Kremzow v. Republik Osterreich: A case for excluding human rights issues from the jurisdiction of the European Court of Justice.

• Author: Eiselein, Erin McAlpin
• Position: Recent Rulings of the European Court of Justice

1. INTRODUCTION

   In 1997, the Austrian Supreme Court asked the European Court of Justice (ECJ)(1) for a preliminary ruling in the case of Kremzow v. Republik Osterreich (Austrian State)(2) to determine what effect a decision by the European Court of Human Rights (ECHR) has upon a Member State.(3) After a brief analysis relying entirely on five prior ECJ opinions,(4) the ECJ held that it lacked the jurisdiction to offer interpretive guidance since the matter was not grounded in community law.(5)

   The ECJ opinion in Kremzow exemplifies a fundamental problem of Europe as a united body. There is a lack of clear definition regarding the scope of authority between the various European supranational bodies. Specifically, between the European Union (EU or Union)(6) and the Council of the Europe;(7) and, between the various bodies and their respective Member States. Over the last fifty years, Europe has created the most sophisticated system of international community institutions, yet many structural questions remain unanswered and produce continual confusion among the Member States.(8) The ECJ is a critical channel established by the European Union to clarify and develop issues surrounding the relationship between the various European bodies and their respective Member States.(9) Ideally, the jurisprudence of the ECJ should guide both the Union and the Member States toward an in creased understanding of Union law and its relationship with Member State law. However, the continual pressure on the ECJ to broaden the scope of its authority to include other issues such as human rights, detracts from its ability to perform its essential function of developing Union law.

   The ECJ struggled with how to further define the scope of Union law when it decided Kremzow v. Republic Osterreich.(10) Kremzow pressured the ECJ to extend its jurisdiction to include human rights protection.(11) After an initial reading of the opinion, it may appear that the Court placed human rights in a secondary position when it declined to address Austria's preliminary rulings based upon procedural grounds.(12) In actuality, the court declined to extend its jurisdiction to include human rights because, if extended, its jurisdiction would then significantly overlap with the jurisdiction of the European Court of Human Rights (ECHR).(13) This case note argues that if the ECJ is to remain a successful and legitimate judicial body, it must continue to limit the scope of its authority to issues relating exclusively to the European Union.

   The first section of this casenote will offer a detailed examination of the Court's opinion in Kremzow v. Republick Osterreich. The factual background and procedural posture of the case will be discussed to provide a framework for the ECJ's opinion. The second section will conduct an inquiry of the Court's analysis and a detailed discussion of each of the five cases the Court relied upon in reaching its decision. The third section will argue that European human rights are sufficiently protected through a number of other European and international institutions. Further, the ECJ must confine the scope of its authority to issues exclusively relating to Union law if it is to remain a successful and legitimate judicial body. While the complex issue of the interrelationships between the European courts is continually debated, the coming of the millennium begs clarity of this situation in order for Europe to move forward as a united body.

2. FACTS

   The following section will provide the factual background of Krernzow v. Republik Osterreich and a discussion of how Kremzow reached the European Court of Justice (ECJ). Friedrich Kremzow, an Austrian man, worked in Vienna as a legal consultant after retiring from the Austrian judiciary.(14) On December 16, 1982, Kremzow confessed to murdering one of his clients, Mr. p.,(15) a confession he promptly retracted.(16) Two years later, the Court of Assizes (Geschworenengericht) at the District Court (Kreisgericht) found Kremzow guilty of murder and unlawful possession of a firearm.(17) Kremzow received the maximum sentence under Austrian law,(18) twenty years in an institution for the mentally ill.(19)

   Kremzow appealed to the Austrian Supreme Court (Oberster Gerichtshof) by filing a plea of nullity (Nichtigkeitsbeschwerde).(20) The plea was partially supported by the fact that he was denied the right to represent himself.(21) He also filed an appeal against the sentence (Berufung), asking for a reduction in his sentence.(22) The Supreme Court rejected Kremzow's plea of nullity and affirmed his guilty verdict.(23) Additionally, the Supreme Court modified his sentence and ordered him to serve life in an ordinary prison rather than twenty years in a mental institution.(24) The Supreme Court also rejected supplementary pleas of nullity brought by Kremzow's wife and mother.(25)

   Kremzow did not request to attend the appellate proceedings, nor was his presence requested by the Supreme Court.(26) This fact resulted in the referral of his case to the ECHR.(27) The premise of the referral was that Kremzow's human rights, under the European Convention for Human Rights and Fundamental Freedoms (European Convention),(28) were violated when he was not allowed to defend himself in person at the Austrian Supreme Court.(29) On September 21, 1993, the ECHR unanimously found that Kremzow's absence at the hearing violated his right to a fair trial under the European Convention, Article 6(1),(30) when taken in conjunction with Article 6(3).(31) Article 6(3) provides the right to defend oneself in person.(32) The ECHR awarded Kremzow costs and expenses in the amount of 230,000 Austrian schillings,(33) as "just satisfaction" under Article 50 of the European Convention.(34) Articles 53 and 54 of the European Convention provide the supervision for the enforcement of this judgement.(35)

   Based on his victory at the ECHR, Kremzow brought two claims against the Austrian courts in the Regional Civil Court in Vienna (Zivilrechtssachen Wein).(36) Kremzow asked for a reduction in his sentence, in accordance with paragraph 410 of the Austrian Code of Criminal Procedure,(37) that allows for a reduction of sentence when mitigating circumstances emerge.(38) Additionally, he requested damages in the amount of 3,969,058 Austrian schillings for unlawful detention(39) during the time period of July 3, 1986 through September 30, 1993, as allowed by Article 5(5) of the European Convention.(40) The Regional Civil Court in Vienna (Zivilrechtssachen Wein) found for the Austrian government on both claims.(41) On appeal, the Higher Regional Court in Vienna (Oberlandesgericht Wien) affirmed the decision,(42) based on Paragraph 2(3) of the Law on State Liability (Amtshaftungsgesetz).(43) That paragraph states in part "no claim for compensation could arise out of a judgment of the Supreme Court."(44) The judgment of the European Court of Human Rights has Constitutional status in Austria,(45) and is therefore binding.(46) However, when the original case has achieved the status of res judicata the effect of such judgment remains undecided in Austrian Courts.(47) Kremzow was therefore unable to enforce the judgment of the ECHR against the Austrian Supreme Court.

   Under these circumstances, Kremzow filed an "extraordinary appear"(48) to the Austrian Supreme Court,(49) asking them to request the European Court of Justice for a preliminary ruling on the issue of whether the decision of the European Court of Human Rights is binding on Austrian Courts.(50) The Austrian Supreme Court stayed their proceedings and addressed two questions to the ECJ for preliminary rulings. The Austrian Court first asked the following question:

   Are all or at least the substantive-law provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention")--including the provisions of Articles 5,(51) 6,(52) and 53(53) of the Convention which are relevant to the proceedings before the Oberster Gerichtshof--part of Community law (Article 164 EC),(54) with the result that the Court of Justice of the European Communities may give a preliminary ruling on their interpretation pursuant to the first paragraph of Article 177(55) EC?(56) Essentially, Austria asked the ECJ to determine the relationship between the European Convention and European Union law. Austria's second question was actually a series of five questions to be answered only in the event that the first question was answered in the affirmative.(57) The ECJ never addressed the second question, since the first question was answered in the negative; therefore, this case note will not directly address it.(58)

3. COURT'S ANALYSIS AND DECISION

   The ECJ, through Judge Rapporteur(59) and President of the Fifth Chamber, J.C. Moitinho de Almeida, offered a brief opinion in response to the preliminary rulings requested by the Austrian Supreme Court.(6) After a summary of the factual background, the ECJ affirmed Kremzow's position that he felt entitled to damages because his right to freedom of movement under Article 8(a) of the Treaty of Rome.(61) The violation occurred when Austria unlawfully detained him in violation of Community law.(62) To reach its conclusion, the ECJ's analysis relied entirely on a series of five prior ECJ decisions: RE the Accession by the Community to the European Human Rights Convention;(63) Elliniki Radiofonia Tileorassi Anonimi Etairia (ERT AE) anal Another v. Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Another;(64) Society for the Protection of Unborn Children Ireland Ltd. (SPUC) v. Steven Grogan and Others;(65) Hans Moser v. Land Baden-Wurtternberg;(66) and Criminal Proceedings Against Jean-Louis Maurin.(67)

   The ECJ's first point was that "fundamental rights form an integral part of the general principles of Community law."(68) ECJ jurisprudence has reiterated this ideology, most notably in Opimon 2/94, Re the Accession of the...