Chutzpah

In Wikipedia, we find:

Chutzpah ( /ˈhʊtspə/) is the quality of audacity, for good or for bad. The Yiddish word derives from the Hebrew word ḥuṣpâ (חֻצְפָּה), meaning "insolence", "audacity". The modern Englishusage of the word has taken on a broader meaning, having been popularized through vernacular use in film, literature, and television. The word has also been able to be interpreted as meaning the amount of spunk or ability that an individual has. In more traditional usage, chutzpah is invariably negative.

As it happens, though, the concept can be explained better with an example:

Courtesy of the German-language law blog Verfassungsblog, we have the story of the argument made by Heinrich Boere - Dutch Nazi war criminal - before the German Federal Constitutional Court. He argued - wait for it - that he could not be prosecuted in Germany because he had already been prosecuted, and found guilty, in the Netherlands in 1949. Of course, this Dutch sentence (originally death, later commuted to life in prison) had never been carried out, because the German authorities always took the view that he had (or in recent decades: "might have") German citizenship. In 2007-2008, it briefly looked like he might have to serve his Dutch sentence in Germany, but that ruling was overturned on the grounds that the Dutch trial had been in absentia. Which is how he finally ended up being retried in Germany.

Enter the creative legal argument. In general, the rule of ne bis in idem never applies when the

two trials are by different sovereigns, because all sovereigns are supposed to be equal and so no sovereign has the power to bind another. However, since a few years EU law makes an exception, one that doesn't even apply in the US:

Art. 50 Charter

No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.

A similar principle was already found in the European Arrest Warrant Framework Decision, where art. 3(2) forbids extradition when the case has already been tried somewhere. This provision, however, has an important exception that art. 50 Charter does not have:

The judicial authority of the Member State of execution (hereinafter "executing judicial authority") shall refuse to execute the European arrest warrant in the following cases:
(...)
2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State;

See also art. 54 of the Convention Implementing the Schengen Agreement of 1990:

Article 54
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.

Boere, however, was not resisting extradition. He was resisting his second trial in Germany. As such, only art. 50 Charter applied to him, putting the Constitutional Court in a difficult position. The solution proposed by the Regional Court in Aachen and the Federal Supreme Court in Berlin was upheld by the FCC: art. 54 CISA was lifted from its context and interpreted as a general limitation of the art. 50 right under art. 52(1) Charter, which allows for limitations of the rights stated under certain conditions.

While this is undoubtedly the correct result, I'm not sure if I agree with the method taken to get there. I think I would have preferred it if the FCC had opted for a more general interpretative method, without bringing in art. 54 CISA. They should have said straight-up that art. 50 Charter cannot reasonably be read as covering sentences that have not been carried out, or even more generally sentences imposed in absentia. Leaving art. 54 CISA out of it would have made the

argument more honest, and would have avoided the awkward tangle of saying that an agreement from 1990 on cross-border travel somehow limits the definition of a freedom enacted in 2010, as applied to someone who hasn't crossed an international border since 1945.

Still: Chutzpah...

P.S. Speaking of German Nazis, check out this protest action against a Neo-Nazi City Councillor in Oldenburg. Get it? They gave him house arrest by bricking up his door!

(Not that I necessarily agree with the concept of preventing a councillor - be it "symbolically" or otherwise - from attending a City Council meeting, but I just love the creativity and the humor of it.)