CCPR/C/113/D/2218/2012 Appendix II [Original: English] Individual opinion of Committee member Yuval Shany (partly concurring, partly dissenting) 1. I have associated myself with the joint individual opinion authored by Committee members Iwasawa et al with respect to the reasoning espoused by the majority on the Committee, underlying the finding of a violation of article 18 of the Covenant by the State party. In this additional individual opinion, I wish to express my concerns about the findings reached by the majority on the Committee with respect to the violation of article 14 (7) by the State party. 2. Article 14 (7) of the Covenant reflects the ne bis in idem or “double jeopardy” principle, which is designed to ensure that no one should be tried more than once for the same offence. According to the Views of the Committee, the author’s rights were violated because he was tried twice under article 219 (1) of the Criminal Code in two separate instances for failing to report for military service in 2009 and 2011. According to paragraph 7.5 of the Views of the Committee, “repeated punishment of conscientious objectors for not having obeyed a renewed order to serve in the military may amount to punishment for the same crime if such subsequent refusal is based on the same constant resolve grounded in reasons of conscience”. Since the grounds for the author’s refusal to serve were, on both occasions, the same reasons of conscience—his belief as a Jehovah’s Witness in the wrongfulness of military service—the Committee found a violation of article 14 (7) of the Covenant. I am however of the view that a more nuanced approach to the application of article 14 (7) is required and I am not convinced that, in the circumstances of the case, it was sufficiently shown that the author’s right not to be tried twice for the same offence was in fact violated. 3. When considering the application of the ne bis in idem principle, it is important to distinguish between instances of an individual being repeatedly tried for exactly the same offence—comprising the same actus reus—and instances of an individual being tried for offences which have similar characteristics, but which were committed at different points in time, i.e. having different actus rei. There is no doubt that article 14 (7) covers repeated trials belonging to the first category of cases, but its application to the second set of trials is less clear-cut, and depends on the particular nature of the various multiple trials. In the present case, the author was tried twice, but not for exactly the same offence: the first time, he was tried for a refusal to serve in the military in 2009, and the second time he was tried for a similar refusal in 2011. His case thus falls under the second category of multiple trials alluded to above, which may sometimes, but not always, violate the ne bis in idem principle. 4. The situation of the author, who has been repeatedly called up for military service and repeatedly refused call-up, is analogous to that of other individuals tried repeatedly for offences stemming from a “constant resolve” involving a rejection of the overarching social norm captured by the relevant criminal prohibitions (for the purpose of applying article 14 (7) it is not relevant whether or not opposition to the substantive social norm in question is protected by the Covenant). Such a constant resolve may underlie, for example, practices of chronic tax evasion, involvement in an ongoing bigamous relationship or continuing possession of substances designated as unlawful by the State party. 10