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.
