....K.-H. W. v. Germany (Berlin Border Guard Case)
......EUROPEAN COURT OF HUMAN RIGHTS (GRAND CHAMBER)
.......................................STRASBOURG, FRANCE
........................................Application no. 37201/97
.........................Judgment on the Merits (22 March 2001)
......<http://www.echr.coe.int/Eng/Judgments.htm> click HUDOC & scroll
.....The ECHR's numerous German language parenthetical translations have been removed. All paragraph numbering is that of the ECHR (red coloring added).
Court's Opinion:
...................................PROCEDURE
1. The case originated in an
application (no. 37201/97) against the Federal Republic of Germany
lodged with the European Commission of Human Rights ("the
Commission") by a German national, Mr K.-H. W. ("the
applicant") , under former Article 25 of the Convention
for the Protection of Human Rights and Fundamental Freedoms ("the
Convention") on 5 May 1997. The applicant asked the Court
not to disclose his identity and the President granted his request....
2. The applicant, who was granted legal aid, was represented by Mr Piers Gardner, of the London (United Kingdom) Bar, and by Mr Dirk Lammer, of the Berlin (Germany) Bar. The German Government ("the Government") were represented by their Agent, Mr Klaus Stoltenberg, Ministerialdirigent.
3. The applicant alleged that the act on account of which he had been prosecuted did not constitute an offence, at the time when it was committed, under national or international law, and that his conviction by the German courts had therefore breached . . . the Convention.
4. The application was
transferred to the Court on 1 November 1998, when Protocol No.
11 to the Convention came into force (Article 5 § 2 of Protocol
No.11) [see textbook description of this protocol regarding the
newly constituted court as of 1998].
........................................................................
. . .
.................................................................THE
FACTS
.......................................
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant is a German national who was born in 1952 and lives in Berlin (Germany).
...................................................A.
The general background
11. Between 1949 and 1961 approximately
two and a half million Germans fled from the German Democratic
Republic ("the GDR") to the Federal Republic of Germany
("the FRG"). In order to staunch the endless flow of
fugitives, the GDR built the Berlin Wall on 13 August 1961 and
reinforced all the security measures along the border between
the two German States, in particular by installing anti-personnel
mines and automatic-fire systems. Many people who tried to cross
the border to reach the West subsequently lost their lives, either
after triggering anti-personnel mines or automatic-fire systems
or after being shot by East-German border guards. The official
death toll, according to the FRG's prosecuting authorities, was
264. Higher figures have been advanced by other sources, such
as the "13 August Working Party" which speaks of 938
dead. In any event, the exact number of persons killed is very
difficult to determine, since incidents at the border were kept
secret by the GDR authorities.
........................................................................
. . .
13. GDR border guards were
members of the National People's Army and were directly answerable
to the Ministry of Defence. The annual orders of the Minister
of Defence were themselves based on decisions of the National
Defence Council. For example, in a decision of 14 September 1962
the National Defence Council made it clear that the orders and
service instructions laid down by the Minister of Defence should
point out to border guards that they were "fully responsible
for preservation of the inviolability of the State border in
their sector and that 'border violators' should in all cases
be arrested as adversaries or, if necessary, annihilated".
Similarly, a service instruction of 1 February 1967 stated: "Mines
are to be laid in targeted positions and in close formation ...
with a view to halting the movements of border violators and
... bringing about their arrest or annihilation".
.....From 1961 onwards, and especially
during the period from 1971 to 1989, consolidation and improvement
of the border security installations and the use of firearms
were regularly discussed at meetings of the National Defence
Council. The orders issued by the Minister of Defence as a result
likewise insisted on the need to protect the GDR's State border
at all costs and stated that border violators had to be arrested
or "annihilated"; these orders were then implemented
by the commanding officers of the border guard regiments. All
acts by border guards, including mine-laying and the use of firearms
against fugitives, were based on this chain of command.
14. The applicant, who had enlisted for a three-year period of military service, from 1970 to 1973, at the instigation of his father, a career officer, was a member of the 35th regiment of the GDR's border guards from 1971 onwards.
15. In autumn 1989 the
flight of thousands of citizens of the GDR to the FRG's embassies
in Prague and Warsaw, and to Hungary, which had opened its border
with Austria on 11 September 1989, demonstrations by tens of
thousands of people in the streets of Dresden, Leipzig, East
Berlin and other cities and the restructuring and openness campaign
conducted in the Soviet Union by Mikhail Gorbachev ("perestroika"
and "glasnost") precipitated the fall of the Berlin
Wall on 9 November 1989, the collapse of the system in the GDR
and the process that was to lead to the reunification of Germany
on 3 October 1990.
.....By a note verbale of 8 September
1989 Hungary suspended Articles 6 and 8 of the bilateral agreement
with the GDR of 20 June 1969 (in which the two States had agreed
to waive entry visas for each other's nationals and refuse travelers
permission to leave for third countries), referring expressly,
in doing so, to Articles 6 and 12 of the International Covenant
on Civil and Political Rights ... and to Article 62 (fundamental
change of circumstances) of the Vienna Convention on the Law
of Treaties.
16. During the summer of 1990 the GDR's newly-elected parliament urged the German legislature to ensure that criminal prosecutions would be brought in respect of the injustices committed by the SED [responsible for Berlin Wall security].
...............................................B.
The proceedings in the German courts
17. In a judgment of 17 June
1993 [italics added] the Berlin Regional Court sentenced
the applicant to one year and ten months' juvenile detention,
suspended on probation, for intentional homicide.
.....The Regional Court found that
it had been established that during the night of 14 to 15 February
1972 he and another border guard had fired five bursts of two
shots each which had caused the death of a fugitive trying to
swim away from East-Berlin, after shouting out to him and firing
warning shots (Warnschüsse). The victim was Mr Manfred Weylandt,
aged 29, who was hit in the head by one of the shots and instantly
sank and drowned. His body was recovered in the afternoon and
handed over to officials of the Ministry of National Security.
The guards who had fired at Mr Weylandt were congratulated, decorated
with the "Order of Merit of the GDR's border troops"
and awarded a bonus of 150 marks. Mr Weylandt's widow was told
that her husband had committed suicide, that the urn containing
his ashes had already been buried and that she could apply to
the cemetery management for the card identifying the burial site.
.....On the basis of the criminal
law applicable in the GDR [East Germany] at the material time,
the Regional Court first declared the applicant guilty of intentional
homicide Article 113 of the GDR's Criminal Code. ... The Regional
Court then applied the criminal law of the FRG [West Germany],
which was more lenient than that of the GDR, and [still] convicted
the applicant of intentional homicide.
.....The Regional Court also held
that the applicant could not justify his conduct ... because
Mr Weylandt's attempt to cross the border could not be classified
as a serious crime within the meaning of Article 213 § 3
of the GDR's
Criminal Code.
.....It further held that the applicant
could not rely on Article 258 of the GDR's Criminal Code. He
had, admittedly, acted in accordance with the following order
given to border guards at the time: "The unit ... will ensure
the security of the GDR's State border ... its duty is not to
permit border crossings, to arrest border violators or to annihilate
them and to protect the State border at all costs ...''. Moreover,
he had been part of a military system subject to absolute discipline
and obedience in which he had undergone intense political indoctrination;
in the event of a successful crossing of the border, the guards
on duty knew that an investigation would be conducted by the
military prosecutor. However, the Regional Court held that, even
for a private soldier, it should have been obvious that firing
at an unarmed person infringed the duty of humanity and that
the applicant could have fired into the water without having
to fear the consequences of disobeying orders, since it would
have been impossible to observe the exact trajectory of the bullets
under water.
18. In a judgment of 26
July 1994, separate from its judgment of the same day concerning
Mr Streletz and Mr Kessler, likewise applicants before the European
Court (applications nos. 34044/96 and 35532/97) and former members
of the National Defence Council, the Federal Court of Justice
upheld the judgment of the Regional Court.
.....It first gave an account of
the facts of the case, accepting that it could not be gainsaid
that the first shots fired by the applicant had been warning
shots, but pointing out that the subsequent shots had been fired
immediately afterwards and that the two soldiers knew that the
fugitive might be fatally wounded by these later shots.
.....The Federal Court of Justice
went on to observe that a ground of justification which placed
the prohibition of crossing the border above the right to life
"flagrantly and intolerably infringe[d] elementary precepts
of justice and human rights protected under international law"
and was invalid. It also referred to the Universal Declaration
of Human Rights. The Federal Court of Justice held that the statutory
grounds of justification provided in the law of the GDR should
have been interpreted strictly and in a manner favourable to
human rights, so that the killing of an unarmed fugitive who
merely wanted to swim from one part of Berlin to the other was
unlawful
.....Like the Regional Court, the
Federal Court of Justice considered that it should have been
obvious to the applicant that the order to annihilate "border
violators" contravened the criminal law as laid down in
Article 258 § 1 of the GDR's Criminal Code, the equivalent
provision to which was Article 5 §1 of the FRG's Military
Criminal Code.
.....In conclusion, the Federal
Court of Justice held that the decisive factor was that the killing
of an unarmed fugitive by sustained fire was, in the circumstances
of the case, such a dreadful act, not justifiable by any defence
whatsoever, that it must have been immediately apparent and obvious
even to an indoctrinated person that it breached the proportionality
principle and the elementary prohibition on the taking of human
life.
19. The applicant then lodged a constitutional appeal with the Federal Constitutional Court.
20. In a judgment of 24
October 1996 the Federal Constitutional Court joined the applicant's
appeal to those of Mr Streletz and Mr Kessler [¶18 above].
After hearing submissions from the Federal Ministry of Justice
and the Administration of Justice Department of the Land of Berlin,
the Federal Constitutional Court dismissed the appeals as being
ill-founded, basing its decision on the following grounds in
particular: "Article 103 § 2 of the Basic Law has not
been infringed.["] The appellants submitted that Article
103 §2 of the Basic Law had been breached mainly on account
of the fact that the criminal courts had refused to allow them
to plead a ground of justification provided for at the material
time in the GDR's provisions on the border-policing regime, as
interpreted and applied by the GDR authorities. The first, second
and third appellants [Mr Hans Albrecht, who did not lodge any
application with the Court, Mr Kessler and Mr Streletz] further
submitted that they had been victims of the violation of a right
guaranteed by Article 103 §2 of the Basic Law in that they
had been convicted, pursuant to the law of the Federal Republic,
as indirect principals [the border guard defendant's ultimate
superiors].
.....Neither complaint is well-founded.
.....1. (a) Article 103 § 2
of the Basic Law is an expression of the principle of the rule
of law ... This principle forms the basis for the use of civil
rights and liberties, by guaranteeing legal certainty, by subjecting
State power to statute law and by protecting trust. In addition,
the principle of the rule of law includes, as one of the guiding
ideas behind the [German] Basic Law, the requirement of objective
justice.... In the sphere of the criminal law, these concerns
relating to the rule of law are reflected in the principle that
no penalty may be imposed where there is no guilt. That principle
is at the same time rooted in the human dignity and personal
responsibility which are presupposed by the Basic Law and constitutionally
protected ... and to which the legislature must have regard when
framing the criminal law....
.....The citizen's trust is earned
by the fact that Article 103 §2 gives him the assurance
that the State will punish only acts which, at the time when
they were committed, had been defined by Parliament as criminal
offences, and for which it had prescribed specific penalties.
That allows the citizen to regulate his conduct, on his own responsibility,
in such a way as to avoid committing a punishable offence. This
prohibition of the retroactive application of the criminal law
is absolute ... It fulfill its role of guaranteeing the rule
of law and fundamental rights by laying down a strict formal
rule, and in that respect it is to be distinguished from other
guarantees of the rule of law ...
..........(b) ... In the sphere
of the criminal law grounds of justification may also be derived
[in addition to the German Basic Law] from customary law or case-law.
Where grounds of justification not derived from written law but
nevertheless recognised at the material time subsequently cease
to be applied, the question arises whether and to what extent
Article 103 § 2 of the Basic Law likewise protects the expectation
that they will continue to be applied. No general answer to that
question need be given here, because in the instant case a justification--based
partly on legal provisions and partly on administrative instructions
and practice--has been advanced in circumstances that make it
possible to restrict the absolute prohibition of retroactiveness
in Article 103 § 2 of the Basic Law.
........[C]itizens of the former
GDR are tried according to the criminal law that was applicable
to them at the material time, the law of the Federal Republic
[West Germany] in force at the time of conviction being applied
only if it is more lenient. ... This special basis of trust no
longer obtains where the other State [the former East Germany]
statutorily defines certain acts as serious criminal offences
while excluding the possibility of punishment by allowing grounds
of justification covering some of those acts and even by requiring
and encouraging them notwithstanding the provisions of written
law, thus gravely breaching the human rights generally recognised
by the international community. By such means those vested with
State power [had] set up a system so contrary to justice that
it can survive only for as long as the State authority which
brought it into being actually remains in existence.
.....In this wholly exceptional
situation, the requirement of objective justice, which also embraces
the need to respect the human rights recognised by the international
community, makes it impossible for a court to accept such justifications.
Absolute protection of the trust placed in the guarantee given
by Article 103 § 2 of the Basic Law must yield precedence,
otherwise the administration of criminal justice in the Federal
Republic would be at variance with its rule-of-law premises.
A citizen now subject to the criminal jurisdiction of the Federal
Republic is barred from relying on such grounds of justification;
in all other respects the principle of trust continues to apply,
every citizen enjoying the guarantee that if he is convicted
it will be on the basis of the law applicable to him at the time
when the offence was committed.
.... .... The Federal Republic has
experienced similar conflicts when dealing with the crimes of
National Socialism.
.....1. In that connection, the
Supreme Court of Justice for the British Zone, and later the
Federal Court of Justice, ruled on the question whether an act
might become punishable retroactively if a provision of written
law was disregarded on account of a gross breach of higher-ranking
legal principles. They took the view that there could be provisions
and instructions that had to be denied the status of law, notwithstanding
their claim to constitute law, because they infringed legal principles
which applied irrespective of whether they were recognised by
the State; whoever had behaved in accordance with such provisions
remained punishable. ... [T]he period of National Socialist rule
[before Germany was divided into East and West Germany] had shown
that the legislature was capable of imposing gross 'wrong' by
statute ..., so that, where a statutory provision was intolerably
inconsistent with justice, that provision should be disapplied
from the outset ...
.....2. ... That case-law also forms
the basis for the decisions challenged here. It states that a
court must disregard a justification if it purports to exonerate
the intentional killing of persons who sought nothing more than
to cross the intra-German border unarmed and without endangering
interests generally recognised as enjoying legal protection,
because such a justification, which puts the prohibition on crossing
the border above the right to life, must remain ineffective on
account of a manifest and intolerable infringement of elementary
precepts of justice and of human rights protected under international
law. The infringement in question is so serious as to offend
against the legal beliefs concerning the worth and dignity of
human beings that are common to all peoples. In such a case positive
[written] law has to give way to justice.
.....The Federal Court of Justice
described ... the [1966 UN] international human-rights covenants
[which] provided a basis for determining when a State was infringing
human rights according to the convictions of the world-wide legal
community.
..........(b) That assessment is
in keeping with the Basic Law. It is also supported by this Court's
judgment of 31 July 1973 on the Basic Treaty, which acknowledged
that the GDR's practice at the intra-German border was inhuman,
and that the Wall, the barbed wire, the 'death strip' and the
shoot-to-kill order were incompatible with the treaty obligations
entered into by the GDR ...
..........(c) Against the finding
that a ground of justification derived from State practice and
purporting to allow 'border violators' to be killed must be disregarded
as an instance of extreme State injustice, it cannot be objected
by the appellants that the right to life and the right to freedom
of movement are not unreservedly guaranteed by the International
Covenant on Civil and Political Rights ... But ... there were
orders which left no room for limitation of the use of firearms
according to the principle of proportionality, and which conveyed
to the border guards on the spot the view of their [immediate]
superiors--and ultimately of the National Defence Council--that
border violators were to be
'annihilated' if they could not be prevented from crossing the
border by other means. Through that subordination of the individual's
right to life to the State's interest in preventing border crossings
the written law was eclipsed by the requirements of political
expediency. Objectively speaking, this constituted extreme injustice.
..........(d) ... At the material
time Articles 112 and 113 of the GDR's Criminal Code absolutely
prohibited the intentional taking of human life and marked the
seriousness of such offences by prescribing severe punishment.
If, for the reasons discussed above, there is no admissible ground
of justification for a homicide, the definition of the offences
in the above-mentioned provisions of criminal law makes such
a homicide a punishable criminal offence.
.....3. ... As regards more particularly
the present applicant, the Federal Constitutional Court added:
........ The impugned decisions
are not open to any serious objections on constitutional grounds.
........ What
is decisive is rather whether the breach of the criminal law
was so obvious that it was plain without further thought or inquiry
to an average soldier possessed of the information which the
recipient of the order had.
.... That interpretation satisfies
the constitutional criterion of the principle of guilt. Admittedly,
misgivings as to whether the breach of criminal law was clear
beyond all doubt might arise from the fact that the GDR leadership,
exercising the authority of the State, broadened the justification
intended to cover the conduct of the border guards and thereby
made that justification available to them. That being so, it
is not self-evident that the dividing-line between criminal and
non-criminal conduct would be crystal clear to the average soldier,
and it would be inconsistent with the principle of guilt to hold
that the breach of criminal law was obvious to the soldiers on
the sole basis that there had--objectively-- been a serious breach
of human rights; it must therefore be shown in greater detail
why the individual soldier, in view of his education, indoctrination
and other circumstances, was in a position to recognise that
his action undoubtedly contravened the criminal law. The criminal
courts did not discuss the facts in detail from this point of
view in the initial proceedings. They did, however, show that
the killing of an unarmed fugitive by sustained fire was, in
the circumstances they had found, such a dreadful and wholly
unjustifiable act that it must have been immediately apparent
and obvious even to an indoctrinated person that it breached
the principle of proportionality and the elementary prohibition
on the taking of human life. ...
...........................II.
RELEVANT DOMESTIC AND INTERNATIONAL LAW
...............................................A.
The Treaty on German Unification
21. The Unification Treaty of
31 August 1990, taken together with the Unification Treaty Act
of 23 September 1990, provides, in the transitional provisions
of the Criminal Code ... that the applicable law is in principle
the law of the place where an offence was committed. That means
that, for acts committed by citizens of the GDR inside the territory
of the GDR, the applicable law is in principle that of the GDR.
... [T]he law of the FRG is applicable only if it is more lenient
than GDR law.
.................................B.
The legislation applicable in the GDR at the material time
..........................................................................
...
22. The relevant provisions
of the Constitution were the following:
....................................................................
Article 8
............."The generally
recognised rules of international law intended to promote peace
and peaceful
.............cooperation between
peoples are binding (sind verbindlich) on the State and every
citizen."
.................................................................Article
19 § 2
.............."Respect for
and protection of the dignity and liberty of the person are required
of all State
..............bodies, all forces
in society and every citizen."
.................................................................Article
30 §§ 1 and 2
.............."(1) The person
and liberty of every citizen of the German Democratic Republic
are inviolable.
...............(2) Restrictions
are authorised only in respect of conduct punishable under the
criminal law ...
...............and must be prescribed
by law. However, citizens' rights may be restricted only in so
far as the
...............law provides and
when such restriction appears to be unavoidable (unumgänglich)."
...................................................................Article
89 § 2
..............."Legal rules
shall not contradict the Constitution"
24. Article 95 of the
[East German] Criminal Code was worded as follows:
.............. "Any person
whose conduct violates human or fundamental rights, international
obligations or the
...............national sovereignty
of the German Democratic Republic may not plead statute law,
an order or
...............written instructions
in justification; he shall be held criminally responsible."
.............................................................................
...
30. Article 258 of the Criminal
Code provided:
..............."(1) Members
of the armed forces shall not be criminally responsible for acts
committed in ..............execution
of an order issued by a superior save where execution of the
order manifestly
...............violates the recognised
rules of public international law or a criminal statute.
.............. (2) Where a subordinate's
execution of an order manifestly violates the recognised rules
of
...............public
international law or a criminal statute, the superior
who issued that order shall also be
...............criminally responsible.
.............. (3) Criminal responsibility
shall not be incurred for refusal or failure to obey an order
whose ..............execution.would violate the rules of public international
law or a criminal statute."
................................C.
The International Covenant on Civil and Political Rights
...........................................................1.
The relevant provisions
34. The United Nations
International Covenant on Civil and Political Rights was ratified
by the GDR on 8 November 1974 (see paragraph 15 above). The relevant
provisions of the Covenant are worded as follows:
.....................................................................Article
6 §§ 1 and 2
...... "1. Every human
being has the inherent right to life. This right shall be protected
by law. No one
.......shall be arbitrarily deprived
of his life.
.............................................................................
...
...............................................................Article
12 §§ 2 and 3
........"2. Everyone shall
be free to leave any country, including his own.
........ 3. The above-mentioned
rights shall not be subject to any restrictions except those
which are
.........provided by law, are necessary
to protect national security, public order, public health or
morals
.........or the rights and freedoms
of others, and are consistent with the other rights recognised
in the
.........present Covenant."
...................................................2. The practice of the United Nations
35. Before the reunification
of Germany several members of the United Nations Human Rights
Committee, which is charged under Article 28 of the Covenant
with the task of ensuring that Contracting Parties fulfill their
obligations, expressed criticisms of the border-policing regime
set up in the GDR.
.....The summary ... pointed out
"[that with] respect to automatic weapons positioned along frontiers ... Article 6 §2 of the Covenant authorised capital punishment 'only for the most serious crimes'. An attempt to cross a frontier, even illegally, could in no case be considered a most serious crime. The killing of a person in such circumstances was simply a summary execution, without trial--a practice that was unjustifiable under Article 6."
.....On account of its restrictive policy on the freedom of movement, the GDR was repeatedly criticized under the Resolution 1503 procedure for failure to comply with the general obligation to respect human rights enshrined in Articles 1 § 3, 55 and 56 of the United Nations Charter. Thus, in the years 1981 to 1983, the GDR appeared in the list of countries to be examined under the Resolution 1503 procedure, as more than fifty persons (the number required for it to be possible to speak of a "consistent pattern of gross violations") had complained to the Commission on Human Rights about the GDR's policy of holding its people captive. However, the GDR authorised some of the complainants to leave its territory, thus succeeding in bringing their number below fifty and avoiding censure.
......................I. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION
41. The applicant submitted that the act on account of which he had been prosecuted did not constitute an offence, at the time when it was committed, according to the law of the GDR or international law, and that his conviction by the German courts had therefore breached Article 7 §1 of the Convention, which provides:
"No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence under national or international
law at the time when it was committed. Nor shall a heavier penalty be imposed than
the one that was applicable at the time the criminal offence was committed."
................A. Arguments
of those appearing before the [European] Court [of Human Rights]
................................................................1.
The applicant
42. According to the applicant,
his conviction after the reunification of Germany was not foreseeable,
and moreover he had never been prosecuted in the GDR. He alleged
that even the German courts had accepted that the reason why
he had not been prosecuted at the material time was that the
act on account of which he had been charged did not constitute
an offence under the criminal law of the GDR, regard being had
to the wording of section 17(2) of the GDR's People's Police
Act. He had acted at the material time in accordance with the
orders he had been given, by firing at the fugitive, after shouting
a warning, as the ultimate means of preventing the crossing of
the border. In general, moreover, border guards had no way of
knowing whether fugitives were criminals or persons who simply
wanted to leave the GDR. The ex post facto interpretation
of the GDR's criminal law by the courts of reunified Germany
was not based on any case-law of the GDR's courts and would have
been impossible for the applicant to foresee at the time of the
events which gave rise to the charges. What had taken place,
therefore, had not been a gradual development in the interpretation
of GDR law but rather a total refusal to accept the justifications
the applicant had invoked, on the ground that these were contrary
to the FRG's Basic Law. ...
................................................................2.
The Government
43. The Government submitted
that the applicant, like any other citizen of the GDR, could
easily have realised that the GDR's border-policing regime, with
its unparalleled technical sophistication and its ruthless use
of firearms, was directed against persons who had been forbidden
to leave the GDR by administrative authorities which constantly
refused, without giving reasons, to allow citizens of the GDR
to travel to the FRG, and particularly to West Berlin. Consequently,
he could also have foreseen that the killing of unarmed fugitives
who were not a threat to anyone might give rise to a criminal
prosecution under the relevant legal provisions, notwithstanding
the contrary practice followed by the GDR regime. In particular,
anyone could have foreseen that in the event of a change of regime
in the GDR these acts might constitute criminal offences. That
was particularly true in the case of Germany, a divided State,
on account of the family and other ties which transcended the
border.
.....The Government submitted that
the German courts had interpreted GDR law in a legitimate way.
If the GDR authorities had correctly applied their own relevant
legal provisions, taking account of the GDR's international obligations
after ratification of the International Covenant on Civil and
Political Rights and of general human-rights principles, including
protection of the right to life in particular, they should have
arrived at the same interpretation. The question whether or not
the International Covenant had been transposed into the GDR's
domestic law was of no consequence in that regard.
...................................................
B. The Court's assessment
........................................................
1. General principles
44. . . .
....While the Court's duty, according
to Article 19 of the Convention, is to ensure the observance
of the engagements undertaken by the Contracting Parties to the
Convention, it is not its function to deal with errors of fact
or law illegedly [sic] committed by a national court unless
and in so far as they may have infringed rights and freedoms
protected by the Convention. ...
45. Secondly, the Court reiterates the fundamental principles laid down in its case-law on Article 7 of the Convention ... [which] cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.
..................................2.
Application of the above principles to the present case
46. In the light of the above
principles concerning the scope of its supervision, the Court
observes that it is not its task to determine whether the applicant
as an individual was guilty, that being primarily a matter for
the assessment of the domestic courts, but to consider, from
the standpoint of Article 7 § 1 of the Convention, whether
his act, at the time when it was committed, constituted an offence
defined with sufficient accessibility and foreseeability by the
law of the GDR or international law.
47. In that connection,
it notes that one special feature of the present case is that
its background is the transition between two States governed
by two different legal systems, and that after reunification
the German courts convicted the applicant for a crime he had
committed as a GDR border guard.
.........................................................................
...
59. In the light of the above-mentioned
principles, enshrined in the Constitution and the other legal
provisions of the GDR, the Court therefore considers that the
applicant's conviction by the German courts, which had interpreted
the above provisions and applied them to the case in issue, does
not appear at first sight to have been either arbitrary or contrary
to Article 7 § 1 of the Convention.
.......................................iii.
Grounds of justification derived from GDR State practice
63. ... [I]t should be
pointed out that at the material time the applicant was not prosecuted
for the offence in the GDR. This was because of the contradiction
between the principles laid down in the GDR's Constitution and
its legislation, on the one hand, which were very similar to
those of a State governed by the rule of law, and the repressive
practice of the border-policing regime in the GDR and the orders
issued to protect the border, on the other.
............................................................................
...
67. The Court considers that
recourse to anti-personnel mines and automatic- fire systems,
in view of their automatic and indiscriminate effect, and the
categorical nature of the border guards' orders to "annihilate
border violators and protect the border at all costs" flagrantly
infringed the fundamental rights enshrined in ... [the Constitution
and legislation]. This State practice was also in breach of the
obligation to respect human life and the other international
obligations of the GDR, which, on 8 November 1974, ratified the
International Covenant on Civil and Political Rights, expressly
recognising the right to life and to the freedom of movement
(see paragraph 34 above), regard being had to the fact that it
was almost impossible for ordinary citizens to leave the GDR
legally. Even though the use of anti-personnel mines and automatic-fire
systems ceased in about 1984, the border guards' orders remained
unchanged until the fall of the Berlin Wall in November 1989.
..................................................iv.
Foreseeability of the conviction
68. However, the applicant
argued that as a GDR border guard he had been the last link in
the chain of command and that he had always obeyed the orders
he had been given. His conviction by the German courts, therefore,
had not been foreseeable and it had been absolutely impossible
for him to foresee that he would one day be called to account
in a criminal court because of a change of circumstances.
69. That argument merits consideration.
70. In the Streletz, Kessler and Krenz v. Germany judgment [above], the Court stressed the former leaders' obvious responsibility for the deliberate implementation and continuation of a State practice which they knew or should have known to be in flagrant breach of the principles of the GDR's own legislation and internationally protected human rights. However, that reasoning does not, as it stands, apply to the facts of the present case.
71. As a young soldier (aged 20 at the material time) stationed on the border between the two German States, the applicant had undergone the indoctrination of young NVA recruits, had to obey his superiors' orders to protect the border "at all costs" and ran the risk of becoming the subject of an investigation by the military prosecution service if a fugitive succeeded in crossing the border (see paragraph 17 above).
72. In the present case the question therefore arises to what extent the applicant, as a private soldier, knew or should have known that firing on persons who merely wanted to cross the border was an offence according to GDR law.
73. In that connection, the Court first observes that the written law was accessible to all. The provisions concerned were the Constitution and Criminal Code of the GDR, not obscure regulations. The axiom "ignorance of the law is no defence" applied to the applicant too.
74. Moreover, he had voluntarily enlisted for a three-year period in the NVA [East German military]. Every citizen of the GDR knew the State's restrictive policy on the freedom of movement, the nature of the border-policing regime, the desire of the majority of its people to be allowed to go abroad and the fact that a number of them, known as "fugitives from the Republic" (Republikflüchtlinge), attempted by all available means to do so. The applicant therefore knew or should have known that enlisting for a three-year period of military service amounted to giving his allegiance to the regime in power and entailed the possibility of being posted to the border, where he would run the risk of being obliged to fire on unarmed fugitives.
75. Furthermore, the Court takes the view that even a private soldier could not show total, blind obedience to orders which flagrantly infringed not only the GDR's own legal principles but also internationally recognised human rights, in particular the right to life, which is the supreme value in the hierarchy of human rights.
76. Even though the applicant was in a particularly difficult situation on the spot, in view of the political context in the GDR at the material time, such orders could not justify firing on unarmed persons who were merely trying to leave the country.
77. Already at that time Article 95 of the 1968 version of the GDR's Criminal Code provided: "Any person whose conduct violates human or fundamental rights ... may not plead statute law, an order or written instructions in justification; he shall be held criminally responsible" (see paragraph 24 above).
78. Similarly, Article 258 of the GDR's Criminal Code provided: "Members of the armed forces shall not be criminally responsible for acts committed in execution of an order issued by a superior save where execution of the order manifestly violates the recognised rules of public international law or the written criminal law" (see paragraph 30 above).
79. In addition, the principles affirmed in Resolution 95 (I) of the United Nations General Assembly in 1946 (known as "the Nuremberg principles") include the following principle: "The fact that the Defendant acted pursuant to [an order] shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires".
80. The Court notes that the German courts examined in detail the extenuating circumstances in the applicant's favour before giving the following ruling: "The decisive factor is that the killing of an unarmed fugitive by sustained fire was, in the circumstances of the case, such a dreadful act, not justifiable by any defence whatsoever, that it must have been immediately apparent and obvious even to an indoctrinated person that it breached the proportionality principle and the elementary prohibition on the taking of human life" (see paragraph 18 above).
81. Moreover, in passing sentence, the German courts duly took account of the differences in responsibility between the former leaders of the GDR and the applicant by sentencing the former to terms of imprisonment (previously cited Streletz, Kessler and Krenz judgment ... ), whereas the applicant in the present case was given a suspended sentence subject to probation (see paragraphs 17 and 18 above).
82. Furthermore, the fact that the applicant had not been prosecuted in the GDR, and was not prosecuted and convicted by the German courts until after the reunification, on the basis of the legal provisions applicable in the GDR at the material time, does not in any way mean that his act was not an offence according to the law of the GDR.
83. In that connection, the Court notes that the problem Germany had to deal with after reunification as regards the attitude to adopt vis-à-vis persons who had committed crimes under a former regime has also arisen for a number of other States which have gone through a transition to a democratic regime.
84. The Court considers
that it is legitimate for a State governed by the rule of law
to bring criminal proceedings against persons who have committed
crimes under a former regime; similarly, the courts of such a
State, having taken the place of those which existed previously,
cannot be criticised for applying and interpreting the legal
provisions in force at the material time in the light of the
principles governing a State subject to the rule of law.
...........................................................................
...
86. Contrary reasoning would
run counter to the very principles on which the whole system
of protection put in place by the Convention is built. The framers
of the Convention referred to those principles in the preamble
to the Convention when they reaffirmed "their profound belief
in those fundamental freedoms which are the foundation of justice
and peace in the world and are best maintained on the one hand
by an effective political democracy and on the other by a common
understanding and observance of the human rights upon which they
depend" and declared that they were "like-minded"
and had "a common heritage of political traditions, ideals,
freedom and the rule of law".
88. Moreover, regard being had to the pre-eminence of the right to life in all international instruments on the protection of human rights, including the Convention itself, in which the right to life is guaranteed in Article 2, the Court considers that the German courts' strict interpretation of the GDR's legislation in the present case was compatible with Article 7 §1 of the Convention [see paragraph 41 above].
90. The Court considers that a State practice such as the GDR's border-policing policy, which flagrantly infringes human rights and above all the right to life, the supreme value in the international hierarchy of human rights, cannot be covered by the protection of Article 7 § 1 of the Convention. That practice, which emptied of its substance the legislation on which it was supposed to be based, and which was imposed on all organs of the GDR, including its judicial bodies, cannot be described as "law" within the meaning of Article 7 of the Convention.
91. Having regard to all of the above considerations, the Court holds that at the time when it was committed the applicant's act constituted an offence defined with sufficient accessibility and foreseeability in GDR law.
.......................................................(b)
International law
.........................................................
i. Applicable rules
92. The Court considers
that it is its duty to examine the present case from the standpoint
of the principles of international law also, particularly those
relating to the international protection of human rights, especially
because the German courts used arguments grounded on those principles
(see paragraph 18 above).
93. It is therefore necessary to consider whether, at the time when it was committed, the applicant's act constituted an offence defined with sufficient accessibility and foreseeability under international law, particularly the rules of international law on the protection of human rights.
[At this point, the ECHR's majority opinion reviews the
Universal Declaration on Human Rights Article 3 provision that
"Everyone has the right to life;" the International
Covenant on Civil and Political Rights Article 6 provisions that
"Every human being has the inherent right to life"
and "No one shall be arbitrarily deprived of his life;"
and the Convention for the Protection of Human Rights and Fundamental
Freedoms Article 2 §1 provision that "Everyone's right
to life shall be protected by law. No one shall be deprived of
his life intentionally save in the execution of a sentence of
a court following his conviction of a crime for which this penalty
is provided by law."]
..........................................................................
...
96. The convergence of the
above-mentioned instruments is significant: it indicates that
the right to life is an inalienable attribute of human beings
and forms the supreme value in the hierarchy of human rights.
[The ECHR then proceeds to discuss the of the International
Covenant on Civil and Political Rights Article 12 §2 provision
that "Everyone shall be free to leave any country, including
his own."]
.............................................................................
...
.................... iv. The
GDR's State responsibility and the applicant's individual responsibility
102. Thus, by installing
anti-personnel mines and automatic-fire systems along the border,
and by ordering border guards to "annihilate border violators
and protect the border at all costs", the GDR had set up
a border-policing regime that clearly disregarded the need to
preserve human life, which was enshrined in the GDR's Constitution
and legislation, and the right to life protected by the above-mentioned
international instruments; that regime likewise infringed the
right to the freedom of movement mentioned in Article 12 of the
International Covenant on Civil and Political Rights.
103. If the GDR still existed, it would be responsible from the viewpoint of international law for the acts concerned. It remains to be established that alongside that State responsibility the applicant individually bore criminal responsibility at the material time. Even supposing that such responsibility cannot be inferred from the above-mentioned international instruments on the protection of human rights, it may be deduced from those instruments when they are read together with Article 95 of the GDR's Criminal Code, which explicitly provided, and from as long ago as 1968 moreover, that individual criminal responsibility was to be borne by those who violated human rights, fundamental freedoms or the GDR's international obligations.
104. Although the applicant was not directly responsible for the above State practice, and although the event in issue took place in 1972, and therefore before ratification of the International Covenant, he should have known, as an ordinary citizen, that firing on unarmed persons who were merely trying to leave their country infringed fundamental and human rights, as he could not have been unaware of the legislation of his own country.
105. In the light of all
of the above considerations, the Court considers that at the
time when it was committed the applicant's act constituted an
offence defined with sufficient accessibility and foreseeability
by the rules of international law on the protection of human
rights.
..........................................................................
...
..................................................(c)
The question of limitation
110. Admittedly, under Article
82 § 1 (4) of the 1968 version of the GDR's Criminal Code,
the limitation period for offences attracting a maximum sentence
of ten years' imprisonment, a category which included intentional
homicide, was fifteen years. But Article 84 of the same Code
provided: "Crimes against peace, humanity or human rights
... shall not be subject to the rules on limitation set out in
this law". That provision, which excluded certain categories
of crime, including human rights violations, from those subject
to limitation, was already in force at the time of the act in
issue. Similarly, the right to life was also, at that time, already
one of the human rights whose violation was excluded from the
rules on limitation by Article 84 of the GDR's Criminal Code,
even though it was not recognised by the GDR in a treaty until
1974. The Court has found in the present case that the applicant
committed a violation of human rights. Accordingly, even if he
had pleaded limitation, his argument could not have been accepted.
111. Moreover, on 26 March 1993 the FRG enacted a statute of which the first section provided for the suspension of limitation in respect of "acts committed under the unjust regime of the Socialist Unity Party"; the result of that suspension was to make limitation periods begin to run, not at the time when the offence was committed, but on 3 October 1990, when the GDR ceased to exist. Similar legislation was enacted in Poland in respect of "communist crimes", particularly those which involved human rights violations between 1939 and 1989. However, given that it can be deduced from the law of the GDR itself that the offence for which the applicant was prosecuted was not subject to limitation (see paragraph 110 above), the Court is not required to consider the scope of the FRG's Limitations Act of 26 March 1993.
..............................................................(d)
Conclusion
113. Accordingly, the applicant's
conviction by the German courts after the reunification did not
breach Article 7 §1.
..........................................................................
...
[The two concurring opinions are omitted.]
................... PARTLY
DISSENTING OPINION OF JUDGE CABRAL BARRETO
..................................................[parenthetical
citations omitted]
.....To my keen regret, and for
the reasons set out below, I cannot concur with the majority
in this case.
1. The transition from a
"State of non-law" to a State based on the rule of
law always raises the thorny question of the crimes committed
under the previous regime which have gone unpunished. Europe's
recent history provides examples of three different attitudes
on this question, namely:
.........(a) total forgiveness,
a kind of amnesty intended to permit national reconciliation;
.........(b) punishment of offences
committed by a certain category of persons;
.........(c) punishment of certain
offences.
.....Moreover, as the Court pointed
out in its judgment (paragraph 84), the prosecution of persons
who have committed such crimes is in itself legitimate. It is
not open to criticism provided that, in the procedure itself
and in the punishment of the perpetrators, the principles enshrined
in the Convention are applied.
.....Since such prosecution involves
punishment for acts committed under a previous regime, the principles
of legality and non-retroactive application of the law are necessarily
stretched.
.....That is why some States, either
because they are not entirely sure whether prosecution for such
crimes under their criminal law would be compatible with the
Convention or because they seek to protect themselves against
future development of the case-law, deposit reservations when
they ratify the Convention.
2. It is settled case-law
that Article 7 of the Convention requires the offence to be clearly
defined by law, and that this implies that the law must be clear,
foreseeable as to its effects and accessible.
.....The requirement of clearly
defined law is satisfied where it is possible to say, on the
basis of the relevant legal provision, what acts or omissions
will entail criminal responsibility, even if this has to be determined
by the courts interpreting the provision concerned.
.....Foreseeability depends to a
considerable degree on the content of the instrument in issue,
the field it is designed to cover and the number and status of
those to whom it is addressed.A law may still satisfy the requirement
of foreseeability even if the person concerned has to take appropriate
legal advice to assess, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail.
Accessibility presupposes that information concerning the legal
rule making the acts in question punishable must be available
to the person concerned.
3. It is difficult for
me to concur in the majority's conclusion that all these requirements
were satisfied in the instant case. I can accept that the relevant
statutes were accessible inasmuch as interested parties could
obtain them and inform themselves of their content. However,
I have doubts about their clarity and foreseeability. Admittedly,
the taking of human life was punishable under the GDR's Criminal
Code. But the GDR's legal system also required border guards
to open fire on persons trying to cross the border, after complying
with certain rules relating to warning shots.
.....Faced with the conflict between
the prohibition on killing and the obligation to obey the competent
authorities, which had given orders to open fire in order to
prevent escapes, I have no hesitation in concluding that, in
the context at the material time, firing at a person crossing
the border after complying with the rules on warnings could not,
in the applicant's mind, have amounted to intentional homicide
within the meaning of his country's Criminal Code.
.....It should not be forgotten
that at the time there was no relevant case-law to which the
applicant could have turned for guidance, and if he had consulted
a lawyer it is not difficult to guess what the latter's answer
would have been.
.....Regard being had to the statutes
in force at the time of the acts for which the applicant stood
trial and the way in which those statutes were interpreted, it
cannot now be said that the applicant should have realised, at
the time of the offence, that by firing at the fugitive he would
be committing intentional homicide.
.....On the contrary, what he could
foresee was that, after the warning shots, if he did not fire
at the person to prevent his escape his conduct would make him
liable to a disciplinary inquiry and could therefore be censured.
In my opinion, to take the view that the applicant, who was at
the time a young soldier of 20, should have foreseen that his
conduct could be held to constitute intentional homicide in the
circumstances of the present case is to go beyond the conditions
which, according to settled case-law, govern the interpretation
of Article 7 of the Convention; the foreseeability required of
the law in issue must be assessed by the yardstick of a normal
person at the same time and in the same place as the applicant.
.....In spite of the loss of human
life, which is always to be deplored, I fail to see how, from
the strictly legal point of view, one can reach the conclusion
that the GDR's legal system, as it existed and was interpreted
at the material time, required the applicant to forget the justification
of his action, observing only the rule that the taking of human
life constituted intentional homicide.
.....I can readily accept that the
applicant acted in the firm belief that his conduct was lawful
and that he did not for a moment think that what he did amounted
to intentional homicide within the meaning of the 1968 version
of the GDR's Criminal Code. I further consider that, at that
time in the GDR, any normal person placed in an identical situation
would have acted in the same way.
.....I can therefore only find that
the requirements of foreseeability and accessibility were not
satisfied and that there has accordingly been a violation of
Article 7 §1 of the Convention on account of the applicant's
conviction by the German courts for intentional homicide.
4. As regards the question
whether the applicant's action could be considered [whether the
prosecution was timely] (paragraph 2 of Article 7), I endorse
Mr Pellonpää's dissenting opinion.
.....I must emphasize once again
that what matters is whether the act could be considered criminal
"at the time when it was committed". Despite the development
of this concept which had already taken place since the adoption
of the Nuremberg principles, I consider that in 1972 the applicant's
individual action could not yet be considered "criminal
according to the general principles of law recognised by civilised
nations"
5. Moreover, I consider that the majority should have reached a different conclusion with regard to the question of limitation (paragraphs 108 to 111 of the judgment) [paragraphs 110-111 provided above].
5.1 Under Article 82 §
1(4) of the 1968 version of the GDR's Criminal Code, the limitation
period for intentional homicide was fifteen years.
.....As the offence for which the
applicant stood trial was committed in February 1972, prosecution
became statute-barred in 1987.
.....It is true that Article 84
of the Code provided: "Crimes against peace, humanity or
human rights, and war crimes shall not be subject to the rules
on limitation ...'' That is what led the majority to conclude
that once it had been established that the offence for which
the applicant stood trial constituted a crime against human rights
the GDR's Criminal Code permitted no limitation on prosecution.
.....But it should not be forgotten
that what is important is the question whether, at the time when
it was committed, the offence was, according to the GDR's Criminal
Code, a crime against "human rights".
.....In that connection, although
the gradual development of the concept of "crimes against
human rights" since 1972 cannot be denied, even in a country
like the GDR, I still find it inconceivable that a plausible
interpretation of that concept as it stood at the time of the
offence could include the applicant's action.
.....I also find it difficult to
accept that the interpretation of the concept had developed sufficiently
for it to be possible to conclude, notably with the assistance
of judicial interpretation, that at least by the month of February
1987, when the limitation period expired, the applicant's action
constituted a "crime against human rights".
.....According to the dominant ideology
at the time in the GDR, and to the world view and outlook on
life which prevailed there, the applicant's action, though regrettable,
as I must reiterate, was regarded not as a crime but as a praiseworthy
deed.
.....Moreover, in interpreting the
provisions of the 1968 Criminal Code, it is not appropriate to
substitute for the ideas which prevailed at the time those which
are current today. The only factors to be taken into consideration
are the objective definition of what was illegal in that historical
context and the applicant's subjective assessment of the situation
in which he acted.human rights").
5.2 The majority also
mentioned the FRG's Act of 26 March 1993 on the suspension of
limitation in respect of "acts committed under the unjust
regime of the Socialist Unity Party", under which limitation
periods begin to run not from the time when the offence was committed
but from 3 October 1990, the date when the GDR ceased to exist.
.....There has always been disagreement
among academic writers about the legal nature of limitation,
but it seems more appropriate to accept that with regard to criminal
prosecution limitation is mixed in nature, being both procedural
and substantive at the same time.
.....That means that the principle
of not applying the law retrospectively to the detriment of the
accused covers limitation once the period initially laid down
has expired.
.....The Court has not yet had the
opportunity to determine that issue.
............................................................................
...
.....Lastly, I remain convinced
that the applicant, who was then a young man without maturity
or independence, and who had been indoctrinated in accordance
with the dominant ideology, was rather the victim of a regime
and a system which the Court, with my full support, has just
censured today in the Streletz, Kessler and Krenz judgment.
PARTLY DISSENTING OPINION OF JUDGE PELLONPÄÄ,
JOINED BY JUDGE ZUPANCIC.........................................................................
...
.....Even so, those differences
on their own indicate that the interpretation of the grounds
of defence afforded by section 17(2) of the Police Act was by
no means straightforward. The difficulties were compounded by
the fact that the applicant could not, of course, benefit from
any settled case-law clarifying the contents of the provision.
Moreover, the legal framework within which the applicant lived
did not consist only in legislation emanating from Parliament.
In order for the guarantee of Article 7 to be "real and
effective" rather than "theoretical and illusory,"
provisions such as the above-mentioned section 17(2) should not
be looked upon in isolation from the context of the GDR's legal
system as a whole.
.....According to Article 73 of
the GDR's Constitution, the Council of State laid down the principles
to be followed in matters of national defence and security and
organised defence with the assistance of the National Defence
Council. As stated in the judgment, the orders on which, among
others, the applicant acted "had incontestably been decided
upon by the organs of government of the GDR mentioned in Article
73 of its Constitution." In other words, the applicant seems
to have acted in accordance with orders emanating from prima
facie "constitutionally competent" organs. I find
it somewhat unreasonable to require that the applicant should
have been able to decide a conflict between those orders and
other provisions (such as section 17(2) of the Police Act), applying
methods used in a State based on the rule of law. That such methods
were not generally applied in the GDR is indicated, for example,
by Article 89 §3 of the 1968 Constitution, according to
which the Council of State (and not, say, the Supreme Court)
was to decide if doubt arose about the constitutionality of legal
provisions emanating from the Council of Ministers or other State
organs.
.....It would be a futile effort
(and one beyond my present role) to try to find the "correct"
interpretation of the relevant GDR law. The above remarks were
made in order to show that, in my view, when the applicant and
his co-accused, after shouting a warning, fired first warning
shots and then the fatal shot, the applicant could not reasonably
foresee that he could be convicted of intentional homicide. The
GDR law that was applied therefore did not fulfill the test of
foreseeability required by Article 7 of the Convention. The question
then arises whether his act was criminal under international
law, within the meaning of either paragraph 1 [see paragraph
41] or paragraph 2 of Article 7.
.....Before addressing that question,
I should emphasis that, unlike the applicants in Streletz, Kessler
and Krenz, the present applicant cannot be held responsible for
the "contradiction between the principles laid down in the
GDR's Constitution and its legislation ... and the repressive
practice" (see paragraph 63 of the judgment). Nor am I fully
convinced that persons in the applicant's position were envisaged
by the democratically elected parliament of the GDR, which in
the summer of 1990 requested the legislature of the united Germany
"to ensure that criminal prosecutions would be brought in
respect of the injustices committed by the SED." The fact
that the applicant volunteered to serve in the army for three
years does not show any particular allegiance to the inhuman
border-control system. As can be seen from the judgments of the
trial court and the Federal Court of Justice, he appears to have
done this reluctantly and at the insistence of his father, a
professional soldier. Thus his voluntary service is an indication
rather of a lack of independence and maturity than of any particular
commitment to the system. However that may be, his decision to
do three years' military service did not in my view increase
the foreseeability required by Article 7 in any legally relevant
manner.
.....There remains the question
whether the applicant's act was nevertheless "criminal according
to the general principles of law recognised by civilised nations"
for the purposes of paragraph 2 of Article 7, or constituted
a crime under international law on other grounds (paragraph 1).
.....I accept that there are arguments
for the proposition that a policy of closing a State's borders
constituted, even in the 1970s, a crime against humanity according
to the Nuremberg principles as they had developed over the years.
Such a policy could be regarded as a large-scale and systematic
violation of human rights within the meaning of the Nuremberg
principles. Thus it would arguably have been possible to justify
the conviction of those responsible for that policy also with
reference to paragraph 2 of Article 7. Whether an individual
act, such as the one in issue here, was able to trigger responsibility
for a crime against humanity is, however, a different question.
Regardless of what the answer to that question might be today,
I can find no authority for the proposition that the act committed
by the applicant in 1972 was at that time a crime against humanity
within the meaning of the Nuremberg principles. That being so,
I also conclude that Resolution 95 (I) of the UN General Assembly
(see paragraph 79 of the judgment), which applies to acts covered
by those principles, has no direct bearing in the present case.
.....I am no more persuaded that
the applicant's individual criminal responsibility under international
law could be based on other sources, such as comparative considerations.
Although the GDR border-control system was in many respects unique,
the use of deadly force has been tolerated--to varying degrees--in
democratic societies as well. ...
............................................................................
...
Notes & Questions
1. Paragraph 20.2 states that "a court
must disregard a justification if it purports to exonerate the
intentional killing of persons who sought nothing more than to
cross the intra-German border unarmed and without endangering
interests generally recognised as enjoying legal protection,
because such a justification, which puts the prohibition on crossing
the border above the right to life, must remain ineffective on
account of a manifest and intolerable infringement of elementary
precepts of justice and of human rights protected under international
law." Paragraph 20.3 states that "it is not
self-evident that the dividing-line between criminal and non-criminal
conduct would be crystal clear to the average soldier, and it
would be inconsistent with the principle of guilt to hold that
the breach of criminal law was obvious to the soldiers on the
sole basis that there had--objectively--been a serious breach
of human rights." You are a 20 year old border guard in
a totalitarian State (i.e., you are K.-H.W. who is on
trial for following orders. You are not a university student
and you have not taken a course on International Law.
.....Is it self-evident that your
following orders to annihilate fleeing border crossers will subject
you to criminal responsibility--along with your senior officer
who answers to the East German Ministry of Defence and, in turn,
the National Defence Council?
2. You studied US v. Calley in §10.6 of this text/course. Paragraph 20 of Calley includes the following statement in the military tribunal's majority opinion:
..........In the stress of combat,
a member of the armed forces cannot reasonably be expected to
make a
..........refined legal judgment
and be held criminally responsible if he guesses wrong on a question
as to
..........which there may be considerable
disagreement. But there is no disagreement as to the illegality
of
..........the order to kill in this
case. For 100 years, it has been a settled rule of American law
that even in
..........war the summary killing
of an enemy, who has submitted to, and is under, effective physical
control,
..........is murder.
.....In your role as the 20 year old border guard, are you thus more responsible than Lt. Calley--and deserving of a greater punishment--because you killed an unarmed fleeing civilian in circumstances where your military unit was not threatened in any way? Note paragraph 5.1 of Judge ___ dissenting opinion that "the applicant's action, though regrettable, as I must reiterate, was regarded not as a crime but as a praiseworthy deed."
3. In paragraph 81, the ECHR mentions the comparative
degrees of responsibility between this 20 year old lower echelon
soldier (probation) and the GDR leaders who received prison terms.
In paragraph 104, the ECHR says that the defendant in
this case "could not have been unaware of the legislation
of his own country." At least the Court did not say
that i was likely that he had ever read the East German Constitution
or had ever heard of the International Covenant on Civil and
Political Rights.
.....Is the ECHR's confirmation
of the German court guilty verdict a compromise between human
rights and fundamental fairness? Did the national and international
courts who reviewed the trial court guilt verdict have the preconceived
notion that they would find both classes of defendants guilty,
accompanied by a lesser sentence to the defendant in this case?
Regarding his foreseeability of a violation of the applicable
human rights laws, the ECHR notes in paragraph 69: "That
argument merits consideration."
.....On the other hand, assume that
any of these courts found the 20 year old not guilty.
What would be the consequences of a finding that he was not guilty?
Would one of them be a judicial exception to the ICCPR which
places the right to life at the apex of human rights? (See
paragraph 86.)
4. A comprehensive analysis of this case is provided in P. Quint, The Border Guard Trials and the East German Past--Seven Arguments, 48 AMER J. COMP. LAW 541 (2000).
Go ToChapter 11, §11.3, text
p.554 (remainder of Enforcement subsection)