CASE OF K.-H. W. v. GERMANY
No violation of Art. 7-1;No violation of Art. 14+7
Luzius Wildhaber;Nicolas Bratza
10. The applicant is a German national who was born in 1952 and lives in Berlin (Germany). 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 (Selbstschussanlagen). 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” (Arbeitsgemeinschaft 13. August), 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. 12. The Council of State (Staatsrat) of the GDR laid down the principles to be followed in matters of national defence and security and organised defence with the assistance of the GDR’s National Defence Council (Nationaler Verteidigungsrat – NVR; Article 73 of the GDR’s Constitution – see paragraph 22 below). The Political Bureau (Politbüro) of the SED’s Central Committee was the party’s decision-making organ and the most powerful authority in the GDR. It took all policy decisions and all decisions concerning the appointment of the country’s leaders. The number of its members varied: after the SED’s XIth and last Congress in April 1986 it had 22 members and five candidate members. The presidents of both these bodies, and the president of the GDR’s parliament – the Volkskammer – were members of the GDR’s Socialist Unity Party (Sozialistische Einheitspartei Deutschlands – “the SED”). The Secretary-General of the SED’s Central Committee presided over the National Defence Council, and all the members of the Council were party officials. It met in general twice a year and took important decisions about the establishment and consolidation of the border-policing regime (Grenzregime) and about orders to open fire (Schiessbefehle). 13. GDR border guards (Grenztruppen der DDR) were members of the National People’s Army (Nationale Volksarmee – “the NVA”) and were directly answerable to the Ministry of Defence (Ministerium für nationale Verteidigung). 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 (Befehle) and service instructions (Dienstvorschriften) 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’ (Grenzverletzer) should in all cases be arrested as adversaries (Gegner) or, if necessary, annihilated (vernichtet)”. 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 (Grenzsicherungsanlagen) 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 travellers 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 (see paragraph 40 below) 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 (die strafrechtliche Verfolgung des SED-Unrechts sicherzustellen). 17. In a judgment of 17 June 1993 the Berlin Regional Court (Landgericht) sentenced the applicant to one year and ten months’ juvenile detention (Jugendstrafe), suspended on probation (auf Bewährung), for intentional homicide (Totschlag). 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 (Ministerium für Staatssicherheit). The guards who had fired at Mr Weylandt were congratulated, decorated with the “Order of Merit of the GDR’s border troops” (Leistungsabzeichen der Grenztruppen der DDR) 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 (Grabkarte). On the basis of the criminal law applicable in the GDR at the material time, the Regional Court first declared the applicant guilty of intentional homicide (Totschlag – Article 113 of the GDR’s Criminal Code – StGB-DDR; see paragraph 25 below); with regard to the question of limitation, the Regional Court referred to the established case-law of the Federal Court of Justice (see Federal Court of Justice, Criminal Cases, decisions published in the Monthly German Law Review – Monatszeitschrift des Deutschen Rechts 1994, p. 704 and in the New Criminal Law Review – Neue Strafrechtszeitschrift 1994, p. 330), and to the Act of 26 March 1993 on the suspension (Ruhen) of limitation in respect of injustices committed under the SED regime, also known as the Limitations Act (Gesetz über das Ruhen der Verjährung bei SED-Unrechtstaten – Verjährungsgesetz; see paragraph 39 below). The Regional Court then applied the criminal law of the FRG, which was more lenient than that of the GDR, and convicted the applicant of intentional homicide (Totschlag – Articles 212 and 213 of the FRG’s Criminal Code – StGB; see paragraph 38 below). The Regional Court also held that the applicant could not justify his conduct by pleading section 17(2) of the GDR’s People’s Police Act (Volkspolizeigesetz – see paragraph 31 below) 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 (see paragraph 28 below). It further held that the applicant could not rely on Article 258 of the GDR’s Criminal Code (see paragraph 30 below). He had, admittedly, acted in accordance with the following order given to border guards at the time: “The unit (der Zug) ... will ensure the security of the GDR’s State border ... its duty is not to permit border crossings (Grenzdurchbrüche), to arrest border violators or to annihilate them (vernichten) and to protect the State border at all costs (unter allen Bedingungen)...”. 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 (Militärstaatsanwalt). 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 (Gebot der Menschlichkeit) 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 (Bundesgerichtshof) 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” (“verstösst offensichtlich und unerträglich gegen elementare Gebote der Gerechtigkeit und gegen völkerrechtlich geschützteMenschenrechte”) 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 (menschenrechtsfreundlich), so that the killing of an unarmed fugitive who merely wanted to swim from one part of Berlin to the other was unlawful (rechtswidrig). 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 (see paragraph 30 below), the equivalent provision to which was Article 5 § 1 of the FRG’s Military Criminal Code (see paragraph 38 below). In conclusion, the Federal Court of Justice held that the decisive factor was that the killing (Tötung) of an unarmed fugitive by sustained fire (Dauerfeuer 19. The applicant then lodged a constitutional appeal with the Federal Constitutional Court (Bundesverfassungsgericht). 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. After hearing submissions from the Federal Ministry of Justice (Bundesministerium für Justiz) and the Administration of Justice Department of the Land of Berlin (Senatsverwaltung für Justiz), 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 [Grenzregime], 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 [mittelbare Täter]. 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 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 by Articles 1 § 1 and 2 § 1 thereof, and to which the legislature must have regard when framing the criminal law... It also underlies Article 103 § 2 of the Basic Law... Article 103 § 2 of the Basic Law secures these aims by allowing conviction only for acts which, at the time when they were committed, were defined by statute with sufficient precision as criminal offences. It further prohibits the imposition of a higher penalty than the one prescribed by law at the time when the offence was committed. In the interests of legal certainty and justice, it provides that in the sphere of the criminal law, which permits extremely serious interference with personal rights by the State, only the legislature may determine what offences shall be punishable. Article 103 § 2 of the Basic Law thus reinforces the rule of law by strictly reserving law-making to Parliament... 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 fulfils 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) Article 103 § 2 of the Basic Law protects against retroactive modification of the assessment of the wrongfulness of an act to the offender’s detriment... Accordingly, it also requires that a statutory ground of justification which could be relied on at the time when an act was committed should continue to be applied even where, by the time criminal proceedings begin, it has been abolished. However, where justifications are concerned, in contrast to the definition of offences and penalties, the strict reservation of Parliament’s law-making prerogative does not apply. In the sphere of the criminal law grounds of justification may also be derived 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. (aa) Article 103 § 2 of the Basic Law contemplates as the normal case that the offence was committed and falls within the scope of the substantive criminal law of the Federal Republic of Germany, as shaped by the Basic Law, and that it is being judged in that context. In this normal case the criminal law, having been enacted in accordance with the precepts of democracy, the separation of powers and respect for fundamental rights, and therefore meeting in principle the requirements of objective justice [materielle Gerechtigkeit], provides the rule-of-law basis [rechstaatliche Anknüpfung] necessary for the absolute, strict protection of trust afforded by Article 103 § 2 of the Basic Law. (bb) This principle no longer applies unrestrictedly in that, as a consequence of reunification, and as agreed in the Unification Treaty, Article 315 of the Introductory Act to the Criminal Code, taken together with Article 2 of that Code, provides that GDR criminal law is to be applied when criminal proceedings are brought in respect of offences committed in the former GDR. That rule is a consequence of the Federal Republic’s assumption of responsibility for the administration of criminal justice in the territory of the GDR; it is accordingly compatible with Article 103 § 2 of the Basic Law, since citizens 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 in force at the time of conviction being applied only if it is more lenient. However, this legal situation, in which the Federal Republic has to exercise its authority in criminal matters on the basis of the law of a State that neither practised democracy and the separation of powers nor respected fundamental rights, may lead to a conflict between the mandatory rule-of-law precepts of the Basic Law and the absolute prohibition of retroactiveness in Article 103 § 2 thereof, which, as has been noted, derives its justification in terms of the rule of law [rechtsstaatliche Rechtfertigung] in the special trust reposed in criminal statutes when these have been enacted by a democratic legislature required to respect fundamental rights. This special basis of trust no longer obtains where the other State 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 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 premisses [rechtsstaatliche Prämissen]. 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. (cc) 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... The Federal Court of Justice pointed out that in such cases the conduct of the offenders was not being judged by criteria which had acquired general validity only later. Nor were the offenders being called upon to answer the charges against them on the basis of criteria not yet valid or no longer valid at the material time. It could not be supposed that the offenders were not already familiar at the material time with the relevant principles, which were indispensable to human coexistence and belonged to the inviolable core of the law... 2. The Federal Constitutional Court has so far had to deal with the problem of ‘statutory injustice’ [gesetzliches Unrecht] only in spheres other than that of the criminal law. It has taken the view that in cases where positive law is intolerably inconsistent with justice the principle of legal certainty may have to yield precedence to that of objective justice. In that connection it has referred to the writings of Gustav Radbruch ... and in particular to what has become known as Radbruch’s formula... On that point it has repeatedly stressed that positive law should be disapplied only in absolutely exceptional cases and that a merely unjust piece of legislation, which is unacceptable on any enlightened view, may nevertheless, because it also remains inherently conducive to order, still acquire legal validity and thus create legal certainty... However, the period of National Socialist rule 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. The decisions challenged meet the constitutional criterion set forth under 1. (a) The Federal Court of Justice has since further developed its case-law when trying cases of so-called Government criminality [Regierungskriminalität] during the SED regime in the GDR... 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 law has to give way to justice. The Federal Court of Justice described the relationship between the criteria which together make up Radbruch’s formula and the human rights protected under international law as being that the criteria of Radbruch’s formula, which were difficult to apply because of their imprecision, had been supplemented by more specific assessment criteria, since the international human-rights covenants 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 [Grundlagenvertrag], which acknowledged that the GDR’s practice at the intra-German border was inhuman, and that the Wall, the barbed wire, the ‘death strip’ [Todesstreifen] 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 and that even democratic States of the Western type, based on the rule of law, have adopted legal provisions which expressly provide for the use of firearms under certain circumstances, particularly in connection with the pursuit and arrest of criminals. Admittedly, the wording of the GDR’s legal provisions, in so far as they regulated the use of firearms at the intra-German border, corresponded to that of the Federal Republic’s provisions on the use of force [unmittelbarer Zwang]. But the findings in the impugned judgments show that, superimposed on those legal provisions, 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 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) Nor can the appellants argue that, having accepted that a justification could be disregarded, the Federal Court of Justice had still not answered the question whether and in what circumstances the act thus held to be unlawful was punishable... To establish punishability there is no need here for recourse to supra-positive legal principles [überpositive Rechtsgrundsätze]. Reference need only be made to the values which the GDR itself took as the basis for its criminal law. 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. The first three appellants object that it was incompatible with Article 103 § 2 of the Basic Law for the Federal Court of Justice, applying the law of the Federal Republic, to find them guilty of intentional homicide as indirect principals. That objection fails. The criminal courts established, on the basis of the provisions in force in the GDR at the material time, that the appellants had rendered themselves liable to punishment through their involvement in the killing of fugitives. The Federal Court of Justice expressly endorsed the Regional Court’s finding that according to those provisions the appellants were guilty of incitement to murder (Articles 2 § 2, sub-paragraph 1 and 112 § 1 of the GDR’s Criminal Code). Only at a second stage did the Federal Court of Justice apply the law of the Federal Republic of Germany, in one case on the basis of Article 315 § 4 of the Introductory Act to the Criminal Code taken together with Article 9 § 1 of the Criminal Code (the place of commission – or place of effect – rule) and in the other cases under Article 315 § 1 of the Introductory Act taken together with Article 2 § 3 of the Criminal Code, the law of the Federal Republic being more lenient than that of the GDR. In neither case were those decisions contrary to Article 103 § 2 of the Basic Law. Regarding the application of the place-of-commission rule, the Chamber [Senat] has already ruled on the issue in its decision of 15 May 1995 and it stands by that decision. In view of its protective purpose, Article 103 § 2 of the Basic Law does not preclude the application of law more lenient than that applicable at the material time. The Federal Court of Justice, in agreement with academic writings ..., took the view that the more lenient law was the law which, on the basis of an overall comparison in the specific individual case, yielded a judgment more favourable to the offender, even if this or that criterion of assessment might appear to be less favourable than criteria laid down by the other law, the decisive factor being the legal consequences of the offence. That conclusion is compatible with the above-mentioned protective purpose of Article 103 § 2 of the Basic Law and cannot be questioned on constitutional grounds.” 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. The Regional Court regarded it as established that the fourth appellant [K.-H. W.] both knew, when firing the fatal shots, that the fugitive was likely to be mortally wounded and willingly accepted that risk. All relevant grounds for excluding guilt were considered on the basis of the case-law of the highest courts and rejected. Criminal responsibility was thus established in a constitutionally unobjectionable manner. That applies also inasmuch as the requirements for acting in obedience to orders (Handeln auf Befehl) were held not to have been satisfied. The fact that the Federal Court of Justice, like the Regional Court, based its examination on Article 5 § 1 of the Military Criminal Code, as interpreted by the highest courts, and treated it as being identical in content with Article 258 of the Criminal Code of the GDR is a matter for the criminal courts since it concerns the interpretation and application of the criminal law. On the basis of their findings of fact, those courts – likewise unobjectionably from a constitutional point of view – assumed that the ground for exempting the appellant from punishment could be excluded only under the second limb of Article 5 § 1 of the Military Criminal Code, because the unlawfulness of the order to use firearms at the border was obvious in the circumstances known to the appellant. According to the settled case-law of the Federal Court of Justice, that condition is satisfied where the breach of criminal law is clear beyond doubt; soldiers are not under any duty to check or make inquiries. 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 (cf. BGHSt 39 at 168 and 188 et seq.). That interpretation satisfies the constitutional criterion of the principle of guilt (Schuldgrundsatz). 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 (Dauerfeuer) 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. The other explanations given by those courts likewise show sufficiently clearly, in the light of all the reasons stated in the judgments and the reference to statements made in the earlier decisions of 3 November 1992 (BGHSt 39 at 1) and 25 March 1993 (BGHSt 39 at 168) concerning cases of the same type, that the principle of guilt has been respected. The length of the sentence likewise stands up to scrutiny from the constitutional point of view. In a manner that was both careful and wholly compatible with the Constitution, the courts below took all relevant points of view into consideration and weighed them against each other in an acceptable manner. The difference in gravity between the wrong done by the first, second and third appellants as givers of orders and that done by the fourth appellant as the recipient of orders was clearly reflected in the length of the sentences imposed. The special political situation prevailing in the former GDR, in particular, was taken into account in mitigation of the sentence imposed on the fourth appellant, whose prison sentence was suspended on probation.” 21. The Unification Treaty (Einigungsvertrag) of 31 August 1990, taken together with the Unification Treaty Act (Einigungsvertragsgesetz) of 23 September 1990, provides, in the transitional provisions of the Criminal Code (sections 315 to 315(c) of the Introductory Act to the Criminal Code (Einführungsgesetz in das Strafgesetzbuch)), that the applicable law is in principle the law of the place where an offence was committed (Tatortrecht). 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. Pursuant to Article 2 § 3 of the Criminal Code, the law of the FRG is applicable only if it is more lenient than GDR law. 22. The relevant provisions of the Constitution were the following: “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.” “Respect for and protection of the dignity and liberty of the person (Persönlichkeit) are required of all State bodies, all forces in society and every citizen.” “(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).” “The Council of State shall lay down the principles to be followed in matters of national defence and security. It shall organise the defence of the State with the assistance of the National Defence Council.” “Legal rules shall not contradict the Constitution” 23. The first chapter of the Special Part (Besonderer Teil) of the Criminal Code, entitled “Crimes against the national sovereignty of the German Democratic Republic, peace, humanity and human rights”, included the following introduction: “The merciless punishment of crimes against the national sovereignty of the German Democratic Republic, peace, humanity and human rights, and of war crimes, is an indispensable prerequisite for stable peace in the world, for the restoration of faith in fundamental human rights (Wiederherstellung des Glaubens an grundlegende Menschenrechte) and the dignity and worth of human beings, and for the preservation of the rights of all.” 24. Article 95 of the 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 (kann sich nicht berufen auf) statute law, an order or written instructions in justification; he shall be held criminally responsible.” 25. Article 113 § 1 of the Criminal Code prescribed a maximum sentence of ten years’ imprisonment for intentional homicide (Totschlag). Pursuant to Article 82 § 1 (4) of the Criminal Code, the limitation period for prosecution in respect of offences attracting a maximum penalty of ten years’ imprisonment was 15 years. 26. Article 84 of the Criminal Code provided: “Crimes against peace, humanity or human rights, and war crimes shall not be subject to the rules on limitation set out in this law [laying down the limitation periods for the various categories of offences].” 27. Article 119 of the Criminal Code was worded as follows: “Any person present at the scene of an accident or a situation in which human life or health are endangered who fails to lend necessary assistance within his capacity to provide, although able to do so without any real danger to his own life or health and without breaching other important obligations, must give a satisfactory account of his conduct to a social organ of justice (gesellschaftliches Organ der Rechtspflege) or shall be punished by a public reprimand, a fine, a suspended sentence or a term of imprisonment of up to two years.” 28. Article 213 of the Criminal Code (1968 version) provided: “(1) Any person who enters or resides in the territory of the German Democratic Republic unlawfully, or contravenes the statutory provisions or restrictions on entry or exit, through-routes, time-limits or residence ... or leaves the territory of the German Democratic Republic ... without the State’s authorisation shall be punished by a custodial sentence of up to two years, a suspended sentence with probation, imprisonment, a fine or a public reprimand. ... (2) In serious cases the offender shall be sentenced to one to five years’ imprisonment. Cases are to be considered serious in particular where 1. the offence (die Tat) is committed by causing damage to border security installations, through the use of specialised tools or equipment, with weapons or by dangerous means or methods; 2. the offence is committed through the fraudulent use or falsification of identity papers, border-crossing documents (Grenzübertrittdokumente) or other similar documents, or through the use of a hiding-place (Versteck); 3. the offence is committed by a group; 4. the offender has committed the offence more than once or has previously attempted to commit the offence inside the border-zone or has previously been convicted of illegally crossing the border. (3) Preparations and attempts shall be criminal offences.” 29. Article 1 § 3 of the second chapter of the Criminal Code, which defined the term “serious crime” (Verbrechen), was worded as follows: “Serious crimes are attacks dangerous to society (gesellschaftsgefährliche Angriffe) against the sovereignty of the German Democratic Republic, peace, humanity or human rights, war crimes, offences against the German Democratic Republic and deliberately committed life-endangering criminal acts (vorsätzlich begangene Straftaten gegen das Leben). Likewise considered serious crimes are other offences dangerous to society which are deliberately committed against the rights and interests of citizens, socialist property and other rights and interests of society, which constitute serious violations of socialist legality and which, on that account, are punishable by at least two years’ imprisonment or in respect of which, within the limits of the applicable penalties, a sentence of over two years’ imprisonment has been imposed.” 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.” 31. Section 17 of the People’s Police Act, which came into force on 11 June 1968, provided: “(2) The use of firearms is justified (a) to prevent the imminent commission or continuation of an offence (Straftat) which appears, according to the circumstances, to constitute – a serious crime (Verbrechen) against the sovereignty of the German Democratic Republic, peace, humanity or human rights – a serious crime against the German Democratic Republic – a serious crime against the person (Persönlichkeit) – a serious crime against public safety or the State order – any other serious crime, especially one committed through the use of firearms or explosives; (b) to prevent the flight or effect the rearrest (Wiederergreifung) of persons – who are strongly suspected of having committed a serious crime or who have been arrested or imprisoned for committing a serious crime – who are strongly suspected of having committed a lesser offence (Vergehen), or who have been arrested, taken into custody or sentenced to prison for committing an offence, where there is evidence that they intend to use firearms or explosives, or to make their escape by some other violent means or by assaulting the persons charged with their arrest, imprisonment, custody or supervision, or to make their escape jointly with others – who have received a custodial sentence and been incarcerated in a high-security or ordinary prison; (c) against persons who attempt by violent means to effect or assist in the release of persons arrested, taken into custody or sentenced to imprisonment for the commission of a serious crime or lesser offence. (3) The use of firearms must be preceded by a shouted warning (Zuruf) or warning shot (Warnschuss), save where imminent danger may be prevented or eliminated only through targetted use of the firearm. (4) When firearms are used, human life should be preserved wherever possible. Wounded persons must be given first aid, subject to the necessary security measures being taken, as soon as implementation of the police operation permits. (5) Firearms must not be used against persons who appear, from their outward aspect, to be children, or when third parties might be endangered. If possible, firearms should not be used against juveniles (Jugendliche) or female persons. ...” Under section 20(3) of the Act, these provisions were also applicable to members of the National People’s Army. 32. Section 27 of the State Borders Act, which came into force on 1 May 1982, and which replaced the People’s Police Act 1968, provided: “(1) The use of firearms is the most extreme measure entailing the use of force against the person. Firearms may be used only where resort to physical force (körperliche Einwirkung), with or without the use of mechanical aids, has been unsuccessful or holds out no prospect of success. The use of firearms against persons is permitted only where shots aimed at objects or animals have not produced the result desired. (2) The use of firearms is justified to prevent the imminent commission or continuation of an offence (Straftat) which appears in the circumstances to constitute a serious crime (Verbrechen). It is also justified in order to arrest a person strongly suspected of having committed a serious crime. (3) The use of firearms must in principle be preceded by a shouted warning or warning shot, save where imminent danger may be prevented or eliminated only through targetted use of the firearm. (4) Firearms must not be used when the life or health of third parties may be endangered; the persons appear, from their outward aspect, to be children; or the shots would impinge on the sovereign territory of a neighbouring State. If possible, firearms should not be used against juveniles (Jugendliche) or female persons. (5) When firearms are used, human life should be preserved where possible. Wounded persons must be given first aid, subject to the necessary security measures being taken.” 33. Under the legal provisions on the issue of passports and visas in the GDR (the Passport Act – Passgesetz – of 1963 and the Passport Act and Order on Passports and Visas of 28 June 1979, as supplemented by the Order of 15 February 1982 – Passgesetz und Pass- und Visaanordnung vom 28. Juni 1979, ergänzt durch die Anordnung vom 15. Februar 1982), it was impossible until 1 January 1989, for persons who enjoyed no political privileges, had not reached retirement age or had not been exempted on account of certain types of urgent family business, to leave the GDR legally. Under Article 17 of the Order of 28 June 1979, no reasons had to be given before 1 January 1989 for decisions on applications for permission to leave, and no appeal lay against such decisions until the Order on Visas of 30 November 1988 was promulgated. 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: “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. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.” “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 (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant.” 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 fulfil their obligations, expressed criticisms of the border-policing regime set up in the GDR. The summary records of the 533rd and 534th meetings of the Human Rights Committee refer to the following comments, among other criticisms. On 19 July 1984 Sir Vincent Evans, the British member of the Committee, 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.” Sir Vincent also said “that ... he was not convinced that the German Democratic Republic was really complying with the provisions of Article 12 of the Covenant. Everyone had the basic freedom to leave his own country; some restrictions were permitted by Article 12 § 3, but on three grounds only. The basic principle which determined whether or not persons might leave the German Democratic Republic was consistency with the rights and interests of that country; that seemed unduly broad when compared with the provisions of Article 12 § 3 of the Covenant.” On the same day Mr Birame Ndiaye, the Senegalese member of the Committee, said “that ... it seemed that the Government of the German Democratic Republic envisaged the possibility of restricting freedom of movement on grounds other than those provided for in Article 12 of the Covenant.” 36. By Resolution 1503, adopted in 1970, the United Nations Economic and Social Council put in place a procedure under which individuals could refer complaints to the Commission on Human Rights, which was charged with investigating whether these complaints revealed the existence of a “consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms”. On account of its restrictive policy on the freedom of movement, the GDR was repeatedly criticised 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. 37. Article 103 § 2 of the Basic Law (Grundgesetz) provides: “An act shall not be punishable unless it has been so defined by law before it was committed.” 38. Article 212 of the FRG’s Criminal Code prescribes a prison sentence of from five years to life, in particularly serious cases, for intentional homicide (Totschlag). Article 213 prescribes a prison sentence of under ten years in a less serious case of intentional homicide (minderschwerer Fall des Totschlags). Article 5 of the Military Criminal Code (Wehrstrafgesetz – WStG) provides: “1. Where, in executing an order, a subordinate commits an unlawful act which constitutes a criminal offence, his guilt shall not be established unless he understands (erkennt) that the act is unlawful or unless that is obvious in the circumstances of which he is aware. 2. Where the subordinate’s guilt is slight, regard being had to the special situation he found himself in when executing the order, the court may reduce his sentence in accordance with Article 49 § 1 of the Criminal Code, or even order his discharge in the case of a minor offence.” 39. Section 1 of the Act of 26 March 1993 on the suspension (Ruhen) of limitation in respect of injustices committed under the SED regime, also known as the Limitations Act (Gesetz über das Ruhen der Verjährung bei SED-Unrechtstaten – Verjährungsgesetz), provides: “For calculation of the limitation period for the prosecution of acts committed under the unjust regime of the Socialist Unity Party but in respect of which no prosecution was brought, by the express or implied will of the State or Party leadership of the former German Democratic Republic, for political reasons or reasons incompatible with the essential principles of a liberal order governed by the rule of law (freiheitliche rechtsstaatliche Ordnung), the period between 11 October 1949 and 2 October 1990 shall not be taken into account. During that period limitation was suspended.” 40. The instrument of ratification of the Convention deposited by the German Government on 13 November 1952 included a reservation and a declaration worded as follows: “In conformity with Article 64 of the Convention [Article 57 since the entry into force of Protocol No 11], the German Federal Republic makes the reservation that it will only apply the provisions of Article 7 paragraph 2 of the Convention within the limits of Article 103 paragraph 2 of the Basic Law of the German Federal Republic. This provides that any act is only punishable if it was so by law before the offence was committed. The territory to which the Convention shall apply extends also to Western Berlin.”