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3 November 1992, case no. 5 StR 370/92, BGHSt 39, 1

Bundesgerichtshof, Fifth Criminal Senate, Judgment of 3 November 1992, case no. 5 StR 370/92, BGHSt 39, 1

The following has been reproduced from: Raymond Youngs, Sourcebook on  German Law, Cavendish 1994, with kind permission by the author.
Please note: as the Sourcebook includes both the German original and the English translation next to each other, Raymond Youngs has translated into English the names of all statutes, courts, and titles of works cited. Please consult the book from which this translation has been reproduced if you wish to look up any of the references given in this judgment.

The shootings at the Berlin wall case

Note:
The theme which runs through this case is the issue of whether the criminal law applicable in the German Democratic Republic (GDR) at the time these shootings took place was, in its application to the crime which those shootings constituted, more or less severe than the equivalent law in the Federal Republic. The Federal High Court came to the conclusion that it was more severe in every respect; this therefore justified the conviction of the defendants under the Criminal Law Code of the Federal Republic, in the light of the wording of § 2 III of that Code. The difficulty about reaching this conclusion was that if the instructions which the border guards were obeying when they fired constituted any sort of legal justification for what they did, the Federal High Court would have had to come to the conclusion that the law of the GDR was less severe. However, the Federal High Court considered that the defence of act of State did not apply; and although they disagreed with the opinion of the court of first instance that the defendants were not acting in accordance with the internal law of the GDR, they considered that such law (insofar as it justified the shooting) was so wrong as to be invalid law. International law, as it should have been applied in the GDR, was cited to support this conclusion. This same search for the system of law which had more lenient consequences for the defendants was then applied to other aspects of the case.

Reasons:

A. The Young Persons Chamber convicted the accused W. (born on 11 April 1964) and H (born on 16 July 1961) of homicide and sentenced the accused W. to a borstal sentence of one year and six months and the accused H to a prison sentence of one year and nine months; it suspended the execution of both sentences.

The defendants, as members of the border troops of the GDR – W as non-commissioned officer and as leader of a post consisting of two persons, and H as a soldier – were stationed at the Berlin wall. There, on 1 December 1984, at 3.15 hours, they fired at S. who was 20 years old and came from the GDR. He was preparing to climb over the wall, from the city district of Pankow in the direction of the district of Wedding. S. while he was climbing up a ladder leaning against the wall, was hit by bullets from the automatic infantry rifles of the defendants. A bullet from the weapon of the defendant W. penetrated his back, when he had already laid one hand on the top of the wall; this injury was fatal. S. was also hit in the knee by a bullet from the weapon of the defendant H.; this injury had no connection with his death. The time sequence of the two gunshot wounds has not been established. S. was not brought into the People’s Police Hospital until shortly before 5.30 hours, where he died at 6.20 hours. He would have been saved by immediate assistance from a doctor. The delay was the consequence of rules as to secrecy and competence, which were not known to the defendants. The defendants were not employed in the recovery and removal of the victim.

For the shots which hit S. the rifles of both defendants were adjusted to “continuous firing”. The defendant H fired 25 rounds altogether in the five seconds during which S. climbed up the ladder; from the rifle of the defendant W. 27 rounds were fired. The defendant W. who had previously shouted to S. to stay still, and had given warning shots, fired at S. from a distance of 150 m., from the watch tower. The defendant H who, on the appearance of the fugitive, had left the tower at the direction of the defendant W. fired, leaning against the wall, from a distance of about 110 m. Neither of the defendants intended to kill S. whom they did not consider to be a spy, saboteur or “criminal”. But they recognised the possibility of a fatal hit. “Even at this price, however, they intended to prevent the success of the flight, in accordance with the command, which they considered to be binding. In order to secure in any event the carrying out of the command, which even included the conscious killing of the fugitive so as to frustrate the flight, they fired – omitting as a first stage the prescribed aimed individual shots – in short bursts of continuous fire. They knew that this increased the probability of a hit, even if not in the area aimed at, and with that also the risk of a fatal shot.”

The defendants were asked before the start of their service at the border whether they were prepared to use weapons against “border violators”; they answered the question in the affirmative without inward reservations. §§ 26 and 27 of the Border Act of 25 March 1982 (LG GDR I 197) had been discussed during their training. According to § 27 para. 2 sentence 1 of this Act, the use of the gun was “justified in order to prevent the immediately impending execution or continuation of a punishable act, which in the circumstances presents itself as a crime”. The Young Persons Chamber accepted as true that contraventions of § 213 of the CLC-GDR (“unlawful crossing of the border”) in direct contact with the Berlin wall at the time of the act were in most cases assessed to be a crime in accordance with § 213 para. 3 of the CLC-GDR and were punished with more than two years imprisonment; the judge of fact considers it to be possible that in the training of the defendants the provisions of § 213 of the CLC-GDR, whose basic elements constituted an offence, were discussed without differentiating according to the seriousness of the act and therefore the attempted flight at the wall was generally described as a crime.

As to the total context of the command, it says in the reasons for the judgment: “The total context of the command which was authoritative for the defendants as well and was so understood and accepted by them, was to the effect that the reaching of “enemy territory” (here: West Berlin) by the fugitive was to be prevented in every case and, in the end, by all methods. Accordingly one of the formulations used, to the defendants as well, at the “gatherings”1 , stated in its key sentence: “Border escapes are not to be permitted in any case. Border violators are to be arrested or destroyed”… Before every move out to border service, the “gathering” took place; by it, once again, the specific action and, in general form, the duty imposed were made known to the border guards”. The total context of the command, as dealt with in training, provided for the following scheme of action, under which at any time the next action stage was to be proceeded to if the previous one showed no result or showed itself from the outset not to promise results: calling to the fugitive – attempt by the guard to reach the fugitive on foot -warning shot – aimed single shots, several times if necessary, at the legs – “further shooting, no matter how, if necessary also shooting to kill, until the flight has been prevented”. The rule of thumb was: “Better that the fugitive should be dead than that the flight should succeed”.

The Young Persons Chamber accepts that the defendants committed joint homicide with a conditional intention. It applies §§ 212 and 213 of the CLC as the more lenient law as against the criminal law of the GDR (Art. 315 para. 1 IACLC in association with § 2 para. 3 of the CLC). According to their view, the border regime determined by § 27 of the Border Act in association with § 213 para. 3 of the CLC-GDR on the demarcation line was not reconcilable with the international law duties of the GDR and with the public order of the Federal Republic of Germany. It does not however follow from this according to the view of the Young Persons Chamber that the ground of justification provided for in the law of the GDR can remain out of consideration to the disadvantage of the defendants. The Young Persons Chamber refers in this respect to Art. 103 para. 2 of the BL as well as to the viewpoint of legal certainty; legal certainty would have priority here, because an extreme case, such as perhaps arose for decision in FHCCr 2, 234, would not have been present.

The Young Persons Chamber however further states: even if a ground of justification under the law of the GDR comes into consideration in accordance with the above, it would nevertheless not be applicable to the shots of the defendants because of the special circumstances of the act. As follows from the layout of §§ 26 and 27 of the Border Act, these provisions, like the provisions of the AFA about the use of firearms, are orientated by the principle of proportionality; § 27 para. 1 sentence 1 describes the use of firearms as “the most extreme measure of the application of force”. An interpretation of the ground of justification which has regard to the viewpoint of proportionality would result here in the continuous fire given by the defendants not being covered by § 27 of the Border Act and only the single shots having been permitted; the requirement of § 27 para. 5 of the Border Act that human life is to be spared if possible also argues in favour of this. Admittedly the defendants aimed at the legs. They were however aware that with continuous fire in short bursts, the weapon “wanders” after the first shot.

The conduct of the defendants was not, according to the view of the State Court, excused by official command (§ 5 MCA; § 258 CLC-GDR). Single shots at the legs were prescribed in this factual situation; the defendants in their haste for obedience, went beyond this command, so as to increase the chance, by continuous fire, of hitting the fugitive and therefore preventing the crossing of the border. “The fact that the defendants at the same time believed that this procedure was covered by the command to arrest the border violator in every case and even, as a final method, to destroy (i.e. kill) him cannot exonerate them, because the carrying out of the command to shoot a fugitive dead if necessary … obviously violates the criminal law, namely the prohibition on homicide in § 112 and 113 of the CLC-GDR”. The disproportionate relationship of the economic and politic interest of the GDR in the prevention of the uncontrolled emigration of its citizens as compared with the legal value of life was obvious; ignorance of the law was also, by § 258 of the CLC-GDR, not privileged. Therefore an error of law (§ 17 of the CLC) was avoidable.

The Young Persons Chamber accepted in the assessment of punishment, in relation to the defendant W. as well, that the prerequisites of § 213 of the CLC (less serious case of manslaughter) were present.

B. The appeal in law of the defendant W. raises the objection that the State Court violated a “prohibition on punishment” which is to be derived from the “act of State doctrine”; the defendant had namely acted as an office holder on behalf of and in the interest of another State, the GDR, and therefore could not be held responsible. An obstacle to the proceedings was obviously thereby being claimed. It fails.

I. The “act of State doctrine2 “, formulated in different ways in States in the Anglo-Saxon legal circle is not a general rule of international law in the sense of Art. 25 of the BL. Rather does it affect the interpretation of internal national law, that is to say the question of whether and in what degree one should proceed on the basis of the effectiveness of acts of foreign states (Ipsen, International Law 3rd ed., p. 335, 619; Verdross/Simma, Universal International Law, 3rd ed. p. 775; Dahm/ Delbrück/ Wolfrum, International Law, 2nd ed., p. 487; Kimminich, International Law, 4th ed., p. 316). The continental European and also the German legal practice does not refer to this doctrine (Dahm/Delbrück/Wolfrum loc. cit. p. 490 and onwards). Here there is no binding rule that the effectiveness of foreign sovereign acts is withdrawn from judicial examination by the application of internal national law (compare, for the area of criminal law, in particular M. Herdegen JFPIL 47 (1987), 221 and onwards). In the Unification Treaty it was not agreed that acts which are to be associated with the State activity of the GDR should be withdrawn from examination by the courts of the Federal Republic of Germany. The opposite is true: in Arts. 18 and 19 of the Unification Treaty it is provided that decisions of the courts and of the administration of the GDR remain effective in principle but can be annulled if they are not reconcilable with the principles of a constitutional State (compare also Appendix I to the Unification Treaty, Chapter III, Subject Area A, Section III no. 14 d).

II. Possibly the appeal in law means by its objection that courts of the Federal Republic of Germany should not be permitted to exercise jurisdiction having regard to the immunity of foreign states and their representatives; the appeal in law refers to a decision of the VIth Civil Senate of the Federal High Court (NLWJ 1979, 1101) made on questions of immunity, as well as to the decision FHCCr 33, 97 by which the President of the Council of State of the GDR was granted the immunity due to a head of State in the year 1984. The defendants are not on that account to be treated as representatives of a foreign State, because the GDR no longer exists.

C. The factual and legal examination shows that the appeals in law of the defendants are, in their outcome, unfounded.

I. The lives of defendants and the victim were based in the GDR at the time of the deed; there the victim was hit by the defendants shots and died. The State Court applied Art. 315 para. 1 of the IACLC (in the version contained in the Unification Treaty, App. I Chap. III, Subject Area C, Sect. II no. 1 b) and determined whether the law of the Federal Republic of Germany or the law of the GDR was more lenient in the sense of § 2 para. 3 of the CLC. This starting point corresponds with the consistent case law of the Federal High Court (compare FHCCr 37, 320; 38, 1, 3; 38, 18; 38, 88; FHCCLCr CLC § 2 para. 3 GDR-CLC 5).

The position would be different if the deed were to be judged before 3 October 1990 according to the law of the Federal Republic of Germany (Art. 315 para. 4 of the IACLC in the version contained in the Unification Treaty).

1. The Senate examined the question of whether the principles developed in FHCCr 32, 293 in the year 1984 are to be applied with the result that even before the unification of Germany, deeds of the kind being spoken of here were to be judged in accordance with the criminal law of the Federal Republic of Germany (compare Laufhütte in LK 11th ed. before § 80 marginal no. 35). It answered the question in the negative.

The third Criminal Senate had explained in the decision FHCCr 32, 293 in connection with its decision FHCCr 30, 1 that the criminal law of the Federal Republic of Germany would apply to a deprivation of freedom in respect of natives in the former GDR brought about through political suspicion, and this was for the following reasons: the criminal law of the Federal Republic of Germany since the Fundamental Principles Treaty of 21 December 1972 (FLG 1973 II 421) at the latest no longer protects all Germans living in the GDR in the sense that the acts committed against them on the territory of the GDR are, simply for this reason, to be judged in accordance with § 7 para. 1 of the CLC and therefore in accordance with the criminal law of the Federal Republic of Germany. The position would however be different for acts in which the danger of persecution contrary to the principle of a constitutional State and connected with political suspicion or deportation turns into a violation, especially a deprivation of freedom; the comprehensive protection granted in § 5 no. 6 of the CLC (FHCCr 30, 1) could, in accordance with the purpose of this provision, not remain limited to punishment for the elements of the criminal offence of endangering3.

In the present case, the rules in § 5 of the CLC are not involved; a connection with the provisions of § 5 no. 6 of the CLC is, in contrast to the cases FHCCr 30, 1; 32, 293, not possible. No criminal offence of endangering preceded the shots at the wall. S. became, just like the victims of the criminal acts described in §§ 234a and 241a of the CLC, the victim of a political system disregarding rights of freedom. This point of view is, however, not by itself definite enough in order to describe the act committed against him sufficiently clearly with regard to the law as to application of the law (§§ 3 to 7 of the CLC) and to differentiate it from other acts committed in the GDR for which the provisions of § 7 para. 1 of the CLC did not apply.

Besides this there is the following consideration: the legislator evidently knew the state of opinion in relation to the application of §§ 3 to 7 of the CLC to GDR cases, especially the case law of the Federal High Court (FHCCr 30, 1; 32, 293) when he intervened by the Unification Treaty in the system of law as to the application of the law with the new form of Art. 315 of the IACLC. If the case law which only relates to acts which were committed before the coming into effect of the Unification Treaty were to be substantially changed at the present point in time, the new form of Art. 315 of the IACLC would be given a content with which the legislator did not reckon. Under these circumstances, the area of application of Art. 315 para. 4 of the IACLC is not to be judged otherwise than as would correspond with the established position of the case law hitherto.

2. On the same grounds, the Senate does not follow the far-reaching proposition propounded again recently that Germans whose lives were centred in the GDR are to be understood without exception as being Germans in the sense § 7 para. 1 of the CLC (Küpper/Wilms JLP 1992, 91; Bath, Archives of Germany, 1990, 1773; JG 1992, 665 – similar in its outcome; from the period before 1989, compare Oehler JG 1984, 948; Woesner JLP 1976, 248 as well as USC Düsseldorf NLWJ 1979, 59; 1983, 1277). The fact that the Unification Treaty was not based on this interpretation follows from the observation that only a very small area of application (acts without individual victims, as well as acts against foreigners) is left for the provisions of Art. 315 para. 1 of the IACLC if all acts which were directed against GDR citizens fell within Art. 315 para. 4 of the IACLC; however, as the totality of the rules contained in Arts. 315 to 315 c of the IACLC in the form contained in the Unification Treaty shows, the legislator has evidently proceeded on the basis that the area of application of GDR law would be broad – certainly as measured by § 2 para. 3 of the CLC.

II. The law of the former GDR would, in the sense of § 2 para. 3 of the CLC (in association with Art. 315 para. 1 of the IACLC in the form contained in the Unification Treaty), be, in comparison with the law of the Federal Republic of Germany, the more lenient law if the fatal use of firearms which was the subject of the judgment had been justified in accordance with the law of the GDR (§ 27 para. 2 of the Border Act in association with § 213 para. 3 of the CLC-GDR), and this ground of justification had to be taken into consideration even today in favour of the defendants. The examination shows that the defendants – according to the interpretation employed in the GDR at the time of the act -complied with the requirements described in § 27 para. 2 of the Border Act, but that no effective ground of justification follows from this.

1. The border troops of the GDR had, in accordance with § 18 para. 2 of the Border Act of 25 March 1982, (LG GDR I 197) to “guarantee” the “inviolability” of the border; the unlawful crossing of the border, amongst other things, counted as a violation (§ 17 sentence 2 letter b of the Border Act).

According to § 27 para. 2 sentence 1 of the Border Act the use of firearms was “justified, in order to prevent the immediately impending carrying out or continuation of a criminal act, which according to the circumstances presents itself as a crime”. In § 27 para. 5 sentence 1 of the Act, it says that on the use of firearms lives of persons are “to be spared as far as possible”. According to § 1 para. 3 sentence 2 of the CLC GDR, amongst other things, criminal acts “dangerous to society” against “rights and interests of society” which “represent a grave disregard of socialist legality and … for which, within the penal framework provided for, a sentence of imprisonment of over two years is imposed in the individual case” were to be understood as crimes. The unlawful crossing of the border was, in serious cases, threatened with such a penalty, namely a sentence of imprisonment of from one year to eight years (§ 213 para. 3 of the CLC-GDR in the form contained in the third CLAA of 28 June 1979, LG GDR I 139). A serious case in accordance with § 213 para. 3 sentence 2 no. 2 of the CLC-GDR existed “in particular” if the act was carried out by “dangerous means or methods”. The judge of fact assumed that the practice of the GDR at the time of the act regarded “flight to the Republic” in direct contact with the border in most cases as a crime and punished it with sentences of imprisonment of more than two years. It corresponds with this that the Upper Court of the GDR and the general public prosecutor of the GDR on 15 January 1988 stated in their “Common Standpoint on the Application of § 213 of the CLC” that a dangerous method in the sense of § 213 para. 3 sentence 2 no. 2 of the CLC included, amongst other things, the use of “climbing aids for surmounting the border security installations” (SC Information 2/1988 p. 9 and 14); a “Common Standpoint” of the Upper Court and the general public prosecutor with corresponding content had been formulated as early as 17 October 1980 (SC Information – Separate Impression, 1980, p. 3).

According to the commentary on the Criminal Law Code published by the Ministry of Justice and the Academy for Political and Legal Science of the GDR (Criminal Law of the German Democratic Republic, 5th ed. 1987 – from now on referred to as the “GDR Commentary” – § 213 note 16), the conduct of the victim also fell within § 213 para. 3 sentence 2 no. 5 of the CLC-GDR: S. had acted jointly with another up to the climbing of the first border wall; his retreat from the attempted unlawful crossing of the border did not have the effect for S. of causing the prerequisites of § 213 para. 3 sentence 2 no. 5 of the CLC GDR (commission of the act “together with others”) to cease to apply (GDR Commentary loc. cit.).

2. Contrary to the view of the Young Persons Chamber, consideration should be given to interpreting these provisions as meaning that the conduct of the defendants was covered by them.

(a) The literal meaning of § 27 of the Border Act permits such an interpretation: the crossing of the border which, by application of § 213 para. 3 of the CLC-GDR was regarded as a crime, should, so far as it was directly imminent, be “prevented” by the use of firearms (§ 27 para. 2 sentence 1 of the Border Act). The Act certainly described the use of firearms as the “ultimate measure” (§ 27, para. 1 sentence 1 of the Border Act); other means of preventing the crossing of the border were however not available for the defendants. According to § 27 para. 5 of the Border Act, the lives of others were to be spared “as far as possible”, and therefore not in every case. According to this, the literal meaning of the Act permits the interpretation that it was permissible to fire, even with the intention (conditional4, however) of killing if the objective of preventing border violations could not be attained in another way.

The prerequisite for this interpretation of § 27 of the Border Act is, of course, that the objective of preventing border violations had priority over the sparing of human life in case of conflict. How the balancing of the life of the fugitive with the “inviolability of the State border” was to turn out could not be gathered from the Act. Case law of courts of the GDR on this question has not been published. Remarks in the literature of the GDR on the use of firearms at the border limit themselves to the statement that rules on the use of firearms corresponded to the West German provisions (Kaul/Graefrath NJ 1964, 272, 273) and, in harmony with international law, served the protection of national security and public order (Buchholz/Wieland NJ 1977, 22, 26); these remarks originate from the time before the Border Act came into effect. Under these circumstances, the total context of the command established by the judge of fact and the circumstances – likewise based on alleged commands – surrounding the occurrence of the act are to be referred to in order to ascertain how the provisions of § 27 of the Border Act was understood by those responsible for its application and interpretation at the time of the act.

(aa) The total context of the command included – according to the contested judgment – “even the deliberate killing of the fugitive in order to frustrate the flight” if less severe means did not suffice for the prevention of the flight. The reaching by the fugitive of the western sector of Berlin was accordingly “to be prevented in every case and in the end by all means”. In the regularly recurring “gathering” the “key sentence” was, according to the findings, included: “Border escapes are not to be permitted in any case. Border violators are to be arrested or destroyed”. In the training of border soldiers, the following counted as a rule of thumb: “Better that the fugitive should be dead than that the flight should succeed”. The interest in prevention of the flight accordingly had priority over the life of fugitive. A successful flight was “the worst thing that could happen for the company as it would not be consistent with the duty placed upon it”. On the other hand, the fatal shooting of a fugitive at the wall had “no negative consequences”; it never led to proceedings against the marksman. Instead, the guard who had, in whatever way, prevented a flight would be treated with distinction and rewarded. The judge of fact found no basis for saying that courts, public prosecutors’ offices or other State authorities of the GDR had ever objected that the use of firearms described in the total context of the command exceeded the boundaries laid down in § 27 of the Border Act.

(bb) The fact that the protection of the life of “border violators” receded behind other objectives, even the objective of keeping serious injuries secret, is also shown by the following findings of the judge of fact:

Although § 27 para. 5 of the Border Act directed that the lives of persons were to be spared as far as possible and they were to be given first aid subject to consideration of the necessary security measures, none of the members of the border troops and other units coming up after the shots of the defendants helped S. although he asked for this several times. He was “dragged” to a tower and “put down” there in a place which was not visible from the West. S. was not taken away by the usual ambulance of the “Rapid Medical Aid”, but by a regiment ambulance which first took 45 minutes to arrive, and not to the nearest hospital but to the more distant hospital of the Peoples Police, where he was delivered more than two hours after the injuries. There was no doctor in the ambulance, because on the requesting of the ambulance no communication was permitted to the effect that someone had been seriously injured. With rapid medical assistance, S. could have been saved. The measures mentioned, which produced a substantial delay, corresponded to the total context of the command which was primarily orientated, not towards the saving of life, but towards the interest in ensuring that the incident remained unknown on both sides of the border; possibly this secrecy counted as a “necessary security measure” in the sense of § 27 para. 5 sentence 2 of the Border Act. It corresponded with the priority of secrecy over the saving of life that the medical orderlies were not permitted to notify their regimental doctor of the journey, that the section commander had to sign to say that the night duty had passed without any special occurrences and that the name of the victim was not mentioned in the admittance book for the hospital or on the death certificate; and also the father of the victim was only informed of the death of his son for the first time on 4 December 1984.

An indication of the importance of political interests also follows from the fact that the command to shoot at the border was, on the occasion of State visits, party conferences and meetings of the Free German Youth, restricted to cases of self-defence, the use of “major equipment” and desertion. At the same time, the number of guards was increased.

(cc) All the factual circumstances mentioned show that the prevention of a crossing of the border was understood as an overriding interest, behind which personal legal interests, inclusive of that of life, receded. The Senate therefore reached the conclusion that, according to State practice in the GDR at the time of the act, the use of continuous fire without preliminary single shots directed at the legs had not been regarded as unlawful. This is because the defendants, by continuous fire, increased the chance of preventing the flight (although admittedly also the risk of a fatal shot) and thereby complied with what was, in harmony with the prevailing interpretation of the Border Act, conveyed to them as the most important objective, namely the prevention of crossings of the border. They would, according to the stated criteria for assessment, possibly have laid themselves open to criticism, supported by § 27 para. 5 sentence 1 of the Border Act, if there was a high probability that single shots at the legs would have reliably prevented flight. That is certainly not the position here in view of the timing: S. was, when the defendants fired, rapidly climbing the ladder. He needed five seconds to reach a height from which he could grasp the top of the wall. It must be accepted that he was at this point in time in a position to climb over the top of the wall within a few seconds and thereby to bring himself into safety. On the firing of single shots, according to the findings, the least interval between two shots amounted to 1.5 seconds; in view of the shortness of the time remaining for prevention of the flight, the chance of attaining this objective was accordingly substantially higher with continuous fire (with a frequency of ten shots per second). Incidentally, it must also be borne in mind that the distance of the marksmen from S. was not inconsiderable and that the events took place at night.

(dd) Accordingly, the conduct of the defendants complied with the justification provisions of § 27 para. 2 of the Border Act as they were applied in State practice. This State practice is characterised by the priority of prevention of flight over protection of life; the courts and authorities of the GDR which are competent to exercise legal control have not contradicted this State practice. In so far as one takes as a basis the understanding of § 27 para. 2 of the Border Act expressed in it, the shots of the defendants given with conditional intent and by continuous fire were justified.

In looking at the matter in this way, the Senate diverges from the proceedings of the Young Persons Chamber. The latter interpreted the Border Act, because of the “appearance of constitutionality” suggested by it, in accordance with constitutional criteria, in particular in the light of the principle of proportionality; it was of the view that preventative objectives of the State never justified the intentional or even the conditionally intentional killing of a human being who does not endanger the life of others, because life is the highest legal interest. According to the view of the Young Persons Chamber § 27 para. 2 of the Border Act does not even justify (unconditional or conditional) intentional killing if the State objectives described in § 27 of the Border Act could not otherwise be attained. The Young Persons Chamber is indebted to the Basic Law and the European Human Rights Convention for this view of the law. It was therefore an appropriate starting point for the interpretation of § 11 of the AFA as well as of § 16 of the AMFA. Here, however, it is not a question of the interpretation of these provisions, but, having regard to § 2 para. 3 of the CLC, of examining whether a ground of justification under the foreign law applicable at the time of the act is to be considered as a less severe statutory provision.

(b) One must distinguish from the question of whether the conduct of the defendants was justified by the law of the GDR as it was applied in State practice the other question of whether a ground of justification understood in this way (§ 27 para. 2 of the Border Act) must be left out of consideration in the determining legal situation because it infringes pre-ordained general legal principles which should be observed in the GDR as well, and because of an extreme violation of the principle of proportionality, especially if the examination of the foreign ground of justification takes place within the framework of § 2 para. 3 of the CLC. The Senate answers this question in the affirmative.

The ground of justification mentioned in § 27 para. 2 of the Border Act as operated by the State practice of that time, communicated by the total context of the command, covered, insofar as the crossing of the border could not be prevented in another manner, the (conditionally or unconditionally) intentional killing of persons who did not want to do anything more than cross the border unarmed, and without endangering generally recognised legal interests. According to this, the enforcement of the prohibition against crossing the border without special permission had priority over the right of human beings to life. In these special circumstances, the ground of justification, as presented in State practice, is not to be taken into consideration in the application of the law.

(aa) Cases in which a ground of justification accepted at the time of the act is regarded as not appropriate for consideration must certainly remain limited to extreme exceptions.

The fact that a ground of justification offends against the public order of the Federal Republic of Germany (compare Art. 6 of the IACC) is – contrary to the view of Küpper/Wilms JLP 1992, 91, 93 – not on its own a sufficient ground to deny it consideration in passing judgment on an act committed under the earlier law. The State Court has correctly referred to the great importance of legal certainty. This argues in favour of in principle taking into account the grounds of justification in earlier law in determining which is the less severe law for cases under § 2 para. 3 of the CLC.

(bb) A ground of justification accepted at the time of the act can only remain out of consideration because of a violation of law with a higher priority if an obviously gross violation of basic concepts of justice and humanity is expressed in it; the violation must be so serious that it offends against convictions about law, which are common to all people, referring to the worth and dignity of the human being (FHCCr 2, 234, 239). The conflict of positive law with justice must be so intolerable that the statutory provision has, as false law, to give way to justice (Radbruch SGLG 1946, 105, 107). An attempt was made (compare also FCCD 3, 225, 232; 6, 132, 198 and onwards) after the end of the National Socialist despotism to characterise the most serious violations of law in this way. The transfer of these points of view to the present case is not simple, because the killing of human beings at the internal German frontier cannot be equated with national socialist mass murder. Nevertheless, the insight obtained at that time remains valid, that in assessing acts which have been committed at the order of the State, regard has to be had to whether the State has overstepped the uttermost limit which is set for it according to the general conviction in every country.

(cc) Today, more concrete standards for investigation have been added: the international human rights agreements offer criteria for saying when the State violates human rights according to the belief of the world wide legal community. In this connection, the International Convention on Civil and Political Rights of 19 December 1966 (FLG 1973 II 1534 – ICCPR) is of special significance. The GDR acceded to it in 1974 (LG GDR II 57); it deposited the ratification document on 8 November 1974 (LG loc. cit.). The International Agreement (called “Convention regarding Civil and Political Rights” in the parlance of the GDR) came into effect for both German States on 23 March 1976 (FLG II 1068; LG GDR II 108). The GDR however neglected to use the agreement in accordance with Art. 51 of the GDR Constitution as an opportunity for internal statutory amendments and to have it “confirmed” on this occasion by the People’s Chamber in accordance with the said constitutional provision. These circumstances do not change anything so far as the international law obligation of the GDR is concerned. A State can “not evade the fulfilment of obligations entered into by it by an appeal to its internal legal order” (International Law, Textbook, East Berlin 1981, I p. 59); it is “obliged by virtue of international law to act in the sphere of its internal legislation in accordance with these obligations and to fulfil them” (loc. cit.). If contradictions result between the human rights recognised by the GDR in international law and the actual application of provisions as to the border and the use of weapons when the law of the GDR is assessed, this contradiction can also be taken into account when considering the question of whether a person is acting unlawfully if he violates human rights which are protected by the international law agreement, at the command of the State. For that reason, the question can remain open of whether, contrary to the view held in the GDR (Buchholz/Wieland NJ 1977, 22, 26; compare also Graefrath, Human Rights and International Co-operation, East Berlin, 1988 p. 55 and onwards, as well as R. Hoffmann, The Freedom to Travel Abroad in International Law and National Law West Berlin 1988 p. 243 and onwards), it can be derived from the special content of the ICCPR that ratification alone has created for persons in the contracting states a legal standing as against their State (compare Tomuschat, United Nations 1976 H 6 p. 166 and onwards; Buergenthal in: Henkin [Ed.], The International Bill of Rights 1981 p. 72 and onwards).

(1) Art. 12 para. 2 of the ICCPR states “Every person is free to leave any country including his own” (Translation in the GDR Law Gazette: “Everyone is free to leave any country and also his own”). According to Art. 12 para. 3 of the ICCPR, this right may only be limited by statute and only for certain purposes, amongst which are the protection of national security and the public order.

The requirement that the limitation must take place by statute has been fulfilled by the Passport Act of the GDR of 28 June 1979 (LG GDR I 148). The GDR has continually referred to the fact that the limitations contained in the Passport Act and the directives appertaining to it served the protection of the public order. However, it follows from the binding English wording of Art. 12 para. 3 of the ICCPR (“The … rights shall not be subject to any restrictions except … “) and the history of origin as well as the international interpretation of the provision that a comprehensive statutory reservation was not intended from the viewpoint of public order (ordre public); the limitations should much rather remain limited to exceptional cases and not in any way destroy the substance of the freedom to move around and the right to travel abroad (Novak, UNO Agreement regarding Civil and Political Rights, Art. 12 marginal note 23, 32 and onwards; Jagerskiold in: Herkin [Ed.] The International Bill of Rights p. 166, 172, 179; R. Hofmann, The Right to Travel Abroad in International and National Law p. 123, 251; Polakiewicz EHRJ 1992, 177, 186; Hannum, The right to leave and return in International Law and Practice p. 52 and onwards; Recommendations of the International Conference of Uppsala [1972] and Syrakus [1984], reported by Hannum loc. cit. p. 150 and onwards, 22; Reinke, Columbia Journal of Transnational Law 24, p. 647, 665). Economic or social welfare points of view, as the materials show, should not be a permissible motive for the limitation of the freedom to move around (R. Hofmann, loc. cit. p. 43; Nowak loc. cit. marginal note 37 footnote 86; Bossuyt, Guide to the preparatory works to the ICCPR p. 255).

The GDR was heard in the years 1977 and 1984 before the Human Rights Committee of the United Nations on the circumstances at the inner German border. It explained in 1977 that the limitation on the freedom to move around complied with the ICCPR (compare Bruns German Archives 1978, 848, 851; UNO Document A 33/Suppl. 40 [1978] p. 26 and onwards, 29). In their report for the United Nations of 1984, the GDR referred to the large number of permitted journeys abroad and emphasised that the limitations served the protection of national security and public order (compare Bruns German Archives 1984, 1183, 1185; R. Hoffmann loc. cit. p. 117 and onwards, 251). In the oral interrogation, the representative of the GDR asserted at that time that the Border Act of 1982 was reconcilable with the ICCPR, and with Art. 6 of it (right to life); border soldiers only fired in the most extreme case of emergency, if other means did not suffice to prevent a crime – the case of violence was mentioned (R. Hofmann loc. cit. p. 121; compare Bruns loc. cit. 1984, 1186).

It cannot be accepted that the content of Art. 12 of the ICCPR was included in the “generally recognised rules of international law serving the peaceful co-existence and co-operation of peoples” in the sense of Art. 8 of the GDR Constitution; Art. 8 of this Constitution evidently referred to a narrower section of international law which related to the co-operation and co-existence of different States (compare Soergenicht, inter alia, Constitution of the GDR Art. 8, note 1; see also Mampel, The Socialist Constitution of the GDR, 2nd ed. Art. 8 marginal note 2). The rules corresponding to Art. 12 of the ICCPR belong however to the values which determine the relationship of the State to its citizens and for that reason must be considered in the interpretation of statutes.

(2) The human right to freedom to travel abroad described in Art. 12 of the ICCPR was violated by the border regime of the GDR because the right to free travel abroad was withheld from inhabitants of the GDR not only in exceptional cases but as a rule.

According to the provisions of GDR law regarding the issuing of passports as a prerequisite for the legal crossing of the German border (Passport Act and Passport and Visa Order of 28 June 1979 – LG GDR I 148, 151 -, supplemented by the Directive of 15 February 1982 – LG GDR I 187 -) there was, in any case, for citizens who were not politically privileged and were below pensionable age, no possibility of legal travel abroad until 1 January 1989 (coming into force of the Regulation of 30 November 1988, LG GDR I 271) apart from individual cases of pressing family matters; decisions regarding proposals to travel abroad needed no reasons until 1 January 1989 according to § 17 of the Directive of 28 June 1979 (LG GDR I 151) and could until this point in time (§ 23 of the VO of 30 November 1988) not be challenged by way of complaint.

This rule contravened the limitation criteria of Art. 12 para. 3 of the ICCPR, the principle that limitations should remain the exception and the principle established everywhere that denial of travel abroad must be capable of being challenged by legal remedies (Hannum loc. cit. p. 148). The Senate does not overlook the fact that other countries also limit the travel abroad of their own citizens, that the freedom to travel abroad was not made an independent basic right on the creation of the Basic Law (compare Pieroth LT 1985, 81, 84; Rittstieg in AC-BL 2nd ed. Art. 11 marginal note 1 and onwards, 37) and that this was at that time based on the fear that age groups capable of work would emigrate to an undesired extent (Year book of Current Public Law, New Series, Vol. 1 (1951), 44). It is also aware that in the United Nations there are divisions of opinion between developing countries, who want to prevent emigration of the intelligentsia, and Western European Member States who insist on as unlimited a freedom to travel abroad as possible (Hannum loc. cit. p. 31, 52, 55, 109 and onwards) and that at the time of the Act, in the States which were under Soviet influence, limitations on travel abroad always existed (compare R. Hoffmann loc. cit. p. 239 and onwards; Hannum loc. cit. p. 96 and onwards; G. Brunner in: Human Rights in the States of the Warsaw Pact, Report of the Independent Commission of Academics 1988 p. 165 and onwards; Kuss EHRJ 1987, 305).

The border regime of the GDR however took its particular harshness from the fact that Germans from the GDR had a special motive for the wish to cross the border to West Berlin and West Germany: they belonged, with people on the other side of the border, to one nation and were bound to them by various relationships of kindred and of other personal kinds.

(3) In particular, the position based on the restrictive provisions as to passports and travel abroad cannot be appreciated from the point of view of human rights without having regard to the actual circumstances at the border, which were characterised by “wall, barbed wire, no man’s land and command to shoot” (FCCD 36, 1, 35) and therefore violated Art. 6 of the ICCPR. According to this provision “every human being has an inherent right to life”; “no-one may be deprived of his life arbitrarily” (Art. 6 para. 1 sentences 1 and 3). Even if the interpretation of the characteristic “arbitrarily” has up till now, on the whole, not been very productive (compare Nowak loc. cit. Art. 6 marginal note 12 and onwards; Nowak EHRJ 1983, 11, 12; Polakiewicz EHRJ 1992, 177, 182; Ramcharan, Netherlands Internat. Law Review 30 (1983), 297, 316 and onwards; Boyle in: Ramcharan (Ed.) The Right to Life in International Law p. 221 and onwards) the tendency becomes apparent, in the case law of other states as well (compare in particular US Supreme Court 471 US 1 in the case Tennessee v Garner, 1985) to limit the use by the organs of state of firearms which have possible fatal effect, by strong emphasis on the principle of proportionality, to cases in which an endangering of life and limb of others is to be feared (Boyle loc. cit. p. 241 and onwards; Desch, Austrian Journal of Public Law and International Law 36 (1985) 77, 102; Ramcharan loc. cit. p. 318). In the “General Comment” of the Human Rights Committee of the United Nations on the Right to Life from the year 1982 (General Comment 6/16 – A/37/40 p. 93 and onwards -, printed by Nowak, UNO – Convention on Civil and Political Rights p. 879 as well as by Graefrath, Human Rights and International Co-operation p. 263) it says that the protection of life from arbitrary killing is of transcending importance; statute must “strictly control and limit” the circumstances in which state organs may deprive a person of his life (loc. cit. § 3).

The limit of arbitrary action is, according to the view of the Senate, in particular overstepped if the use of firearms at the border serves the purpose of frightening third persons away from the unauthorised crossing of the border. It is obvious that the “total context of the command” which included the intentional killing of “border violators” also had this objective.

In the present case, a violation of human rights also follows from the simultaneous violation of Arts. 6 and 12 of the ICCPR, in that the border regime in its unprecedented perfection and the use of firearms, defined by § 27 of the Border Act in association with § 213 para. 3 of the CLC-GDR but in practice applied ruthlessly, affected persons to whom it was forbidden, on the basis of an administrative practice denying travel abroad regularly and without reasons, to travel from the GDR into the western part of Germany and in particular of Berlin.

(4) As to the right to life, the Senate takes seriously the critical references made by the appeal in law of the defendant W to the interpretation of § 11 of the AFA as well as to §§ 15 and 16 of the AMFA (likewise Polakiewicz EHRJ 1992, 177, 185). It finds it strange that in the literature in the interpretation of § 16 of the AMFA a conditional intention to kill has been described as covered by the provision (Jess/Mann, AMFA 2nd ed. § 16 marginal note 4) and Frowein (in: Criticism and Trust, CP for Peter Schneider p. 112 and onwards) agrees that in the Federal Republic of Germany the use of firearms against human beings in view of its uncontrollable danger (compare to this FHCCr 35, 379, 386) should, even in the border area (§ 11 of the AFA), be limited to the defence of human beings (loc. cit. p. 117) and therefore to cases in which a danger to the life or limb of others is to be feared from the person fired at. The fact that the current interpretation of the firearms provisions of the applicable law in the light of the principle of proportionality is not in every respect satisfactory (compare also FHCCr 26, 99) does not however justify sympathy for the use of firearms by the border troops of the GDR; this was characterised by a combination of criteria which has no parallels in the Federal Republic of Germany in the light of its open borders.

(dd) The violation of the human rights guaranteed in Arts. 6 and 12 of the International Convention in their specific context, characterised by the relationships at the inner German border, makes it impossible for the Senate, in application of the law, to base a ground of justification on the provisions of § 27 of the Border Act as well as those of § 213 para. 3 of the CLC-GDR to the extent to which they were understood in the State practice of the GDR. The circumstances at the border were, even considering the economic and social disadvantages for the State affected which could be connected with a substantial emigration of persons who were capable of work, an expression of an attitude which valued the right of human beings to life at a lower level than its interest in preventing them from leaving the State. The ground of justification provided for in GDR law and described in § 27 of the Border Act was for this reason, in the interpretation which was indicated by the actual circumstances at the border, ineffective from the start. It must be left out of consideration in the search for a less severe law (§ 2 para. 3 CLC in association with Art. 315 para. 1 of the IACLC), because the GDR would have had to interpret the ground of justification restrictively on the basis of principles recognised by it.

3. The Senate then had to investigate the question of whether § 27 of the Border Act could, by the interpretation methods which were peculiar to the law of the GDR, have been interpreted in such a way as to avoid the violations of human rights mentioned; a ground of justification limited in this manner should then be considered, having regard to Art. 103 para. 2 of the BL. The examination shows that an interpretation that the ground of justification determined in this way would not however have covered the conduct of the defendants (continuous fire with conditional intention to kill) would have been possible.

(a) In this interpretation the Senate does not take the order of values in the Basic Law or in the Human Rights Convention as a basis; it limits itself to considering the provisions which were made in the law of the GDR for statutory interpretation which is sympathetic to human rights. The starting point is Art. 89 para. 2 of the Constitution of the GDR; according to this, legal provisions were not permitted to contradict the Constitution. According to Art. 30 of the Constitution, the personality and freedom of each citizen of the GDR were inviolable and restrictions were only permissible if they were based on statute and in relation to criminal acts or treatment for illness; laws could “only be limited insofar as this is permissible by statute and unavoidable” (Art. 30, para. 2). The right to life and physical integrity was not expressly mentioned in the Constitution of the GDR; this right is also not expressly dealt with in the literature of the GDR in the sense in which it is a subject in western constitutions (compare e.g. E. Poppe [Ed.] Basic Rights of Citizens in Socialist Society p. 163, 265). There can, however, be no doubt in the light of Art. 6 of the ICCPR that the constitutional provisions of Art. 30 para. 1 of the Constitution of the GDR, in that it declared personality to be inviolable, included the protection of life; consequently it is to be inferred from Art. 30 para. 2 of the Constitution of the GDR that invasions into the sphere of life had to be statutorily based (compare K.Sorgenicht, inter alia, Constitution of the GDR, Art. 30, note 1; G.Brunner, Human Rights in the GDR, pp. 111, 113). By the abolition of the death penalty by the 4th Penal Law Amendment Act of 18 December 1987 (LG GDR I 301) the GDR evidently wanted to take account of the human right to life. The provisions of Art. 30 para. 2 sentence 2 of the Constitution of the GDR expressed a point of view which in the constitutional law of the Federal Republic of Germany is called the principle of proportionality.

In contrast to the National Socialist dictator State, there was no doctrine in the GDR according to which the mere will of the possessor of factual power was able to make law. Statutes were binding (compare Art. 49 para. 1 of the Constitution); they could only be issued by the People’s Chamber (Art. 48 para. 2 of the Constitution). The administration of justice, which had to protect freedom, peaceful life and the rights and dignity of humans was called to “realise socialist legality” (Art. 90 para. 1 of the Constitution). The judges were to be independent, according to Art. 96 para. 1 of the Constitution, in their application of the law. Accordingly statutes laid claim to a validity which was not determined by directions or actual State practice. A person who seeks today to ascertain the content of the statutes of the GDR by having regard to the Constitution of the GDR and the fact that the GDR was bound by international human rights agreements does not thereby impute to the law of the GDR contents which would be irreconcilable with this law’s own pretensions. The First Deputy for the President of the Council of Ministers of the GDR on 25 March 1982 in the Peoples Chamber explained on the introduction of the Border Act, inter alia, that the regime regarding the use of firearms (§ 27) contained “no more and no less than other states have laid down for their protective organs”; the use of firearms was “the most extreme measure” against persons who “have committed crimes against the legal order of the GDR or seek to evade responsibility for the violation of the law they have committed” (People’s Chamber, 8th electoral period, 4th session, p. 88 and onwards of the shorthand copy).

(b) An interpretation of § 27 of the Border Act which is orientated to Arts. 6 and 12 of the ICCPR can be based on the principle of proportionality which has been mentioned and which was contained in Art. 30 para. 2 sentence 2 of the GDR Constitution; this principle has found expression in another context in § 26 para. 2 sentences 2 and 3 of the Border Act, as well as in its formulation that the use of firearms was “the most extreme measure of the application of force against persons” (§ 27 para. 1 sentence 1 of the Border Act). It is therefore natural to accept that the principle of proportionality, as it applied in the GDR, was violated if a person who climbed over the wall with a ladder was understood to be the perpetrator of a crime in accordance with § 213, para. 3, sentence 2, no. 2 of the CLC-GDR. If that is the case, then the use of firearms in accordance with § 27 para. 2 of the Border Act was not permissible, because the flight did not present itself as a crime in accordance with § 213 para. 3 sentence 2 no. 2 of the CLC-GDR. But even if the interpretation asserted by the Supreme Court and the General State Attorney, and further even the applicability of § 213 para. 3 sentence 2 no. 5 of the CLC-GDR is taken as a basis, the wording of § 27 para. 2 of the Border Act permitted an interpretation which took into account the principle of proportionality which is also present (in a limited form) in the law of the GDR. § 27 para. 2 sentence 1 of the Border Act is then to be understood in this way: the border soldier might certainly use firearms for prevention of flight in the cases described there. But the ground of justification reached its limit when shots were fired at a fugitive, who, according to the circumstances, was unarmed and not otherwise a danger to the life and limb of others, with the – conditional or unconditional – intention to kill him. Accordingly, the conditionally intentional killing, as expressed in the given circumstances in the use of continuous fire, was not covered by § 27 para 2 of the Border Act as interpreted in a manner sympathetic to human rights; that would also apply if the facts of the case were comprised within § 27 para. 2 sentence 2 of the Border Act (capture of persons who are seriously suspected of a crime in accordance with § 213 para. 3 of the CLC-GDR). In these cases, the protection of life has priority; this can also be supported by the legal concept of § 27 para. 5 sentence 1 of the Border Act – interpreted in a manner sympathetic to human rights.

(c) On this interpretation, the conduct of the defendants was not covered by the ground of justification in § 27 para. 2 of the Border Act; and accordingly they have also committed an unlawful homicide according to the law of the GDR.

4. According to Art. 103 para. 2 of the BL, an act can only be punished if the criminality was determined by statute at the time of the act (prohibition on retroactivity). This constitutional provision does not forbid the punishment of the complainants.

(a) In the circumstances explained above (at 2 and 3) there are grounds for the view that Art. 103 para. 2 of the BL does not prevent, from the outset, the punishment of the defendants because the act was punishable according to the law of the GDR at the time of the act as correctly interpreted. Whether the defendants knew this is a question which merely concerns grounds of excuse.

(b) The Senate has not however overlooked the fact that with regard to Art. 103 para. 2 of the BL the question can be raised as to which understanding of the law at the time of the act is to be taken as a basis. If a standard of assessment is applied to the law at the time of the act which causes the action, although it was commanded by the State, to appear as contrary to law (above, at 2 and 3), it follows that the prohibition on retroactivity does not oppose punishment. If on the other hand on assessment of the legal position which existed at the time of the act the actual conditions of power in the State are taken cheifly into consideration, the application of Art. 103 para. 2 of the BL can lead to another result. That applies primarily if the defendant has been commanded by a State department to violate a generally recognised law, especially the right to life. Here the question can present itself as to whether and in what circumstances the hypothesis in the defendant’s favour that the criminality was not statutorily determined at the time of the act must be derived from such a command.

(aa) The question of what meaning Art. 103 para. 2 of the BL has for the assessment of actions
which have been undertaken by order of the State under a former regime, and which violate human rights like the right to life, has not yet been made completely clear (compare Schüneman in CP for Hans-Jürgen Bruns, p. 223 and onwards; Dencker, CritQ 73 (1990), 299, 304 and Polakiewicz EHRJ 1992, 177, 188). The decisions of the Federal Constitutional Court mentioned in this connection (FCCD 3, 225 and onwards; 6, 195 and onwards) do not concern criminal law; even the question of whether a current criminal law limitation period can be lengthened (FCCD 25, 269 and onwards) is not relevant. The problem of the prohibition on retroactivity in relation to grounds of justification has been raised in German case law by the Supreme Court for the British Zone (SCCr 2, 231 and onwards).

The points of view developed under substantial influence of Anglo-Saxon legal opinions in the case law of the International Military Tribunal of Nuremberg as well as in particular in the decision in the so-called lawyers’ proceedings (IIIrd US Military Court, judgment of the 4. 12. 1947 p. 29 and onwards of the official text) were not taken over by later German case law. The prohibition against conviction in respect of acts which were not punishable at the time they were committed also occurs in Art. 15 of the International Agreement as well as in Art. 7 CHR. But a second paragraph is added to both provisions in which it says that the prohibition in principle on retroactivity does not exclude the conviction of persons whose act was punishable at the time it was committed according to the general principles of law recognised by the international community. The Federal Republic of Germany has however made the reservation (Art. 64 CHR) in respect of Art. 7 para. 2 CHR that the provision would only be applied within the limits of Art. 103 para. 2 of the BL (FLG 1954 II 14). The Federal Republic of Germany has declared no reservation in respect of Art. 15 para. 2 of the International Agreement; that does not alter the fact that in this respect Art. 103 para. 2 of the BL takes precedence, as constitutional law.

Grounds of justification are not generally excluded from the area of protection of Art. 103 para. 2 of the BL (compare Rüping, Bonn Commentary – Second Revision – Art. 103 para. 2 marginal note 50; Kratzsch GA 1971, 65 and onwards; Engels GA 1982, 109, 114 and onwards). That also applies to the prohibition on retroactivity contained in Art. 103 para. 2 of the BL. The Senate does not follow the proposition (compare, very recently, FC Schroeder JG 1992, 990, 991) that the prohibition on retroactivity should generally be referred to only at the stage of the constituent elements and not the stage of unlawfulness. The relationship of constituent elements and ground of justification does not always reflect a situation in which the violation of a legal interest permits an adverse social judgment even in the justified cases; the decision of the legislator to limit the constituent elements or to provide instead for a ground of justification for unlimited constituent elements is in certain circumstances only of a technical nature. If an action which corresponds to the constituent elements of the crime was not unlawful at the time of the act, it can consequently not in principle be punished, if the ground of justification is subsequently removed (Eser in Schönke/Schröder, CLC 24th ed. § 2 marginal note 3). That is to say that if a ground of justification which was provided for earlier is left out of consideration, the earlier law is changed to the disadvantage of the accused (compare Jakobs, Criminal Law GP 2nd ed., p. 121). In this respect, the prohibition on retroactivity should therefore also be considered within the framework of the examination in accordance with § 2 para. 3 of the CLC.

From this consideration, the inference has been derived in the most recent discussion with regard to cases of the present kind that a ground of justification employed at the time of the act, even if it also contradicts superior norms, should not be permitted to be left out of consideration to the disadvantage of the accused, because then a criminality, which did not exist at the time of the act, would be established in a manner which violates Art. 103 para. 2 of the BL (Jakobs in J.Isensee [Ed.], Overcoming the Past by Law p. 36 and onwards; also, in the same volume, Isensee p. 91, 105 and onwards; Grünwald DL 1991, 31, 33; Rittstieg, Democracy and Law 1991, 404; Pieroth PAGTPL 51 (1992) 99 and onwards, 102 and onwards, 144 and onwards, 168 and onwards; also, in the same volume, Isensee p. 134 and onwards; Dencker CritQ 73 (1990), 299, 306; differentiating, Polakiewicz EHRJ 1992, 177, 188 and onwards; compare also Dreier PAGTPL 51 (1992), 137).

(bb) The Senate does not follow this view in its outcome.

(1) In this connection, the provisions of the GDR concerning the punishment of crimes against peace and humanity and of war crimes (especially Art. 91 sentence 1 of the Constitution of the GDR) or the provisions of § 95 of the CLC-GDR are certainly not to be called upon. It is true that the last named provision excludes, apparently without limitation, reference to statutory provisions which are contrary to basic rights and human rights. As its position in the statute shows, however, the provisions only concern the crimes designated in §§ 85 to 94 of the CLC-GDR; it was not to establish generally a testing of statutory provisions against the standard of basic rights and human rights. The fact that § 95 of the CLC-GDR in accordance with the official interpretation at that time (GDR Commentary § 95 note 1) was to take over the content of Art. 8 of the Statute of the International Military Tribunal of Nuremberg corresponds with this.

(2) The Senate is, for the following reason, of the view that Art. 103 para. 2 of the BL is not opposed to the proposition that the act is unlawful; the decisive issue is, as stated, whether the criminality “was determined by statute” before the act was committed. In examining whether this was the case, the judge is not bound in the sense of pure factuality to that interpretation which found expression in State practice at the time of the act. If the law at the time of the act could, taking into account the limits provided by the literal meaning of the statute and in the light of the constitution of the GDR be so interpreted that the international law obligations of the GDR with regard to human rights were complied with, the law at the time of the act is to be understood according to this interpretation sympathetic to human rights as the law which “statutorily determined” the criminality at the time of the act in the sense of Art. 103 para. 2 of the BL (similar in outcome to Alexy PAGTPL 51 (1992), 132 and onwards; Schünemann loc. cit.; Lüderssen JCJ 104 [1992], 735, 779 and onwards; compare further Starck and Maurer VVDStRL 51 (1992), 141 and onwards, 147 and onwards). A ground of justification which would have justified the conduct of the defendants was certainly accepted in State practice as was expressed in the total context of the command; but it ought not to be inferred at that time from the statute as correctly interpreted. The prohibition on retroactivity should protect the accused from arbitrary action and limit penal authority to the enforcement of general laws (Schreiber, Statute and Judges p. 217); it protects the trust which the defendant has put, at the time of the act, in the continuing existence of the law applicable at that time (Rüping, Bonn Commentary – Second Revision – Art. 103 para. 2 of the BL marginal note 16 with further references). These protective principles of constitutional law are not being ignored here: the expectation that the law would also be applied in the future as it was in State practice at the time of the act, in such a way that a ground of justification which was contrary to human rights was acknowledged, is not worthy of protection. It is not arbitrary treatment if the accused, so far as the unlawfulness of his action is concerned, is judged in the way in which he ought to have been treated on the correct interpretation of GDR law at the time of the act. Besides this, no other outcome could apply if a statutory ground of justification which is open to equally weighty objections would be susceptible to no interpretation at all which is orientated to human rights.

(c) If no ground of justification is accordingly available to the defendants, they have fulfilled the constituent elements of § 212 of the CLC in an unlawful manner. Therefore, the view of the Young Peoples Chamber that the law of the Federal Republic of Germany is applicable proves correct in its outcome, because it is less severe, in the sense of § 2 para. 3 of the CLC, than the corresponding constituent elements (§§ 112 and 113) of the Criminal Code of the GDR; this follows from the fact that in § 213 of the CLC a lower punishment structure is provided for in respect of less serious cases.

III.

1. On this basis the relevant factual and legal examination shows that the Young Peoples Chamber correctly assessed the conduct of the defendants as joint manslaughter (§§ 212 and 25 para. 2 of the CLC).

(a) The Young Peoples Chamber, without any mistake in law, based their proposition that the defendants had acted with a conditional intention to kill on the particular endangering of the victim, of which the defendants were aware, and which was associated with the discharge of continuous fire, connected with the total context of the command with which the defendants wished to comply. This intention distinguishes the act which was the subject of the judgment from the case dealt with in the decision FHCCr 35, 379; there, the official had, according to the finding of the judge of fact which was accepted by the court hearing the appeal in law, accepted the possibility of a fatal injury of the fugitive without approving of it (loc. cit. p. 386).

(b) The defendant H was also a perpetrator. It is true that he only hit the victim on the knee, as he had intended. However, both the defendants used continuous fire by agreement to prevent S. climbing over the wall, even if it was to cost him his life. It is true that there was no contact between the two defendants after the defendant H left the tower. Both acted however under the influence of the same command, with the same object in view. Certainly when the intention is only conditional higher standards are to be set as to whether the act has been committed jointly (§ 25 para. 2 of the CLC). The judgment of the Young Peoples Chamber is however correct in relation to these standards. Both defendants were commanded to shoot at the fugitive, even if this resulted in killing him, if his flight could not otherwise be prevented. Both proceeded on the basis, as the judge of fact has established, that, at any given time, the other would comply with the command. By their actual conduct, they each gave the other to understand that they were pursuing the objective which was given to them both by the command. It corresponded with the total context of the command that each of the two soldiers contributed by shooting to prevent the flight. Under these circumstances, the conduct of the co-defendant, which led to fatal injury must be attributed to the accused H in the sense of complicity based on their joint task.

The provisions of the CLC-GDR regarding complicity (§ 22 para. 2 no. 2) did not form the basis of a less severe assessment in the sense of § 2 para. 3 of the CLC. The defendants also carried out the act jointly in the sense of § 22 para. 2 no. 2 of the CLC-GDR, in that both fired with conditional intention to kill. For S., regardless of the sequence – which was not made clear – of the shots, the chance of escaping from the shots of the defendant W. by climbing over the wall would in any case be diminished by the fact that the defendant H also fired at him. In this respect this defendant also took steps which were appropriate for bringing about the death of the victim (compare GDR Commentary § 22 CLC note 5 with reference to SC NJ 1973, 87 and 177).

(c) Both complainants were not only assistants of those from whom the commands originated. The Senate does not need to go into the question of whether and in what manner the new form of the provisions of § 25 para. 1 of the CLC introduced by the 2nd CRA excludes a judgment like that taken by the Federal High Court in FHCCr 18, 87 in favour of mere participation (compare also FHC NJCL 1987, 224 and onwards). Here the defendants have not only fufilled all the constituent elements, by reciprocal assignment of the carrying out of the shared joint task. They also had, in contrast to those who receive a command immediately before the shooting, a certain latitude in respect of their actions, because on the sudden appearance of the fugitive they were dependent on themselves alone. This circumstance characterises their behaviour as perpetration.

2. The defendants committed the – in default of any ground of justification which could be taken into account, unlawful – killing on command. The findings show that they did not recognise as they committed their act that the carrying out of the command violated criminal statutory provisions. This is not, however, inconsistent with their guilt.

(a) The Senate had to examine first in this connection whether for an action carried out by command § 258 para. 1 of the CLC-GDR is, with regard to § 2 para. 3 of the CLC, less severe than the corresponding provisions of the federal law (§ 5 para. 1 of the MCA). That would be the case insofar as the soldier would always be free from responsibility according to § 258 para. 1 of the CLC-GDR if he did not positively recognise that the execution of the command violated criminal statutory provisions. Statements in the GDR Commentary can be understood in this sense (§ 258 of the CLC, note 2, 3 d). However, this comment is not reconcilable with the literal sense of the statute. According to § 258 para. 1 of the CLC-GDR, the soldier is not freed from his responsibility if the carrying out of the command obviously violates the recognised norms of international law or criminal statutes. The provision can only be understood in such a way that in this case even the person who did not recognise the violation of the criminal law can be punished for his act; only for this group of persons is the reference to the obviousness of the violation of the criminal law meaningful, whilst for the person who perceived the criminal unlawfulness, it cannot matter whether this was obvious or not.

According to this, § 5 para. 1 of the MCA was to be applied in the framework of the – in other respects less severe – federal law. It is true that the Military Crimes Act only applies directly for soldiers of the Federal Army (§ 1, para. 1 of the MCA). But as it would be unfair to consider the relationship of subordination of the two defendants as against those issuing commands to them neither in accordance with the law of the GDR nor in accordance with federal Law, the provisions of § 5 of the MCA are to be applied correspondingly in favour of the defendants.

(b) According to § 5 para. 1 of the MCA, the subordinate is only guilty if he recognises that it is a question of an unlawful act or this is obvious according to the circumstances known to him. The first of the stated prerequisites is, as has been explained, not present. Whether the defendants are excused in accordance with § 5 para. 1 of the MCA is consequently dependent on whether it was obvious according to the circumstances known to them that a command had been given to them to commit an unlawful act in the sense of the Criminal Law Code (§ 11 para. 1 no. 5 of the CLC).
The Young Peoples Chamber accepts that it was obvious for the defendants according to the circumstances known to them that they were committing a delict of homicide in the sense of the Criminal Law Code by the shooting which was the subject of the command to them. This assessment stands firm as a result of the factual and legal examination.

The Young Peoples Chamber did not overlook the fact that the defendants as border soldiers of the GDR were exposed to an especially intensive political indoctrination and that they had previously “grown up in the spirit of socialism with corresponding hostile images of the Federal Republic of Germany and of persons who wanted to leave the GDR by surmounting the barrier installations”. Even in these circumstances the Chamber did not ignore the higher requirements which are to be placed on obviousness in the sense of § 5 para. 1 of the MCA. The soldier has no duty of examination (Scherer/Alff, Military Law, 6th ed. § 11 marginal note 29). If he harbours doubts which he cannot get rid of, he may follow the command; the violation of the criminal law is only obvious when it is beyond all doubt (Official Basis of the Scheme of Military Law FP-PM 2/1700 p. 21; compare also Schölz Lingens MCA, 3rd ed., § 5 marginal note 12).

There can be no objection on legal grounds to the Young Peoples Chamber nevertheless accepting that it was obvious in the circumstances that the shooting here violated criminal law. The Young Peoples Chamber emphasises pertinently the “requirement of humanity” which includes, amongst other things, the principle that the criminal also has a right to life. By this it meant that it was plainly self-evident that the State does not have the right, in order to prevent this impermissible crossing of the border, to cause the killing of a person who, without threatening others, intended to go from one part of Berlin into another by surmounting the wall. It is conceded in favour of the appeals in law that the application of the characteristic “obvious” is very difficult here. After all, during the long years in which there were shootings at the wall and at the other inner German borders, the people in the GDR who bore responsibility in politics, military leadership, justice and knowledge were not known to have expressed a view publicly about killing on the border. Proceedings against marksmen had not been taken. In the light of the life history and environment of the defendants it also does not seem appropriate to reproach them with “complacency”, “blindness to the law” and renunciation of their own thought processes. Finally, it should not be held against the accused H that “according to his own admission he recognised immediately after the act that his action against S. was inhuman”; this circumstance can also have as its explanation that confrontation with the consequences of the shots awoke the conscience of the accused for the first time.

Nevertheless, the view of the Young Peoples Chamber that the killing of an unarmed fugitive by continuous fire in the given circumstances was an act so dreadful and so beyond any rational justification that the violation of the elementary prohibition of killing was easily comprehensible, and therefore obvious, even for an indoctrinated person, should, in the end, be agreed. The fact that the great majority of the population of the GDR disapproved of the use of firearms at the border corresponds with this. It is generally known that this was the case. Even the circumstance that whole context of the command gave secrecy of the event priority over taking rapid steps to save the life of the victim shows to what degree those responsible assumed disapproval by the population of fatal shots. The victim S., a carpenter, had strictly refused to join the border troops.

3. The judge of fact did not exclude the possibility that the defendants believed, in accordance with the command, they had to kill a violator of the border in order to prevent his flight even if the command was unlawful. There can be no objection on legal grounds to the fact that the judge of fact accepted that this mistake represented, as an assumption of a ground of justification which was not recognised, a mistake of law which, in the sense of § 17 sentence 2 of the CLC, could have been avoided by the defendants. The judge of fact, as a basis for the last mentioned assessment, again referred to the fact that life was the highest of all legal interests. That cannot be opposed on legal grounds. The judge of fact would also have been able to refer in this connection to the fact that the defendants were told in their training that commands which offended against humanity did not need to be followed.

In connection also with the question of a mistake of law, the application of the law of the GDR would not lead to a more lenient judgment (§ 2 para. 3 of the CLC). It is true that it has been stated in the literature of the GDR that the perpetrator would (only) be acting intentionally if he was aware that he was violating the basic social norms (GDR Commentary § 6 note 1). According to Lekschas, amongst others, intention includes the “self knowledge that one has decided in favour of socially negative conduct contrary to the basic rules of human communal life” (Criminal Law of the GDR, Textbook 1988 p. 237). There was, however, on this issue, no uniform view (Leckschas, amongst others, loc. cit.). Nothing emerges from the published case law of the courts of the GDR on this question. The Senate cannot infer from all this that the mistaken supposition that a command which obviously violated the criminal law had to be followed would have given rise, on the application of GDR law, to a denial of intention.

4. The assessment of the punishment withstands the factual and legal examination. The judge of fact, as the correlation of the grounds of the judgment shows, did not overlook the fact that the defendants had only grown up after the building of the Berlin wall and according to their origin and life history had no opportunity to subject their indoctrination to a critical assessment. Their vocational training as manual workers and likewise their school education obviously could not have contributed to this. The defendants were quite far down in the military hierarchy. They are in a certain way also victims of the relationships connected with this border. As the defence pertinently explained, circumstances which the defendants do not have to defend have led to them having been called to account under the criminal law before officials who have at their disposal a larger overview and a more discriminating education. All this urged towards lenient punishments. The Young Peoples Chamber took account of this.

Footnotes

  1. This expression implies a “pep-talk” or indoctrination session.
  2. Examples of Act of State in English law are the cases of Musgrave v Pulido (1879), 5 App. Cas. 102; and Buron v Denman (1848), 2 Exch. 167. Would the defence have been available in England in these circumstances?
  3. Endangering can in some circumstances come within a certain category of criminal offences.
  4. Conditional intention means the perpetrator foresaw that his action might fit the elements of a crime, and approved of this; or foresaw it as a serious possibility and accepted it.
    Compare this, and the shootings at the Berlin Wall case itself, with R. v Desmond, Barrett and Others, The Times 28 April 1868. This concerned an attempt by the defendant to free two Irish Fenians who were in prison. He blew up the wall near where he (incorrectly) thought they would be exercising. Several people living nearby were killed. Since he was considered to have foreseen the death or serious injury of these persons, he was convicted of their murder.
    In some cases, conditional intention will not suffice for a crime: for instance, the use of the words “contrary to his better knowledge” as in the offence of Calumny: § 187 of the CLC (see p. 643).

Translation, introductory note and footnotes by Raymond Youngs.