Unsuccessful constitutional complaints lodged by former members of the National Defence Council of the GDR and by an East German border guard who shot at a person against convictions in criminal proceedings

Press Release No. 69/1996 of 12 November 1996

Order of 24 October 1996
2 BvR 1851/94, 2 BvR 1852/94, 2 BvR 1875/94, 2 BvR 1853/94

The Second Senate of the Federal Constitutional Court unanimously rejected the constitutional complaints lodged by three former members of the National Defence Council of the German Democratic Republic, Albrecht, Keßler and Streletz, as well as the constitutional complaint lodged by an East German border guard who shot at a person. The complainants challenged their convictions in criminal proceedings dealing with the killing of GDR fugitives at the inner German border. The judgments of the Berlin Regional Court (Landgericht) and of the Federal Court of Justice (Bundesgerichtshof) are not objectionable under constitutional law. They do not violate the complainants’ fundamental rights or any guarantees equivalent to fundamental rights.

 [Excerpt from Press Release No. 66/96 of 8 November 1996]
In essence, the proceedings concern the following question of constitutional law:
In its findings of fact, the Federal Court of Justice stated that, pursuant to the provisions on the border regime as interpreted and applied in GDR state practice at the relevant time, the killing of GDR fugitives was justified and therefore not a punishable act. According to the Federal Court of Justice, this does not, however, provide a valid justification because it amounts to a manifest and severe violation of fundamental principles of justice and of human rights universally recognised in international covenants (life, freedom of movement). The Federal Court of Justice further held that the relevant provisions on border security must instead be interpreted in a way that is open to human rights. According to the Court, such an interpretation was also possible in the GDR, even at the relevant time. According to such an interpretation, the complainants’ conduct was not justified and therefore amounts to punishable acts.
From the perspective of constitutional law, the problem lies in whether the criminal conviction of the complainants is compatible with the prohibition of retroactivity in Art 103(2) of the Basic Law (Grundgesetz – GG) […].
[End of excerpt]

I.

The prohibition of retroactivity in Art. 103(2) GG is not violated by the fact that the criminal courts deny the complainants a justification that followed from the GDR’s provisions on the border regime, as interpreted and applied in state practice.

 1. The prohibition of retroactivity is absolute and performs its function of guaranteeing fundamental rights and the rule of law through strict formalisation.

Pursuant to Art. 103(2) GG, an act may only be punished if the law criminalises such an act in a sufficiently specific manner at the relevant time. The provision further protects against the imposition of a higher penalty than the one set out by statute at the relevant time. For citizens, the prohibition of retroactivity that is guaranteed under constitutional law establishes a legitimate expectation that the state will prosecute only conduct for which the legislator has statutorily set out at the relevant time both that it is punishable and what the penalty will be. Citizens can thus take responsibility and guide their conduct in such a way as to avoid punishment.

Art. 103(2) GG further prohibits any subsequent alteration to the assessment as to the wrongfulness of an act that would be to the offender’s detriment. Accordingly, it also requires that a justification set out in legislation at the relevant time continues to be applied even if that justification is no longer effective at the time of the criminal proceedings.

However, Art. 103(2) GG reflects that, ordinarily, an act is committed and adjudicated within the scope of application of the substantive criminal law of the Federal Republic of Germany, which is shaped by the Basic Law. In such an ordinary case, criminal law, which is adopted by a legislature bound by the fundamental rights, provides the basis for the absolute and strict protection of legitimate expectations afforded by Art. 103(2) GG. This does not apply unrestrictedly where, as a consequence of reunification, statutory law prescribes that the criminal law of the GDR is to be applied when adjudicating acts committed in the former GDR. This special protection of legitimate expectations does not apply where the other state relies on justifications to exclude punishment for the gravest criminal wrongs by going beyond the written norms to demand and facilitate that individuals commit such wrongs, thereby gravely disregarding human rights universally recognised in the international legal community. The strict protection of legitimate expectations by Art. 103(2) GG must then stand back. Citizens of what formerly was another state, who are now subject to the penal authority of the Federal Republic of Germany, cannot rely on such a justification. Beyond this, the legitimate expectation to be punished according to the law in force at the relevant time continues to be guaranteed.

 2. The challenged decisions satisfy these constitutional standards.

The key considerations at the basis of the Federal Court of Justice’s decision are as follows: A justification is of no consequence where it extends to the intentional killing of persons who merely wanted to cross the inner German border unarmed and without endangering universally recognised legal interests. A justification that simply affords primacy to the implementation of the prohibition on crossing the border over the individual’s right to life is void because it manifestly and intolerably violates human rights protected under international law. The violation carries such weight as to violate legal beliefs common to all peoples that relate to the value and dignity of human beings. In such a case, positive law has to make way for justice. This assessment made by the Federal Court of Justice is in line with the Basic Law and can also be supported by the Federal Constitutional Court’s judgment of 31 July 1973 on the Basic Treaty (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 36, 1 et seq.). The judgment stated that the GDR’s practice at the inner German border was inhumane, and that the Wall, barbed wire, death strip and shoot-to-kill order were incompatible with the treaty obligations taken on by the GDR. The complainants cannot successfully raise the objection that the International Covenant on Civil and Political Rights does not guarantee the right to life and the right to freedom of movement without any express limitation; they argue that even Western-style democratic states under the rule of law permit the use of firearms, particularly in connection with the pursuit and arrest of criminal offenders. It is true that the wording of the GDR’s statutory provisions concerning the use of firearms at the inner German border correspond to that of the FRG’s regulations on the use of direct force. However, the Berlin Regional Court and the Federal Court of Justice found that in the GDR, orders given took precedence over laws. There was no option to limit the use of firearms, which would have been required according to the principle of proportionality. Members of the border troops on the spot had been told by their superiors that “border violators” were to be “eliminated” in cases where they could not be prevented from crossing the border by any other means. Substantively, subordinating the individual’s right to life to the interests of the state amounted to the gravest wrong. Furthermore, the complainants Albrecht, Keßler and Streletz raised the objection that they had ultimately been sentenced as joint offenders for the crime of murder (Totschlag) under the law of the FRG; this objection fails. According to the courts’ findings, which are not objectionable under constitutional law, this law is less harsh than GDR law, which would have to be applied otherwise and which would regard the act as incitement to murder under specific aggravating circumstances (Anstiftung zum Mord).Art. 103(2) GG does not rule out the application of a law that is less harsh than the one applicable at the relevant time.

II. 

For the rest, there are no constitutional objections in relation to the convictions either.

1.         The Senate sets out in detail that no violation of constitutional law can be identified with regard to sentencing, the considerations as to the establishment of criminal responsibility and the assessment of the evidence underlying the decisions.
2.         Moreover, the conviction of the border guard who shot at a person does not violate the principle, which follows from the Basic Law, that no criminal punishment may be imposed in the absence of culpability. The criminal courts also assumed, in a manner that is unobjectionable under constitutional law, that the justification of “acting on orders” was not available, since the unlawfulness of the order to use firearms at the border was obvious under the circumstances known to the complainant. The courts did not discuss whether any doubt as to the recognisability of the breach of criminal law might arise from the fact that the GDR state leadership used its authority to expand on the justification the complainants relied on and conveyed the expanded meaning to the soldier. In such a case, however, it cannot be taken for granted that the average soldier could be certain beyond doubt as to the proper boundary of punishable conduct. Under the principle of culpability it would be untenable to use solely the – objective – presence of a severe violation of human rights to establish that such a breach of the boundaries was obvious to soldiers. In that case, it would have to be shown in more detail why the individual soldier, considering their education, indoctrination and other circumstances, was in a position to recognise the breach of criminal law beyond doubt. The courts did however show that, in the circumstances that had been ascertained, the killing of an unarmed fugitive by continuous fire was such a dreadful act beyond any possible justification that the violation of proportionality and of the fundamental ban on killing must have been immediately perceptible and thus obvious even to an indoctrinated person. For the rest, the criminal courts’ decisions show with sufficient clarity – given the overall context of the decisions’ reasoning and the reference they make to previous decisions – that the principle of culpability has been satisfied.