Criminal and Disciplinary Liability of a Soldier and an Officer in the Light of the Ne Bis In Idem Principle

Abstract

The appearance in the legal system of military disciplinary regulations introducing the category of the so-called a contact act (i.e. an act that is a military disciplinary offense that simulta-neously fulfills the features of a prohibited act, penalized in another act, e.g. in the Act of June 6, 1997, the Penal Code) triggered a number of questions about the mutual relationship between the repressive nature of criminal and quasi-repressive military disciplinary liability. The category of a contact act expressis verbis refers to the provision of Art. 17 sec. 1 and art. 17 sec. 2 points 2-3 of the Act of 09/10/2009 on Military Discipline. Committing a military disciplinary offense by a mil-itary soldier, which at the same time carries the features of an offense penalized in the Criminal Code, gives the possibility of double (i.e. criminal and disciplinary) punishment of a soldier for the same act in fact. Therefore, it is necessary to consider whether such practice makes ne bis in idem (prohibiting repeated punishment of a person for the same act) quite a constitutional principle; or, on the contrary, this practice violates constitutional standards? The analysis made in this article is an attempt to answer this question. The considerations are dogmatic and historical in nature, using the method of systemic and linguistic interpretation.