Streletz v Germany
Streletz, Kessley and Krenz v Germany and K-H.W. v Germany
Grand Chamber, 22 March 2001
Three of the applicants, all German nationals, had been senior officials of the German Democratic Republic: Streletz was a Deputy Minister of Defence; Kessler was a Minister of Defence and Krenz was President of the Council of State. The fourth applicant, Mr K.-H. W. had been a member of the GDR's National People's Army (NVA) and had been stationed as a border guard on the border between the two German States.
All four applicants were convicted by the courts of the Federal Republic of Germany (FRG), after German unification on 3 October 1990, under the relevant provisions of the GDR's Criminal Code, and subsequently those of the FRG's Criminal Code, which were more lenient than those of the GDR. Mr Streletz, Mr Kessler and Mr Krenz were sentenced to terms of imprisonment of five-and-a-half years, seven-and-a-half years and six-and-a-half years respectively for intentional homicide as indirect principals on the ground that through their participation in decisions of the GDR's highest authorities, such as the National Defence Council or the Politbüro, concerning the regime for the policing of the GDR's border, they were responsible for the deaths of a number of people who had tried to flee the GDR across the intra-German border between 1971 and 1989. Mr W. was sentenced to one year and ten months' imprisonment, suspended, for intentional homicide (Totschlag), on the ground that by using his firearm he had caused the death of a person who had attempted to escape from the GDR across the border in 1972. The applicants' convictions were upheld by the Federal Court of Justice and declared by the Federal Constitutional Court to be compatible with the Constitution.
The applicants submitted that their actions, at the time when they were committed, did not constitute offences under the law of the GDR or international law and that their conviction by the German courts had therefore breached Article 7(1) of the European Convention on Human Rights (no punishment without law). They also relied on Articles 1 (obligation to respect human rights) and 2 (2) (exceptions to the right to life) of the Convention.
The applicants' complaint under Article 7 was rejected. The Court considered the applicants' arguments in relation (1) to national law and (2) to international law.
(1) National law: The Court observed that its task was to consider, from the standpoint of Article 7(1) of the Convention, whether, at the time when they were committed, the applicants' acts constituted offences defined with sufficient accessibility and foreseeability by the law of the GDR or international law.
The Court noted that the legal basis for the applicants' convictions was the criminal law of the GDR applicable at the material time, and that their sentences corresponded in principle to those prescribed in the relevant provisions of the GDR's legislation; in the event, the sentences imposed on the applicants had been lower, thanks to the principle of applying the more lenient law, which was that of the FRG.
The applicants argued that though technically they had committed offences under GDR law, they would have been exonerated, had they been tried at the time, by the justifications written into that law. They relied in particular on section 17(2) of the GDR's People's Police Act and section 27(2) of the State Borders Act. The Court rejected this argument. In the light of the principles enshrined in the GDR's Constitution and other legal provisions (which expressly included the principles of proportionality and the need to preserve human life when firearms were used), the Court considered that that the applicants' conviction by the German courts, which had interpreted those provisions and applied them to the cases in issue, did not appear at first sight to have been either arbitrary or contrary to Article 7(1) of the Convention.
The applicants also argued that their actions had been justified by GDR state practice, which had been to protect the border between the two German States "at all costs" in order to preserve the GDR's existence, which was threatened by the massive exodus of its own population. The FRG respondent government contended, and the Court accepted, that this justification had to be limited by the principles enunciated in the Constitution and legislation of the GDR itself; above all, it had to respect the need to preserve human life, enshrined in the GDR's Constitution, People's Police Act and State Borders Act, regard being had to the fact that even at the material time the right to life was already, internationally, the supreme value in the hierarchy of human rights.
In any event, the Court considered that the broad divide between the GDR's legislation and its practice was to a great extent the work of the first three applicants themselves. Because of the very senior positions they occupied in the State apparatus, they evidently could not have been ignorant of the GDR's Constitution and legislation, or of its international obligations and the criticisms of its border-policing regime that had been made internationally. Moreover, they themselves had implemented or maintained that regime, by superimposing on the statutory provisions, published in the GDR's Official Gazette, secret orders and service instructions on the consolidation and improvement of the border-protection installations and the use of firearms. The applicants had therefore been directly responsible for the situation which had obtained at the border between the two German States from the beginning of the 1960s until the fall of the Berlin Wall in 1989.
As far as the convictions of the individual border guard was concerned, the Court took 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, the supreme value in the hierarchy of human rights. 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.
In addition, the Court noted that the German courts had examined in detail the extenuating circumstances in the applicant's favour and had duly taken account of the differences in responsibility between the former leaders of the GDR and the applicant by sentencing the former to terms of imprisonment and the latter to a suspended sentence subject to probation.
In relation to both judgments against the first three and the fourth applicants, the Court considered that it was legitimate for a State governed by the rule of law to bring criminal proceedings against persons who had committed crimes under a former regime; similarly, the courts of such a State, having taken the place of those which existed previously, could not 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.
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 was guaranteed by Article 2, the Court considered that the German courts' strict interpretation of the GDR's legislation in the present case was compatible with Art. 7(1) of the Convention.
Lastly, the Court considered that a State practice such as the GDR's border-policing policy, which flagrantly infringed human rights and above all the right to life, the supreme value in the international hierarchy of human rights, could not be covered by the protection of Art 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, could not be described as "law" within the meaning of Article 7 of the Convention.
Having regard to all of the above considerations, the Court held that at the time when they were committed the applicants' acts constituted offences defined with sufficient accessibility and foreseeability in GDR law.
(2) International law
In Court observed that international conventions and other instruments had constantly affirmed the pre-eminence of the right to life. Therefore the applicants' acts were not justified in any way under the exceptions to the right to life contemplated in Art 2(2) of the Convention. Their acts also interfered with the internationally recognised right to freedom of movement (Art 2(2) of Protocol No. 4 to the Convention, and Article 12(2) of the International Covenant on Civil and Political Rights)
Even supposing that the applicants' criminal responsibility could not be inferred from the above-mentioned international instruments on the protection of human rights, it could be deduced from those instruments when they were 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 the GDR's international obligations or human rights and fundamental freedoms.
In the light of all of the above considerations, the Court considered that at the time when they were committed the applicants' acts also constituted offences defined with sufficient accessibility and foreseeability by the rules of international law on the protection of human rights.
In addition, the applicants' conduct could be considered, likewise under Article 7(1) of the Convention, from the standpoint of other rules of international law, notably those concerning crimes against humanity. However, the conclusion reached by the Court made consideration of that point unnecessary.
Accordingly, the applicants' conviction by the German courts after reunification had not breached Article 7(1). In the light of that finding, the Court was not required to consider whether their convictions were justified under Article 7 (2) of the Convention.
As for the applicants' complaint under Article 1 of the Convention, the Court noted that this was a framework provision that could not be breached on its own. It could, however, be examined under Article 14 of the Convention taken together with Article 7, as the applicants had complained in substance of discrimination they had allegedly suffered as former citizens of the GDR. However, the Court considered that the principles applied by the Federal Constitutional Court had general scope and were therefore equally valid in respect of persons who were not former nationals of the GDR. Accordingly, there had been no discrimination contrary to Article 14 of the Convention taken together with Article 7.
COMMENT (March 30 2001)
The "border guard" is a classic jurisprudence examination problem. Responses fall into two categories. The first is based on the assumption that the punishment of abhorrent crimes by retrospective application of criminal laws is not a breach of the rule against retrospectivity, because such crimes must be punished at all costs. The second is predicated on a more logical approach to the letter and spirit of the law. Either Article 7(1) prohibits the retrospective application of criminal law, or it doesn't. It cannot be allowed to apply to some acts which appear to be more deserving of punishment than others; if that it does, the very legal certainty which the Article requires of signatory states is undermined and the whole Convention house of cards collapses.
Rosalind English, 1 Crown Office Row