Abstract
Two different events—one full of sad human implications (Krombach), the other mostly financial (Gambazzi)—gave rise to two extremely important decisions by the EU Court of Justice dealing with the public policy exception. Both judgments address the problem of the respondent’s forced non-attendance in the a quo proceeding, pointing out the evaluation criteria for the exequatur to the judge of recognition.
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Notes
- 1.
The European Court of Human Rights (ECtHR) in its judgement in Krombach v. France recalled the following: “The Assize Court explained in its judgement that if the applicant had reported to the Authorities, it would have been able to discontinue the in absentia procedure and the applicant would have been able to make any requests that would assist in his defence when complying with that mandatory procedural requirement. It also reminded the applicant’s lawyers, who were present at the hearing, that Article 630 of the Code of Criminal Procedure prohibited representation for absent defendants and laid down their submissions were inadmissible” (ECtHR: Krombach v. France, 29731/96, Judgment (13 February 2001), para 46). Article 630 of the French Code of Criminal Procedure has been repealed by Law no. 2004-204.
- 2.
This can be read at para 15 of the 28 March 2000 judgment issued by the European Court of Justice (ECJ: Dieter Krombach v. André Bamberski, C-7/98, Judgment (28 March 2000)); the judgement issued by the ECtHR reports that K. “was founded guilty of voluntary assault on his stepdaughter unintentionally causing her death” (ECtHR: Krombach, supra n. 1, para 45).
- 3.
The European Convention on Extradition (Paris, 13 December 1957), entered into force on 18 April 1960, at that time in force between France and Germany, conferred to the contracting parties the power to deny extradition of their own citizens (Article 6.1.a) and Article 16.II of the fundamental law of the Federal Republic of Germany drastically states: “It is not allowed to extradite a German citizen”.
- 4.
Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the Gradual Abolition of Checks at their Common Borders (19 June 1990), entered into force on 1st September 1993.
- 5.
Entered into force on 1st January 1973.
- 6.
The reasoning of the Court is remarkable when stressing that fundamental rights form an integrated part of the general principles of law whose observance the Court ensures and that, for such a purpose, the Court drew inspiration from the constitutional traditions common to Member States and from the guidelines supplied by international treaties for the protection of human rights. Nonetheless, it has to be noted that the issue of the impact of individual fundamental rights has faced a progressive simplification further to the adoption of the Charter of Nice and now with the “constitutionalisation” that has affected it pursuant to Article 6.1 of the Treaty establishing the European Union (as amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (Lisbon, 13 December 2007), entered into force on 1st December 2009).
- 7.
Brussels Convention of 1968, Protocol Annexed.
- 8.
ECJ: Krombach, supra n. 2, para 44.
- 9.
The Jenard Report explains that this provision, that certainly “includes road accidents”, is based on the Benelux Treaty and it “is relevant as in some legal orders, namely France, Belgium and Luxembourg, criminal decisions have to be deemed as res judicata as far as they concern subsequent claims for damage and therefore it is essential that the alleged liable person “can exercise his right of defence since the criminal proceeding has started”.
- 10.
ECJ: Siegfried Ewald Rinkau, C-157/80, Judgment (26 May 1981), para 12.
- 11.
Along the same lines, Advocate General Saggio had advised this in his opinion (paras 29–32, in particular para 31).
- 12.
ECJ: Krombach, supra n. 2, para 45.
- 13.
This is the reasoning of Pocar in the Explanatory Report on the Lugano Convention of 2007 (in Official Journal of European Union, C 319, 23 December 2009; the Italian version is also published in Rivista di diritto internazionale privato e processuale (2010), p. 244 ss.). In the opinion delivered by Advocate General Kokott in the Gambazzi case one can read the following: “In Krombach the Court itself could establish that the proceedings before the court of the State constituted a manifest breach of the fundamental right to a fair trial” (ECJ: Marco Gambazzi v. Daimler Chrysler Canada Inc. and CIBC Mellon Trust Company, C-394/07, Judgment (2 April 2009), para 46).
- 14.
53 Neue Juristische Wochenschrift, 2000, p. 3289.
- 15.
European Union, Council Regulation (EC) No. 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.
- 16.
Entered into force on 1st January 2010.
- 17.
Protocol no. 1 on Certain Questions of Jurisdiction, Procedure and Enforcement to the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Lugano, 16 September 1988).
- 18.
A reference to this circumstance can be found at point 5 of the preamble to Regulation No. 44/2001, whilst an extensive and detailed reconstruction of what occurred is offered by the Explanatory Report of the Lugano Convention, written by Fausto Pocar. The Report mentions that the group of experts discussed the provision of Article II of the Protocol, opting eventually for its maintenance also “in order to avoid forceful interference in the criminal law of the States in a Convention dealing with civil and commercial matters” (para 65). Nonetheless—as the Report noted—what has now become Article 61 of Regulation No. 44/2001 and of the Lugano Convention of 2007, has to be read in the light of the Court of Justice’s ruling in the Krombach case.
- 19.
Entered into force on 3 September 1953.
- 20.
Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Strasbourg, 22 November 1984), entered into force on 1 November 1988.
- 21.
ECtHR: Krombach, supra n. 1. In their ruling the Strasbourg judges acknowledged the preliminary ruling proceedings held in Luxembourg, quoting the ECJ in the part reproduced above (para 53), and admitted that, further to the judgement of the Court of Justice, the Bundesgerichtshof had dismissed Bamberski’s application for an order to enforce the civil judgement delivered by the French Assize Court.
- 22.
ECtHR: Colozza v. Italy, 9024/80, Judgment (12 February 1985).
- 23.
ECtHR: Krombach, supra n. 1, para 88.
- 24.
Ibidem, para 89.
- 25.
Ibidem, para 90.
- 26.
Ibidem, para 100.
- 27.
The issue, which reads in Latin male captus bene detentus and seems to answer in the affirmative, has been frequently addressed both by literature and the case law. It must nonetheless be noted that, differently from the circumstances of the case at hand, in most of the cases the responsibility to arrest the person prosecuted or convicted can be directly or indirectly assigned to the State which has an interest in triggering a judicial procedure against the person or to enforce a criminal sanction which has already been imposed. Recently the expression extraordinary rendition has also been frequently used whenever the person concerned is arrested by foreign officers and this happens with the agreement or support of the local State. On this point, Carella 2009, pp. 111–123; Pedrazzi 2009, pp. 681–694.
- 28.
Gambazzi, supra n. 13.
- 29.
On this point see the in-depth essay by Cuniberti 2009, pp. 685–714. Particularly relevant is the reconstruction of the discussions over many months between the applicants and the English judge—which G and the other defendants were unaware of—before obtaining the authorisation to serve the application together with the decisive interim measures. The enforcement of the British judgements concerned was applied for not only in Italy but also in the United States, in France, in Switzerland and in Monaco, and Cuniberti’s contribution, which analyses these proceedings and the ruling of the Court of Justice, also informs us that the case had also been referred to the ECtHR, “mais elle ne daigna pas s’y intéresser” (p. 686).
- 30.
Gambazzi, supra n. 13, para 11.
- 31.
Ibidem, paras 12–18.
- 32.
Ibidem, para 19.
- 33.
Ibidem, para 32.
- 34.
Ibidem, para 33.
- 35.
Ibidem.
- 36.
ECJ: Andrew Owusu v. N. B. Jackson, trading as “Villa Holidays Bal-Inn Villas” and Others, C-281/02, Judgment (1 March 2005).
- 37.
ECJ: Gregory Paul Turner v. Felix Fareed Ismail Grovit, Harada Ltd and Changepoint SA, C-159/02, Judgment (27 April 2004); ECJ: Allianz SpA and Generali Assicurazioni Generali SpA v. West Tankers Inc., C-185/07, Judgment (10 February 2009).
- 38.
ECJ: Gambazzi, supra n. 13, para 41.
- 39.
Ibidem, paras 41–45.
- 40.
Ibidem, para 47.
- 41.
Rivista di Diritto Internazionale Privato e Processuale (2011), 47:1057.
- 42.
ECJ: Gambazzi, supra n. 13, para 45 and the Advocate General’s opinion, paras 25–27, 48.
- 43.
Emphasis added.
- 44.
European Commission, Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast), COM (2010) 748 def./2, 14 December 2010–3 January 2011.
References
Carella G (2009) Nominalismo e lotta al terrorismo internazionale: il caso delle extraordinary renditions. In: Venturini G, Bariatti S (eds) Individual rights and international justice. Liber Fausto Pocar, vol I. Giuffrè, Milan, pp 111–123
Cuniberti G (2009) La reconnaissance en France des jugements par défaut anglais. À propos de l’affaire Gambazzi-Stolzenberg. Revue critique de droit international privé 4:685–714
Pedrazzi M (2009) Irregular apprehension in international criminal law: male captus bene detentus? In: Venturini G, Bariatti S (eds) Individual rights and international justice. Liber Fausto Pocar, vol I. Giuffrè, Milan, pp 681–694
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Mosconi, F. (2013). Jurisdiction, Fair Trial and Public Policy: The Krombach and Gambazzi Cases. In: Boschiero, N., Scovazzi, T., Pitea, C., Ragni, C. (eds) International Courts and the Development of International Law. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-894-1_60
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