Wednesday, 16 May 2018

Guest Blog Commentary on Ne Bis in Idem

It is my pleasure to introduce a guest commentary by my Utrecht University colleague dr Bas van Bockel. He has written a commentary on the interesting recent inadmissibility decision in Krombach v France, that relates to the ne bis in idem principle of Article 4 of Protocol 7 ECHR and to the Strasbourg-Luxembourg relation.

Krombach Returns to Strasbourg
Bas van Bockel, Utrecht University

After the death of 15-year-old Kalinka Bamberski in Germany in 1982, a criminal investigation was launched with the plaintiff dr. Krombach, the girl’s stepfather, as the suspect. The investigation and in particular the handling of the forensic aspects was botched, and the public prosecutor discontinued the prosecution of Krombach for lack of evidence. Convinced that his daughter was sexually abused and killed by her stepfather, Kalinka’s father mr. Bamberski attempted to have the decision by the German authorities ending the prosecution reversed. When this failed, he adhered the French authorities because of the victim’s French nationality. Krombach was tried and sentenced to 15 years imprinsonment in absentia by the Paris Court of Assizes. Krombach did not appear in court in France for fear of being arrested and his trial was conducted under the French “contempt procedure” (jugement par contumace) under which an absent subject is legally prevented from defending him- or herself. This led to an earlier judgment before the ECtHR matter (ECHR 13 February 2001, no. 29731/96), in which the ECtHR ruled in Krombach’s found an infringement of both the right to a fair trial (art. 6 ECHR) and the right to an appeal (art. 2 Protocol 7 ECHR).

This did not alter the fact that Krombach was still wanted in France, whilst he was living freely in Germany. Bamberski attempted in vain for Krombach to be surrendered to the French authorities. In the end, he resolved to make arrangements for him to be kidnapped and taken to France by force. In 2009 Krombach was found bound gagged and wounded in the streets of a French city near the German border after the police were alerted to his presence by an anonymous caller. He was arrested, (re-)tried and sentenced again by a French court, this time for for causing bodily harm resulting in the death of Kalinka Bamberski. In the procedure before the ECtHR that would follow, Krombach complained that his conviction violated the ne bis in idem principle of art. 4 Protocol no. 7 to the ECHR, in view of the fact that his previous prosecution in Germany (and not his earlier conviction in absentia in France) was finally discontinued for lack of evidence.

The Court held the application to be admissible because the ne bis in idem principle of Article 4 of Protocol 7 ECHR only applies to situations within one and the same state party. Although France and Germany are both EU Member States and a broader, “transnational” ne bis in idem rule in the form of Article 54 of the Convention on the Implementation of the Schengen Agreement is in force within the EU, this provision has no bearing on the scope of application of Article 4 of Protocol 7 ECHR. The Court finds that it lacks competence to apply rules contained in EU law or to rule on a possible breach of those rules, except where a breach of a rule of EU law incidentally also breaches a right from the Convention. It is therefore up to the member states and in particular the national judiciary to interpret and apply national law in the light of the applicable provisions of Union law, and the Court is not in a position to rule on a potential breach of EU law. The application is declared inadmissible. In itself the decision does not come as a surprise given the wording of Article 4 of Protocol 7 ECHR. Although the question of the international (non-)application of that provision was debated around the time that the 7th Protocol was drafted and adopted (1984), that debate has now been put to rest because the wording of the provision excludes the possibility of international application of the ne bis in idem provision contained in it.

The decision raises interest because of what the Court says about its own role in relation to European Union law. In the decision, the Court sets out a seemingly straightforward division of tasks under which the national judiciary interprets and applies national law in the light of any relevant EU law. According to it, the ECtHR “merely” establishes the compatibility of the result with ECHR law, without prejudice to any national or EU arrangement in the field of human rights. This could be interpreted as further clarifying where the line between EU and ECHR law is drawn as far as the Court is concerned, while at the same time making it clear that the Court does not intend to overstep that line by applying Convention standards (directly) to EU law.  

No doubt, this part of the Court’s decision will be interpreted as a reaction to the position taken by the CJEU in Opinion 2/13 (CJEU 18 December 2014, ECLI:EU:C:2014:2454) on the compatibility of the draft accession agreement of the EU to the ECHR. In that Opinion, which has been widely criticised (see, amongst others, here, here, and here), the CJEU essentially held that accession to the ECHR could threaten the autonomy of EU law. The Grand Chamber reacted to Opinion 2/13 in Avotiņš v. Latvia (ECtHR 23 May 2016, nr. 17502/07, ECLI:CE:ECHR:2018:0220DEC006752114), in which it confirmed that the so-called “Bosphorus presumption”, named after the 2005 judgment in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland, still stands firmly, although by no means unconditionally.

The interesting thing about Krombach II is that the question raised in it is not one along the usual lines (of whether any part of EU law is capable of violating ECHR standards), but rather a question of whether a fundamental right from EU law (i.e. Article 54 CISA) is capable of determining the scope and interpretation of a Convention right.  It is therefore interesting to note that this appears to raise some of the same sensitivities. One possible reason for this could be that if the Court were to interpret Convention rights like Article 4 of Protocol 7 ECHR in accordance with provisions from EU law like Article 54 CISA in situations in which EU member states are involved, this would effectively allow the Court to rule on (parts of) EU law indirectly, though the interpretation and application of Convention rights. Whether the CJEU was actually concerned about such a “backdoor issue” or not, the Court’s decision in Krombach II makes it very clear that this will not happen. In doing so, the Court also makes it clear that it intends to conduct itself in the most diplomatic and respectful way possible vis-à-vis the Luxemburg court, in the very sensitive area between the Convention and EU law.  

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