded that double jeopardy (ne bis in idem) is a fundamental right inserted in the Brazilian legal system by art. 5, paragraph 2 of the CRFB/88, because its essentiality in guaranteeing other fundamental rights and due to do the ratification of international treaties on human rights by the Brazilian State. As soon, its application in the relationship between criminal law and the administrative law does not demand norms other than those already existing, since it stems from its fundamental right nature and the position above the law of human right treaties.