Sunday, May 27, 2018

KROMBACH V. FRANCE


In its decision in the case of Krombach v. France (application no. 67521/14) the European Court of
Human Rights has unanimously declared the application inadmissible. The decision is final.
The case concerned Mr Krombach’s criminal conviction in France for events in respect of which he
submitted that he had previously been acquitted in Germany. The facts concerned the
circumstances surrounding the death of Kalinka Bamberski in 1982 at Mr Krombach’s home in
Germany. The case raised the question of the right not to be tried or punished twice (ne bis in idem).
Pursuant to its constant case-law, the Court held that Article 4 of Protocol No. 7 (right not to be tried
or punished twice) did not prevent an individual from being prosecuted or punished by the courts of
a State Party to the Convention on the grounds of an offence of which he or she had been acquitted
or convicted by a final judgment in another State Party. Since Mr Krombach had been prosecuted by
courts in two different States, namely Germany and France, Article 4 of Protocol No. 7 did not apply.

Principal facts

The applicant, Dieter Krombach, is a German national who was born in 1935. According to the
information available to the Court, he is in prison in Paris.
Kalinka Bamberski, aged 15, was Mr Krombach’s stepdaughter and the daughter of
André Bamberski. The latter had lodged a complaint in Germany and France against Mr Krombach,
whom he suspected of raping and then murdering his daughter. Between 1982 and 1986 the
German authorities carried out several investigations and issued four decisions discontinuing
proceedings, on the basis that there was insufficient evidence to justify a prosecution. As Ms
Bamberski was a French national, criminal proceedings had also been opened in France against Mr
Krombach.
In 1995 the Paris Assize Court sentenced him in his absence to 15 years’ imprisonment for assault
resulting in unintentional death. In its judgment Krombach v. France (no. 29731/96) of 13 February
2001, the European Court of Human Rights held that this conviction had been in violation of Article 6
(right to a fair trial) of the Convention and Article 2 of Protocol No. 7 (right of appeal in criminal
matters). By a judgment of 10 December 2008, the Court of Cassation quashed and set aside, in the
interests of the law, the assize court judgment of 1995.
Mr Krombach remained at liberty in Germany until André Bamberski organised his abduction and
removal to France: on 18 October 2009 he was deposited in Mulhouse (France), having been tied up,
gagged and injured; he was arrested and placed in pre-trial detention. In October 2011 the Paris
Assize Court sentenced him to 15 years’ imprisonment for assault resulting in Ms Bamberski’s
unintentional death. That judgment was upheld on appeal, and an appeal on points of law by
Mr Krombach was dismissed.

Complaints, procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 9 October 2014.
Mr Krombach complained of a violation of Article 4 of Protocol No. 7 (right not to be tried or
punished twice).
The decision was given by a Chamber of seven, composed as follows:
Angelika Nußberger (Germany), President,
Erik Møse (Norway),
Ganna Yudkivska (Ukraine),
André Potocki (France),
Síofra O’Leary (Ireland),
Mārtiņš Mits (Latvia),
Gabriele Kucsko-Stadlmayer (Austria), Judges,
and also Milan Blaško, Deputy Section Registrar.

Decision of the Court

Article 4 of Protocol No. 7

The Court had consistently held that Article 4 of Protocol No. 7 only concerned “courts in the same
State” and therefore did not prevent an individual from being prosecuted or punished by the courts
of a State Party to the Convention on the grounds of an offence of which he or she had been
acquitted or convicted by a final judgment in another State Party.

Furthermore, the Court considered that the fact that France and Germany were members of the
European Union did not affect the applicability of Article 4 of Protocol No. 7. Although European
Union law lent a trans-State dimension to the ne bis in idem principle at the EU level, the Court
reiterated that it had no jurisdiction to apply European Union rules or to assess alleged violations of
the latter, unless and in so far as such violations might have infringed the rights secured under the
Convention. It was therefore not the Court’s task to judge whether Mr Krombach’s prosecution in
France and his subsequent conviction had contravened European Union law. Moreover, the Court
emphasised that the Convention did not prevent States Parties from granting wider legal protection
to the rights and freedoms which it guaranteed than that which it implemented under domestic law,
other international treaties or European Union law.

In conclusion, the Court held that since Mr Krombach’s prosecution had been carried out by courts
in two different States, that is to say Germany and France, Article 4 of Protocol No. 7 did not apply to
the present case.

The complaint under Article 4 of Protocol No. 7 was incompatible with the provisions of the
Convention. It therefore had to be rejected as being inadmissible.

The decision is available only in French

(This press release is a document produced by the Registry)

Un comentario sobre esta decisión de inadmisibilidad:

"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

Wednesday, May 23, 2018

LA REVOCACIÓN DE LOS ACTOS TRIBUTARIOS

La figura de la revocación de los actos tributarios se halla prevista en el art. 219 de la Ley 58/2003, de 17 de diciembre, General Tributaria:



La figura de la revocación de los actos tributarios se halla prevista en el art. 219 de la Ley 58/2003, de 17 de diciembre, General Tributaria -LGT- (EDL 2003/149899). Dicho instituto se presentó como una de las grandes novedades de la vigente LGT durante la tramitación de dicho texto. Así, por ejemplo, se recogía en el Diario de Sesiones del Congreso de 25 de septiembre de 2003, p. 14740. Sin embargo, no deja de ser un precepto que presenta notorias ambigüedades e imprecisiones, a lo que han contribuido también las grandes discrepancias existentes, para doctrina y Jurisprudencia sobre su propia naturaleza jurídica.
Estudiaremos en el presente trabajo la verdadera naturaleza de esta controvertida figura, intentando encontrar el espíritu del legislador cuando diseñó la misma, y que, en mi opinión presenta una gran tendencia expansiva que, sin embargo, la Jurisprudencia del TS no ha sabido valorar, sin llegar a comprender el verdadero alcance que le quiso dar el legislador, y desconociendo, sobre todo, que se trata de una figura jurídica al servicio de la Justicia tributaria. El art. 219 LGT es un precepto que tiene una enorme virtualidad y extensión jurídica, pero que su inicio de oficio no puede hacer desconocer la verdadera naturaleza jurídica de esta figura, hasta el punto de distorsionar la misma, como así ha parecido entender la reciente Jurisprudencia del Tribunal­ Supremo -TS-, no obstante las previsiones favorables que hacía vislumbrar la Sentencia del TS de 19 de febrero de 2014 (EDJ 2014/42856).
En todo caso, el objeto de este trabajo no pretende tanto realizar un estudio sistemático de la revocación de los actos tributarios, como de analizar las cuestiones más problemáticas que plantea la nueva doctrina del TS, en relación con la naturaleza y alcance de dicho instituto, hasta el punto de que puede llegar a poner en cuestión la esencia del mismo, aunque parezca que en el ámbito local pueda dar mucho juego.
Magistrado de la Audiencia Nacional.

Tuesday, May 1, 2018

EL PLÁSTICO MATA

Conceptos Básicos: Descubre la verdad sobre la contaminación por plásticos y sus efectos tóxicos en las personas y el medio ambiente