OPINION OF ADVOCATE GENERAL
RUIZ-JARABO COLOMER
delivered on 8 April 2008 (1)
Case C‑297/07
Staatsanwaltschaft Regensburg
v
Klaus Bourquain
(Reference for a preliminary ruling from the Landgericht Regensburg, Germany)
(Question referred for a preliminary ruling under Article 35 EU – Schengen acquis – Convention implementing the Schengen Agreement – Interpretation of Article 54 – Ne bis in idem principle – Conviction in absentia – Res judicata – Condition of non-enforcement of the penalty)
I – Introduction
1. Over the last five years the Court of Justice has defined the blurred outlines of the ne bis in idem principle, by means of case-law (2) to which I have had the privilege of contributing, (3) in which the specific circumstances of the cases being heard do not overshadow its underlying aspiration to generality.
2. Just as, when we look at a painting, the right way to obtain an overall view is to stand back from the object painted because, otherwise, we run the risk that the retina will pick up only the strokes, texture and mass of colours, and will fail to capture the full meaning of the work.
3. Sometimes, this course of action becomes really difficult, as in this case, which arises in part out of the paradoxical behaviour of a person who seeks to ensure his own well-being by invoking his own death sentence, (4) pronounced 47 years previously, in order to activate the ne bis in idem principle. Herein lies the greatness and the inadequacy of the law.
II – Legal framework
A – The Schengen acquis
4. The body of law in question consists in:
(a) the Agreement signed on 14 June 1985 in the Luxembourg town which gives it its name by the States comprising the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders; (5)
(b) the Convention implementing that agreement, signed on 19 June 1990 (‘the Convention’), (6) which establishes cooperation measures to counteract the effect of the elimination of those checks;
(c) the accession protocols and instruments of the other Member States, the declarations and decisions of the Executive Committee created under the Convention, and those of the organs upon which that Committee has conferred decision-making powers; (7)
5. Protocol (No 2) to the Treaty on European Union and to the Treaty establishing the European Community (‘the Protocol’) integrated that acquis into the framework of the Union and, by virtue of the first subparagraph of Article 2(1), has applied to the 13 States set out in Article 1, (8) since the entry into force of the Treaty of Amsterdam (1 May 1999).
6. Council Decision 2007/801/EC of 6 December 2007 (9) has considerably extended the territorial scope of the acquis, declaring its provisions fully applicable in the Czech Republic, the Republic of Estonia, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic.
7. The United Kingdom (10) and the Republic of Ireland (11) have not subscribed fully to that common project, and have chosen to participate on an ad hoc basis.
8. The Republic of Cyprus, (12) the Republic of Bulgaria and the Republic of Romania, (13) although bound by the aforementioned body of rules after joining the European Union, require the intercession of the Council, in order to verify that the conditions for their application have been satisfied.
9. Of the countries which do not belong to the European Union, the Republic of Iceland and the Kingdom of Norway are required under Article 6 of the Protocol to implement and develop the Schengen acquis, which has been in force in those countries since 25 March 2001. (14) There is also an Agreement of association with Switzerland concerning the implementation, application and development of the aforementioned aquis, (15) to which the Principality of Liechtenstein will probably accede, pursuant to a proposal for a decision drawn up by the Council. (16)
10. The aim, according to the preamble to the Protocol, is to enhance European integration and, in particular, to enable the Union to develop more rapidly into an area of freedom, security and justice.
11. Pursuant to the second subparagraph of Article 2(1) of the Protocol, on 20 May 1999 the Council adopted Decisions 1999/435/EC and 1999/436/EC, in which it defined the Schengen Agreement and, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, determined the legal basis for the provisions which constitute the acquis. (17)
B – In particular, the ne bis in idem principle
12. Title III of the Convention, ‘Police and Security’, begins with a chapter on ‘Police Cooperation’ (Articles 39 to 47) and continues with another concerning ‘Judicial Assistance in Criminal Matters’ (Articles 48 to 53).
13. Chapter Three, under the heading ‘Application of the ne bis in idem principle’ consists of Articles 54 to 58, which have their legal basis, according to Article 2 and Annex A of Decision 1999/436, in Articles 34 EU and 31 EU.
14. Article 54 of the Convention provides:
‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’
C – French law
15. I share the views of some of those who have joined (18) the discussions in these preliminary ruling proceedings regarding the paucity of the information provided by the order for reference regarding the applicable French provisions. (19)
16. Nevertheless, under Article 120 of the Code of Military Justice, (20) a person convicted in absentia could lodge an appeal against his sentence within five days following notification thereof; it is generally the case in proceedings held in absentia, that there is no record of such notification having been effected, in which case the aforementioned Article 120 provided that an appeal could be lodged up to the date on which the penalty became time-barred.
17. The Code of Criminal Procedure (21) provides that enforcement of a penalty becomes time-barred after 20 years, to be calculated from the time the penalty is imposed. (22)
18. When these provisions are taken together, it appears that a judgment given in absentia, where it is not known for certain that it was notified to the party concerned, (23) becomes unchallengeable (24) after 20 years have elapsed since it was pronounced, and it should be remembered that, in the present case, the period of prescription coincides with the period granted for applying for a review. (25)
III – The facts, the main proceedings and the question referred for a preliminary ruling
19. Klaus Bourquain, a German citizen serving in the Foreign Legion, (26) was tried and convicted of murder in absentia, and sentenced to death on 26 January 1961 by the Permanent Military Tribunal of the Eastern Zone of Constantine, in Bône. (27)
20. That military tribunal held, pursuant to the French Criminal Code applicable at the time, that it was proved that, on 4 May 1960, while trying to desert at the Algerian-Tunisian border, in the province of El Tarf, (28) Mr Bourquain shot dead another member of the Foreign Legion, also German, who was trying to prevent him from escaping.
21. The convicted man never appeared before the Tribunal, because he fled to the German Democratic Republic; the sentence was not carried out, but his property was placed under sequestration as security for costs.
22. Following that judgment, no further criminal proceedings were brought against Mr Bourquain either in France or Algeria; however, proceedings were initiated in the Federal Republic of Germany, whose authorities issued an arrest warrant in 1962, addressed to the German Democratic Republic, which refused it.
23. In 2002, the Staatsanwaltschaft Regensburg (Regensburg Public Prosecutor’s Office) brought proceedings against Mr Bourquain, to try him in Germany for the same crime.
24. However, at that time, the punishment imposed by the judgment of 26 January 1961 could not be enforced in France because (1) an amnesty had been granted there in 1968 (29) in respect of crimes committed by military personnel during the hostilities in Algeria; (2) in 1981 enforcement of the sentence was time-barred; and (3) in that year capital punishment was abolished. (30)
25. At this juncture, the Landgericht Regensburg obtained an expert opinion from the Max-Planck-Institut für ausländisches und internacionales Strafrecht (Institute for Foreign and International Criminal Law), according to which even though, owing to the specific features of French law, it could not be directly enforced, the judgment given in absentia had the status of a final judicial decision in formal and substantive terms, resulting in further criminal proceedings for the same acts being barred.
26. Furthermore, the Landgericht Regensburg requested information, pursuant to Article 57 of the Convention, from the French Ministry of Justice as to whether the judgment of 26 January 1961 precluded the initiation of further proceedings in Germany, in accordance with Article 54 of the Convention.
27. The public prosecutor of the Tribunal aux armées, Paris, confirmed that the judgment has the status of a final judicial decision because it has been irreversible since 1981, and that it cannot be enforced in France because the penalty is time‑barred; he considered, however, that the ne bis in idem principle of the Convention is not applicable to this case. (31)
28. These contrary opinions raise doubts for the Landgericht Regensburg which, in the order for reference, seeks to ascertain whether Article 54 of the Convention requires the penalty to have been enforceable at some juncture. It argues that as a consequence of the right to seek a retrial during the limitation period, (32) the sentence cannot be enforced until the end of that period, which is the precise moment at which enforcement of the sentence becomes time-barred. (33)
29. The Landgericht Regensburg has therefore suspended proceedings and referred the following question to the Court of Justice for a preliminary ruling:
‘May a person whose trial has been finally disposed of in one Contracting Party be prosecuted in another Contracting Party for the same acts; when, under the laws of the sentencing Contracting Party, the sentence imposed on him could never have been enforced?’
IV – The proceedings before the Court of Justice
30. The order for this reference for a preliminary ruling was lodged at the Court Registry on 21 June 2007.
31. Observations were submitted, within the time-limit laid down in Article 23 of the EC Statute of the Court of Justice, by Mr Bourquain, the Commission and the Czech, Hungarian, Netherlands and Portuguese Governments.
32. After the general meeting held on 19 February 2008, I was notified, on 27 February, that the period within which a hearing could be requested had expired on 25 February without such a request being made. Therefore, since that notification, the case has reached the stage at which an opinion may be delivered.
V – Analysis of the question referred for a preliminary ruling
A – A few preliminary points concerning the ne bis in idem principle inthe Schengen acquis
1. The dual expression of the principle
33. The scope accorded by the Court of Justice to the ne bis in idem principle has varied depending on whether it concerns the area of competition (34) or that of the ‘third pillar’ of the European Union: in both areas it has referred to the prohibition against double penalties, but only in the latter (35) does it extend the principle to the possibility of being prosecuted twice for the same acts (nemo debet bis vexart pro una et eadem causa).
34. The full recognition of foreign criminal judgments represented a real challenge for Community law and the Court of Justice, without shirking its responsibility, declared, under the auspices of the freedom of movement of persons, that Article 54 of the Convention ensures that persons whose trials have been finally disposed of are able to exercise that fundamental freedom without having to fear a fresh prosecution in another contracting State for the same acts. (36)
2. Its traditional bases
35. Article 54 of the Convention, prevents a person from being subject, in respect of the same unlawful conduct, to more than one penalising procedure and, possibly from being punished repeatedly, thus avoiding the unacceptable repetition of the exercise of the ius puniendi. (37)
36. Legal certainty provides the accused in criminal proceedings with the guarantee that he will not be prosecuted a second time for his acts, if he has been acquitted, and that a further penalty will not be imposed, if he has been convicted.
37. Furthermore, the role of equity as a basis for the proportionality rule which prevents the accumulation of penalties (38) must not be forgotten, since although every penalty, in addition to being designed to rehabilitate, (39) has the dual purpose of punishment and deterrence by curbing misconduct and discouraging other possible offenders, it also has to be proportionate to those purposes, keeping an appropriate balance in order to punish the conduct which is being penalised whilst, at the same time, serving as an example.
38. Finally, as a structural requirement of the legal system, the lawfulness of the ne bis in idem principle is also founded on respect for res judicata.
3. Its most recent developments
a) From trust between States …
39. This concept, which is still new in the construction of a European criminal justice system, underlies the principle of mutual recognition, (40) introduced in paragraph 33 of the conclusions of the Tampere European Council of 16 October 1999. (41)
40. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (42) unambiguously postulates a high level of confidence between Member States (recital 10).
41. Those elements presaged an early pronouncement by the Court of Justice which, at the first opportunity it was offered, (43) stressed the importance of mutual trust, crucial to the implementation of Article 54 of the Convention, so that each of the Member States must recognise the criminal law in force in the other Member States, even if the outcome would be different if its own national law were applied; in other words, from the point of view of its purpose and effects, mutual trust is a touch utilitarian when it supports the principle of mutual recognition.
42. However, although the clarification thus given by the Court of Justice can be helpful to finding a solution in some cases, it is inadequate in others, above all because the mechanism of enhanced cooperation gives the national courts an important role, which requires significant interpretative skills. (44)
43. An appropriate way of dealing with confused situations would be to harmonise (45) the substantive and procedural criminal law of the Member States, since the apprehension felt when taking decisions in this branch of the law will normally be reduced by the realisation that the criminal judgments delivered in another State include the same safeguards.
44. Meanwhile, the ne bis in idem principle continues to be the standard-bearer for mutual trust, since, irrespective of whether convergence becomes a reality one day, Article 54 of the Convention is not dependent on the approximation of the criminal laws of the Member States; (46) on the contrary, its validity is reinforced precisely because there is no such approximation.
45. Although it must be assumed that there is, between the States, a respect for certain conditions, especially regarding fundamental rights, experience shows that mutual trust applies in a similar way to a normative principle which encapsulates the interpretative rules concerning obligations relating to the ‘third pillar’, fulfilling a role similar to that of loyal cooperation. (47)
46. Mutual recognition, although it originates in the abstract field of cooperation between States, materialises in the most tangible of individual safeguards (48) and extends to the verification of usual standards in the area of rights, where its regular invocation by lawyers increases the likelihood of mutual understanding.
b) … to recognition of an individual right
47. In spite of the progress which has been made, a tremendous effort is still required to liberate the fundamental freedoms (such as freedom of movement) from the prohibition against prosecuting or penalising a person ‘twice for the same acts’, the justification for which lies in the degree of integration achieved in a European Union which views the citizen as the holder of rights and the ultimate beneficiary of legislative safeguards. (49)
48. However, I see no obstacle to supplementing (not replacing) the guidelines for cooperation between States, founded on mutual trust, with an approach which applies the fundamental rights as a reference framework, (50) since the ne bis in idem principle is an expression of judicial protection vis-à-vis the ius puniendi, derived from the right to a fair trial, (51) and as such it has the status of a constitutional provision in a number of the States that are parties to the Schengen Agreement. (52)
49. The ne bis in idem rule acquires true legislative weight with the creation of a subjective right to be prosecuted only once for the same acts, (53) thus being set on solid foundations, which help to offset the weakness (54) of some institutions, like limitation, res judicata or the numerous proportionality theories, which cannot be satisfactorily resolved only by recourse to the mutual trust between States. (55)
50. A clearer glimpse of this horizon is given with the independent declaration of the ne bis in idem principle in the Charter of the Fundamental Rights of the European Union, (56) Article 50 of which provides that ‘[n]o one shall be liable to be tried or punished again in criminal proceedings for an offence of which he or she has already been finally acquitted or convicted within the Union in accordance with the law’.
51. Among the many facets of fundamental rights, particular relevance attaches to the limits, and even exceptions, which they set with regard to mutual recognition, (57) always bearing in mind that those rights apply as common principles in the Member States. (58)
B – The meaning of ‘finally disposed of’
52. The terms in which the Landgericht Regensburg formulates the question show that its doubts are limited to the scope of Article 54 of the Convention, which prohibits a further prosecution for the same acts where, if a penalty has been imposed, it ‘can no longer be enforced’.
53. Nevertheless, the facts of the case make it necessary, first, to examine whether the judgment given in absentia constitutes a decision ‘finally disposing’ of a trial for the purposes of the aforementioned provision, by assessing the impossibility of directly enforcing the penalty imposed owing to the procedural requirement for a retrial once the absentee had been found.
1. Its interpretation
54. The judgment in Kretzinger, cited above, avoids this issue, (59) stating in paragraph 67 that it was ‘not necessary to examine ... whether a judgment given in absentia, the enforceability of which may be subject to conditions under Article 5(1) of the Framework Decision, must be regarded as a decision by which a person’s “trial has been finally disposed of” within the meaning of Article 54 of the CISA’.
55. However, the Court of Justice has supported a broad criterion, which reaffirms the need to respect, within the European Union, decisions putting an end to the trial of the accused in accordance with the law of the State in which the proceedings were initiated.
56. Accordingly, it included in the concept of a case finally disposed of a decision by which the Public Prosecutor discontinued criminal proceedings without the involvement of a court (Gözütok and Brügge), and decisions finally acquitting the accused, either for lack of evidence (Van Straaten) or because prosecution of the offence was time-barred (Gasparini).
57. Moreover, although there are differences between the various language versions of Article 54 of the Convention, (60) the teleological objective of supporting the movement of persons is stated unanimously in the area of freedom, security and justice; this purpose would be undermined if, owing to the particularities of the national procedural systems, a broad interpretation of ‘case finally disposed of’ were not accepted.
58. The archetype of res judicata (61) gives the judgment a legal status which cannot be altered by any challenge, because the judgment is not open to appeal or because an appeal has not been lodged within the prescribed period. (62)
2. The judgment given in absentia
59. The different approaches taken by the States with regard to judgments given in absentia constitute an obstacle to smooth cooperation in criminal matters, which does not pass unnoticed by recent initiatives, (63) which achieve a certain unity by reinforcing the criteria with common rules designed to reduce those differences.
60. In the present case, a possible subsequent trial would clearly diminish, for the purposes of Article 54 of the Convention, the ‘final’ nature of the judgment of the Tribunal de Bône.
61. However, that was a fleeting doubt since, as the Prosecutor of the Tribunal aux armées, Paris, maintains, the judgment had the status of res judicata in 1981, that is to say, before the proceedings were initiated in Germany, and therefore cannot be challenged (64) in the sphere of Community law.
62. Nevertheless, it is for the Court of Justice to note that Article 54 of the Convention does not require the judgment to acquire the status of a final judgment when it is delivered, since it is sufficient for that condition to be met when the second proceedings are brought, (65) which, in Mr Bourquain’s case, was 2002, when the decision of the military tribunal had already acquired the status of res judicata under French law.
63. Furthermore, according to various instruments, (66) the presence of the accused during the trial ensures the proper conduct of his defence and his right to due process (67) and Framework Decision 2002/584 (68) even provides that the issuing State, when it wishes to enforce a penalty imposed in absentia, may be required to give a clear assurance that the convicted person may ask for a retrial during which his fundamental rights will be observed.
64. To transform this safeguard for the accused into a condition which invalidates the application of other rights would lead to an absurd situation; this would occur if application of the ne bis in idem principle were limited to decisions precluding any review of the case to his advantage.
65. For the reasons stated, the judgment given in absentia should be regarded as ‘final’ for the purposes of the application of Article 54 of the Convention.
C – The condition of ‘non-enforcement of the penalty’
66. In these preliminary reference proceedings, it is generally agreed that, when the action was initiated in Germany, the penalty was not enforceable in France, since, apart from the fact that it was time-barred, France had abolished capital punishment and, even earlier, had passed an Amnesty Law in respect of events in Algeria.
67. However, the question posed by the Landgericht Regensburg seeks to ascertain whether the obstacle to enforcement of the penalty has to be subsequent to its imposition, an argument supported by the Hungarian Government, which points out that Article 54 of the Convention allows obstacles to arise later but does not envisage a situation in which a punishment is unenforceable from the onset, as in this case, in which the requirement for a retrial, which was necessary if the penalty was to become a reality, was impossible to fulfil because Mr Bourquain failed to appear.
68. The Hungarian Government relies on the actual wording of Article 54 that the penalty ‘can no longer be enforced’, in order to infer, asensu contrario, that at some moment in the past it could have been enforced.
69. This argument is not persuasive, because the literal meaning of the words is not always an appropriate point of reference, as the Court of Justice has warned on occasion; (69) moreover, in my view, the brevity of the formulation indicates only that the enforceability of the penalty becomes an issue when it is sought to bring new proceedings, and not before, which means that the rule still has practical effect.
70. However, Article 54 covers national criminal provisions which, on account of their nature as ultima ratio, preclude any broad interpretation (70) contrary to the principle of legality, (71) applicable in the common traditions (72) of the States and given positive expression (73) in Community law.
71. Without prejudice to the above, it is interesting to note the Netherlands Government’s observation regarding the difficulty of imagining that a judgment finally disposing of a case should impose non-enforceable penalties. (74)
72. Special care must be taken to assess the exact scope of the provision, which refers to the enforceability of the penalty, not of the judgment.
73. That warning having been given, a distinction must be made between judgments which are final and immediately enforceable and those which are not, (75) since, although French legislation does not permit the execution of the penalty without a retrial, it does not diminish the value of the judgment as a legal document extending ipso iure over the person and property of the accused, as is demonstrated by the resolution of the issue of Mr Bourquain’s liability, in the event of his being found, in a new trial concerning the earlier judgment, and by the seizure of his assets.
74. In parallel, the penalty would become enforceable following the removal of the procedural obstacle which rendered it of no practical effect, but did not otherwise affect its intrinsic validity, (76) which is to be distinguished from its mere effectiveness.
75. For the reasons I have stated, I propose that the Court of Justice interpret Article 54 of the Convention as meaning that its protection also extends to a penalty imposed in a final judgment which, owing to the procedural idiosyncrasy of the national law, could never have been executed.
D – Amnesty, the ne bis in idem principle and the differences between them
76. It is not legal escapism to omit to address the manner in which the abolition of the death sentence and the time-bar on the penalty prevent execution of the judgment of the Tribunal of Bône: the fact that it is obvious, on the one hand, and respect for the sole jurisdiction of the national court, on the other, would render any reasoning superfluous and inappropriate.
77. However, caution dictates that I reflect, albeit briefly, on the implications of amnesty, in view of the various guises taken by this exceptional mechanism of mercy in the different legal systems.
78. Additional Protocol II to the Geneva Convention (77) likens amnesty to a feeling of pacification and reconciliation, following periods of upheaval involving violent clashes within a community.
79. It is necessary to appease hostile feelings, of very specific origin, generated in events of a collective nature, which have politically and socially divided the population.
80. ‘Amnesty’ is the term used to designate, loosely, (78) any measures to remit or cancel penalties, including a pardon, (79) as opposed to other concepts which restrict amnesty to general parliamentary decisions, adopted in accordance with the national procedures for enacting legislation.
81. The differences which occur within Europe in relation to these measures of clemency, seen from such diverse perspectives as their typology or purpose, as well as the category of offence which they may redeem, (80) do not impair their capacity to extinguish the ius puniendi in all the States nor do they alter the undeniable fact that, by implementing such measures, non-judicial authorities abrogate the effects of a sentence in a criminal case. (81)
82. This collection of measures for granting clemency, which is inconsistent in the disparity of the ideas it brings together but consistent in respect of the objectives it serves, shows real signs of political intent, supported by principles of expediency whose roots lie in the sovereignty of States, as an expression of the management of their own conflicts.
83. Mutual trust should not shelter, under the Community ne bis idem principle, instances of non-enforcement of a penalty brought about by the exercise of these exorbitant national powers, since mutual recognition then ceases to operate in the sphere of the judicial application of the law and follows a different course, driven by winds with a strong sociological and political component.
84. It is not by chance that the Framework Decision on the European arrest warrant gives amnesty as a ground for mandatory non-execution, where that State had jurisdiction to prosecute the offence under its own criminal law (Article 3(1)).
85. From the perspective of human rights, amnesty likewise cannot be used to justify non-enforcement of the penalty by application of the ne bis in idem principle, since, apart from the fact that it may become an instrument endangering the implementation of those rights, (82) two different dimensions are again observed: its basic inspiration does not flow from the values enshrined in the fundamental rights and, at the same time, it acts according to parameters which are so broad and random that they transcend the traditional ones of judicial rationality, limiting the opportunity for judicial review. (83)
VI – Conclusion
86. In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the question referred for a preliminary ruling:
Article 54 of the Convention of 19 June 1990 implementing the Schengen Agreement must be interpreted as meaning that a person whose trial has been finally disposed of in one State cannot be prosecuted in another for the same acts, where, under the law of the State in which he was convicted, the penalty imposed on him could never be enforced.