**Case C-297/07**

**Criminal proceedings**

**against**

**Klaus Bourquain**

(Reference for a preliminary ruling from the Landgericht Regensburg)

(Convention implementing the Schengen Agreement – Article 54 – ‘Ne bis in idem’ principle – Scope – Conviction in absentia in respect of the same acts – Concept of ‘finally disposed of’ – Procedural rules of national law – Concept of ‘penalty which can no longer be enforced’)

Summary of the Judgment

1.        *European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention
implementing the Schengen Agreement – Ne bis in idem principle*

*(Convention implementing the Schengen Agreement, Arts 54 to 58)*

2.        *European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention
implementing the Schengen Agreement – Ne bis in idem principle*

*(Convention implementing the Schengen Agreement, Art. 54)*

3.        *European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention
implementing the Schengen Agreement – Ne bis in idem principle*

*(Convention implementing the Schengen Agreement, Art. 54)*

1.        Since Article 54 of the Convention implementing the Schengen Agreement (CISA) does not provide that the person concerned must
necessarily have been tried in the territory of the Contracting Parties, that provision, the purpose of which is to protect
a person whose trial has been finally disposed of against further prosecution in respect of the same acts, cannot be interpreted
as meaning that Articles 54 to 58 of the CISA are never applicable to persons who have been tried by a Contracting Party exercising
its jurisdiction beyond the territory to which that Convention applies.

(see para. 30)

2.        Article 54 of the Convention implementing the Schengen Agreement (CISA), applied to a judgment in absentia delivered in accordance
with the national legislation of a Contracting State or to an ordinary judgment, necessarily implies that the Contracting
States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the
other Contracting States even when the outcome would be different if its own national law were applied.

According to the actual wording of Article 54 of the CISA, judgments rendered in absentia are not excluded from its scope
of application, the sole condition being that there has been a final disposal of the trial by a Contracting Party.

However, the sole fact that the proceedings in absentia would, under the national law governing the proceedings in question,
have necessitated the reopening of the proceedings if the person concerned had been apprehended while time was running in
the limitation period applicable to the penalty, does not, in itself, mean that the conviction in absentia cannot be regarded
as a final decision within the meaning of Article 54 of the CISA.

(see paras 35, 37, 40)

3.        The *ne bis in idem* principle, enshrined in Article 54 of the Convention implementing the Schengen Agreement (CISA), is applicable to criminal
proceedings instituted in a Contracting State against an accused whose trial for the same acts as those for which he faces
prosecution was finally disposed of in another Contracting State, even though, under the law of the State in which he was
convicted, the sentence which was imposed on him could never, on account of specific features of procedure of the law of that
State, have been directly enforced.

In that regard, the condition regarding enforcement referred to in that article is satisfied when it is established that,
at the time when the second criminal proceedings were instituted against the same person in respect of the same acts as those
which led to a conviction in the first Contracting State, the penalty imposed in that first State can no longer be enforced
according to the laws of that State.

(see paras 48, 52, operative part)


JUDGMENT OF THE COURT (Second Chamber)

11 December 2008 ([\*](#Footnote*))

(Convention implementing the Schengen Agreement – Article 54 – ‘Ne bis in idem’ principle – Scope – Conviction in absentia in respect of the same acts – Concept of ‘finally disposed of’ – Procedural rules of national law – Concept of ‘penalty which can no longer be enforced’)

In Case C-297/07,

Reference under Article 35 EU for a preliminary ruling from the Landgericht Regensburg (Germany), made by decision of 30 May
2007, received at the Court on 21 June 2007, in the criminal proceedings against

**Klaus Bourquain,**

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, J.‐C. Bonichot, J. Makarczyk, P. Kūris and L. Bay Larsen (Rapporteur),
Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Mr Bourquain, by C.-M. Engel, Rechtsanwalt,

–        the Staatsanwaltschaft Regensburg, by J. Plöd, Leitender Oberstaatsanwalt,

–        the Czech Government, by T. Boček, acting as Agent,

–        the Hungarian Government, by J. Fazekas, acting as Agent,

–        the Netherlands Government, by C. Wissels and M. de Grave, acting as Agents,

–        the Portuguese Government, by L. Fernandes, acting as Agent,

–        the Commission of the European Communities, by R. Troosters and S. Grünheid, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 8 April 2008,

gives the following

**Judgment**

1        This reference for a preliminary ruling concerns the interpretation of Article 54 of the 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 (OJ 2000 L 239, p. 19), signed in Schengen
(Luxembourg) on 19 June 1990 (‘the CISA’).

2        The reference was made in criminal proceedings instituted in Germany on 11 December 2002 against Mr Bourquain, a German national,
for murder, although criminal proceedings instituted in respect of the same acts against him by a prosecuting authority of
another Contracting State had already led on 26 January 1961 to his conviction in absentia.

**Legal framework**

*European Union law*

3        Under Article 1 of the Protocol integrating the Schengen acquis into the framework of the European Union, annexed to the Treaty
on European Union and to the Treaty establishing the European Community by the Treaty of Amsterdam (‘the Protocol’), thirteen
Member States of the European Union, including the Federal Republic of Germany and the French Republic, are authorised to
establish closer cooperation among themselves within the scope of the Schengen acquis as set out in the Annex to that Protocol.

4        The Schengen acquis thus defined includes, in particular, the Agreement 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, signed in Schengen on 14 June 1985 (OJ 2000 L 239, p. 13), and the CISA.

5        Pursuant to the second sentence of the second subparagraph of Article 2(1) of the Protocol, the Council of the European Union
adopted on 20 May 1999 Decision 1999/436/EC determining, in conformity with the relevant provisions of the Treaty establishing
the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute
the Schengen acquis (OJ 1999 L 176, p. 17). It is apparent from Article 2 of that decision, in conjunction with Annex A thereto,
that the Council selected Articles 34 EU and 31 EU as the legal bases for Articles 54 to 58 of the CISA.

6        Article 54 of the CISA, which forms part of Chapter 3, entitled ‘Application of the *ne bis in idem* principle’, of Title III thereof, itself entitled ‘Police and Security’, 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.’

7        Article 57(1) and (2) of the CISA provides:

‘1.       Where a Contracting Party charges a person with an offence and the competent authorities of that Contracting Party have reason
to believe that the charge relates to the same acts as those in respect of which the person’s trial has been finally disposed
of in another Contracting Party, those authorities shall, if they deem it necessary, request the relevant information from
the competent authorities of the Contracting Party in whose territory judgment has already been delivered.

2.       The information requested shall be provided as soon as possible and shall be taken into consideration as regards further action
to be taken in the proceedings under way.’

8        Article 58 of the CISA provides:

‘The above provisions shall not preclude the application of broader national provisions on the *ne bis in idem* principle with regard to judicial decisions taken abroad.’

9        The territorial scope of Articles 54 to 58 of the CISA is defined, as Article 6 of Decision 1999/436 indicates, in Article
138 of the CISA. That article provides:

‘As regards the French Republic, the provisions of [the CISA] shall apply only to the European territory of the French Republic.

...’

10      According to the information published in the *Official Journal of the European Communities* of 1 May 1999 (OJ 1999 L 114, p. 56) concerning the date of entry into force of the Treaty of Amsterdam, the Federal Republic
of Germany declared, pursuant to Article 35(2) EU, that it accepted the jurisdiction of the Court of Justice to give preliminary
rulings in accordance with the arrangements laid down in Article 35(3)(b) EU.

*National law*

11      The seventh to the ninth paragraphs of Article 120 of the Code of Military Justice for the French Army (*Journaux Officiels de la République Française* – ‘JORF’ – of 15 March 1928), in the version in force on 26 January 1961, provides:

‘Judgment given against a person in absentia, in the normal form, shall ... be notified to the person convicted in absentia
personally or at his place of residence.

In the five days following such notification, the person convicted in absentia may appeal. Should that period expire without
an appeal having been lodged, the judgment shall be deemed to have been given in adversarial proceedings.

However, if that notification has not been served personally or if it does not derive from measures taken to enforce the judgment
which were known to the person convicted, the appeal shall be admissible until the date on which enforcement of the sentence
becomes time-barred.’

12      Article 121 of that code, as amended at the time of the facts in the main proceedings, lays down, with reference to Article
639 of the French Code of Criminal Procedure, that, if the person convicted in his absence reappears before enforcement of
the sentence has become time-barred, the sentence is not to be enforced but new proceedings instituted, this time in the presence
of the accused.

13      Under Article 763 of the French Code of Criminal Procedure, the limitation period for the execution of a sentence, to which
Articles 120(9) and 121 of the aforesaid Code of Military Justice refer, is 20 years.

14      Article 1 of Law No 68-697 of 31 July 1968 on the grant of amnesty (JORF of 2 August 1968, p. 7521), which is part of Title
I of that law, entitled ‘General amnesty for all offences committed in connection with the events in Algeria’, provides:

‘An amnesty shall be granted by force of law in respect of all offences committed in connection with events in Algeria.

All offences committed by military personnel serving in Algeria during the period covered by the first paragraph of this article
shall be deemed to have been committed in connection with the events in Algeria.’

15      Article 4(1) of that law lays down that the effects of the amnesty for which it provides are those defined in Articles 9 to
16 of Law No 66-396 of 17 June 1966 on the grant of amnesty in respect of offences against the security of the State or committed
in connection with the events in Algeria (JORF of 18 June 1966, p. 4915).

16      Article 9 of Law No 66-396 provides:

‘The grant of amnesty shall result, without ever giving rise to restitution, in the remission of all the principal, accessory
and supplementary penalties, including preventive detention and all consequential legal incapacities or disqualifications.
It restores to the offender the benefit of a stay of enforcement which could have been granted to him at the time of an earlier
conviction.’

17      Article 15 of that law provides as follows:

‘Any person having learnt, in the exercise of his duties, of criminal convictions ... erased by the amnesty, shall be prohibited
from referring to them in any form whatsoever or from allowing any indication of them to remain in any document. This prohibition
does not however apply to the original versions of judgments and judicial decisions.’

**The facts giving rise to the criminal proceedings and the question referred for a preliminary ruling**

18      On 26 January 1961 in Bône (Algeria), Mr Bourquain, who was serving in the French Foreign Legion, was sentenced to death in
absentia by the permanent military tribunal for the eastern zone of Constantine, having been found guilty of desertion and
intentional homicide.

19      That tribunal, applying the Code of Military Justice for the French Army, held it proved that, on 4 May 1960, Mr Bourquain,
while making efforts to desert on the Algerian-Tunisian border, shot dead another legionnaire, also of German nationality,
who attempted to prevent him from deserting.

20      Having taken refuge in the German Democratic Republic, Mr Bourquain had not learnt of the notification of the judgment delivered
in absentia and it was not possible to enforce the sentence imposed by the judgment deemed to have been given in adversarial
proceedings.

21      There were no subsequent criminal proceedings against Mr Bourquain in either Algeria or France. Moreover, in France, all offences
committed in connection with the war in Algeria were subject to the amnesty granted under the laws referred to above. By contrast,
in the Federal Republic of Germany, an investigation was opened in relation to Mr Bourquain in respect of the same acts and,
in 1962, an arrest warrant was sent to the authorities of the former German Democratic Republic, which rejected it.

22      At the end of 2001, it was discovered that Mr Bourquain was living in the area of Regensburg (Germany). On 11 December 2002,
the Staatsanwaltschaft Regensburg (Regensburg Pubic Prosecutor’s Office) charged him before the referring court with murder,
in respect of the same acts, under Article 211 of the German Criminal Code.

23      In those circumstances the referring court, by letter of 17 July 2003, requested information from the French Ministry of Justice
under Article 57(1) of the CISA in order to establish whether the judgment of the permanent military tribunal for the eastern
zone of Constantine of 26 March 1961 precluded the opening of criminal proceedings in Germany in respect of the same acts,
as a result of the prohibition of double jeopardy contained in Article 54 of the CISA.

24      The Public Prosecutor at the Tribunal aux Armées de Paris (Military Tribunal of Paris) replied to that request for information
by pointing out in particular as follows:

‘The judgment in absentia delivered on 26 January 1961 against [Mr Bourquain] has become final. In 1981, the period allowed
for challenging the decision imposing the death sentence having expired, it was no longer possible to lodge an appeal against
that judgment. Penalties in criminal cases being time-barred after 20 years under French law, the judgment can no longer be
enforced in France.’

25      In addition, the referring court sought an opinion from the Max-Planck-Institut für ausländisches und internationales Strafrecht
(Max Planck Institute for Foreign and International Criminal Law) on the interpretation of Article 54 of the CISA concerning
the facts of the case in the main proceedings. In its opinion of 9 May 2006, that institute came to the conclusion that, even
if the direct enforcement of the conviction in absentia was excluded on account of the specific features of the French system
of criminal procedure, the conditions for application of Article 54 of the CISA were satisfied in the main proceedings, with
the result that no new criminal proceedings could be brought against Mr Bourquain. The institute, in response to a request
for further observations, reiterated its view by letter of 14 February 2007.

26      The Landgericht (Regional Court) Regensburg, being of the view that Article 54 of the CISA could be interpreted as meaning
that the first conviction by a Contracting State must have been capable of being enforced at some time in the past in order
to operate as a bar on new proceedings in a second Contracting State, decided to stay the proceedings and to refer the following
question to the Court 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 act when, under the laws of the sentencing Contracting Party, the sentence imposed on him could never have been
enforced?’

**Jurisdiction of the Court**

27      As a preliminary point, it should be recalled that, as is apparent from paragraph 10 of this judgment, the Court has jurisdiction,
in the present case, to rule on the interpretation of the CISA under Article 35 EU.

28      Second, it should be noted that Article 54 of the CISA applies ratione temporis to criminal proceedings such as those in the
main proceedings. Although it is true that the CISA was not yet in force in France at the time when Mr Bourquain’s first conviction
was pronounced by a competent judicial authority of that State, it was however in force in the two States concerned when the
court before which the second proceedings were brought considered the conditions governing the applicability of the *ne bis in idem* principle, which prompted this reference for a preliminary ruling (see, to that effect, Case C-367/05 *Kraaijenbrink* [2007] ECR I-6619, paragraph 22).

29      Third, with regard to the territorial scope of Articles 54 to 58 of the CISA, it should be pointed out that while, according
to Article 6 of Decision 1999/436, read in conjunction with Article 138 of the CISA, Article 54 of the CISA was never in force
in Algerian territory, where Mr Bourquain was originally convicted, the application of Article 54 cannot, in special circumstances
such as those of that conviction, depend on the place where the sentence was pronounced, since the decisive factor is whether
the sentence was pronounced by a competent judicial authority of a State which became a Contracting Party to the CISA.

30      Since Article 54 of the CISA does not, as correctly pointed out by the Commission of the European Communities, provide that
the person concerned must necessarily have been tried in the territory of the Contracting Parties, that provision, the purpose
of which is to protect a person whose trial has been finally disposed of against further prosecution in respect of the same
acts, cannot be interpreted as meaning that Articles 54 to 58 of the CISA are never applicable to persons who have been tried
by a Contracting Party exercising its jurisdiction beyond the territory to which that Convention applies.

31      In that regard, it should be pointed out that the permanent military tribunal for the eastern zone of Constantine was a French
court which, in convicting Mr Bourquain on 26 January 1961, applied the rules of French law in question.

32      Moreover, it should be added that, in any case, Article 58 of the CISA permits the Federal Republic of Germany to apply broader
national provisions on the *ne bis in idem* principle. Contracting States may therefore apply that principle to judicial decisions other than those falling within Article
54 (see, concerning procedures whereby further prosecution is barred, Joined Cases C-187/01 and C-385/01 *Gözütok and Brügg*e [2003] ECR I-1345, paragraph 45).

**The question referred for a preliminary ruling**

33      By this question, the referring court wishes to know, essentially, whether the *ne bis in idem* principle enshrined in Article 54 of the CISA can apply to criminal proceedings instituted in a Contracting State against
an accused whose trial for the same acts as those for which he faces prosecution was finally disposed of in another Contracting
State, even though, under the law of the State in which he was convicted, the sentence which was imposed on him could never
have been enforced.

34      As a preliminary point, it should be made clear, first, as the Commission contended in its written observations, that in principle
a conviction in absentia is also covered by the scope of Article 54 of the CISA and can therefore constitute a procedural
bar to the opening of new proceedings.

35      In the first place, according to the actual wording of Article 54 of the CISA, judgments rendered in absentia are not excluded
from its scope of application, the sole condition being that there has been a final disposal of the trial by a Contracting
Party.

36      In the second place, it must be pointed out that the application of Article 54 of the CISA is not conditional on the harmonisation
or approximation of the criminal laws of the Member States concerning in absentia judgments (see, to that effect, concerning
procedures whereby further prosecution is barred, *Gözütok and Brügge*, paragraph 32).

37      In those circumstances, Article 54 of the CISA, applied to a judgment in absentia delivered in accordance with the national
legislation of a Contracting State or to an ordinary judgment, necessarily implies that the Contracting States have mutual
trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Contracting
States even when the outcome would be different if its own national law were applied (see, to that effect, *Gözütok and Brügge*, paragraph 33).

38      Second, it must be ascertained, as contended by a number of Member States and the Commission in their written observations,
whether the conviction in absentia by the permanent military tribunal for the eastern zone of Constantine is ‘final’ within
the meaning of Article 54 of the CISA, taking into account the impossibility of direct enforcement of the penalty as a result
of the obligation imposed by French law to hold a new trial if the person convicted in absentia should reappear, this time
in his presence.

39      In that regard, the Czech and Hungarian Governments doubt whether the judgment of that permanent tribunal constitutes a final
bar to continuation of the criminal proceedings, precisely on account of that obligation to institute new proceedings if the
person convicted in absentia is arrested.

40      However, the sole fact that the proceedings in absentia would, under French law, have necessitated the reopening of the proceedings
if Mr Bourquain had been arrested while time was running in the limitation period applicable to the penalty, and before he
benefited from the amnesty, that is, between 26 January 1961 and 31 July 1968, does not, in itself, mean that the conviction
in absentia cannot be regarded as a final decision within the meaning of Article 54 of the CISA.

41      Thus, in order to observe the objective of Article 54 of the CISA, which is to ensure that no one is prosecuted for the same
acts in several Contracting States on account of his having exercised his right to freedom of movement (*Gözütok and Brügge*, paragraph 38), it is necessary to comply within the European Union with a judgment such as that delivered on 26 January
1961 by the permanent military tribunal for the eastern zone of Constantine, ruling finally on the acts of which the person
concerned was accused under the legislation of the Contracting State which instituted the first criminal proceedings.

42      The achievement of that objective would be jeopardised if the specific features of national proceedings, such as those which
appear in the provisions of Articles 120 and 121 of the Code of Military Justice for the French Army, did not permit an interpretation
of the concept of a trial being finally disposed of within the meaning of Article 54 of the CISA which includes judgments
delivered in absentia in accordance with national legislation.

43      In any case, it must be held that the Prosecutor at the Tribunal aux Armées of Paris, without referring at all to the fact
that the offences committed by Mr Bourquain were subject to an amnesty granted in 1968, points out that all challenges to
the sentence were time-barred in 1981, that is to say, before the second criminal proceedings were instituted in Germany in
2002.

44      In that regard, it should be added that, while Law No 68-697 on the grant of amnesty has the consequence that, since its entry
into force, the offences committed by Mr Bourquain are no longer subject to any penalty, the effects of that law, as laid
down in particular in Articles 9 and 15 of Law No 66-396, cannot be understood as meaning that there is no first judgment
for the purposes of Article 54 of the CISA.

45      Since the judgment delivered in the absence of Mr Bourquain must, in the circumstances of the case, be regarded as final for
the purposes of the application of Article 54 of the CISA, it should be determined whether the condition relating to enforcement
referred to in that article, that is the fact that the penalty can no longer be enforced, is also satisfied when, at no time
in the past, even before the amnesty or the expiry of the limitation period, could the penalty imposed pursuant to the first
conviction have been directly enforced.

46      In that regard, the Hungarian Government submitted that the expression in Article 54 of the CISA, relating to the fact that
the penalty ‘can no longer be enforced’ according to the laws of the sentencing Contracting Party, must be interpreted to
mean that it must have been capable of being enforced under the rules of the sentencing Contracting State at least on the
date when it was imposed.

47      However, that condition regarding enforcement does not require the penalty, under the law of that sentencing State, to have
been capable of being enforced directly, but requires only that the penalty imposed by a final decision ‘can no longer be
enforced’. The words ‘no ... longer’ refer to the time when the new proceedings begin, in relation to which the court with jurisdiction
in the second Contracting State must therefore ascertain whether the conditions referred to in Article 54 of the CISA are
satisfied.

48      It follows that the condition regarding enforcement referred to in that article is satisfied when it is established that,
at the time when the second criminal proceedings were instituted against the same person in respect of the same acts as those
which led to a conviction in the first Contracting State, the penalty imposed in that first State can no longer be enforced
according to the laws of that State.

49      That interpretation is reinforced by the objective of Article 54 of the CISA, which is to ensure that no one is prosecuted
for the same acts in several Contracting States on account of his having exercised his right to freedom of movement.

50      That right to freedom of movement is effectively guaranteed only if, in a situation such as that at issue in the main proceedings,
the person can be sure that, once he has been convicted and when the penalty imposed on him can no longer be enforced under
the laws of the sentencing Contracting State, he may travel within the Schengen area without fear of prosecution in another
Contracting State on the ground that the penalty could not, on account of the specific features of the national legal procedures
of the first Contracting State, have been directly enforced.

51      In the case in the main proceedings, in which it is agreed that the penalty imposed was no longer capable of being enforced
in 2002 when the second criminal proceedings were instituted in Germany, it would be contrary to the effective application
of Article 54 of the CISA to rule out its application solely on the ground of the specific features of the French criminal
proceedings which made enforcement of the penalty conditional on a further conviction pronounced in the presence of the accused.

52      In those circumstances, the answer to the question referred must be that the *ne bis in idem* principle, enshrined in Article 54 of the CISA, is applicable to criminal proceedings instituted in a Contracting State against
an accused whose trial for the same acts as those for which he faces prosecution was finally disposed of in another Contracting
State, even though, under the law of the State in which he was convicted, the sentence which was imposed on him could never,
on account of specific features of procedure such as those referred to in the main proceedings, have been directly enforced.

**Costs**

53      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

**The *ne bis in idem* principle, enshrined in Article 54 of the 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, signed in Schengen (Luxembourg) on 19 June 1990, is applicable to criminal proceedings
instituted in a Contracting State against an accused whose trial for the same acts as those for which he faces prosecution
was finally disposed of in another Contracting State, even though, under the law of the State in which he was convicted, the
sentence which was imposed on him could never, on account of specific features of procedure such as those referred to in the
main proceedings, have been directly enforced.**

[Signatures]

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[\*](#Footref*) Language of the case: German.