In a non-binding opinion released last week, Advocate General Ruiz-Jarabo proposed extending the principle of double jeopardy to include cases in which the initial penalty could never be enforced.
The case discussed is a reference from a lower-level German court hearing the case of Klaus Bourquain. Mr. Bourquain, who is a German citizen, deserted from the Foreign Legion in 1961 and was convicted of murder and sentenced to death in absentia by a French military tribunal in Algeria. Bourquain subsequently fled to Germany and no further charges were sought against him. Had he been recaptured, under the laws of the time a new trial would have ensued, moreover, France has since abolished the death penalty, instituted amnesty for Algerian actions, and the statute of limitations has run now out. Nonetheless, in 2002, German prosecutors brought proceedings against Mr. Bourquain in order to try him in Germany for the crime committed in Algeria.
AG Ruiz-Jarabo stated that the sentence in absentia should have constituted a judgment with the force of res judicata by 2002. Although a procedural idiosyncrasy in French law does not allow the sentence to be carried out, that does not in any way impair the legal force of the judgment as an enforceable, final legal act. For more information, click here.