An application of the ne bis in idem Principle in Inca Garcilaso de la Vega’s Historia General del Perú

Abstract

Inca Garcilaso de la Vega’s Historia General del Perú (1617) recounts an odd story taken place during the struggle between Mariscal Alonso de Alvarado and Francisco Hernández de Girón, when a group of prisoners refused to abandon jail after their dismissal without prejudice. However, this behaviour makes perfectly sense from an approach that takes fully into consideration the ne bis in idem principle. This paper analyses the above-mentioned episode, assessing the historical and legal reliability of Inca Garcilaso, and suggests that the ne bis in idem principle was forged as a shield against any exercise of the State’s ius puniendi and not only against the judiciary.