CASE OF STRELETZ, KESSLER AND KRENZ v. GERMANY

No violation of Art. 7-1;No violation of Art. 14+7

The applicants are NORP nationals , born in DATE and DATE respectively .

After their conviction by the NORP courts , the first CARDINAL applicants ( Mr PERSON and Mr PERSON ) were imprisoned under a semi - custodial regime ( offener Strafvollzug ) and then released after serving CARDINAL of their sentences . They now live in GPE ( GPE ) and GPE ( GPE ) respectively .

The third applicant ( Mr PERSON ) has been serving a semi - custodial sentence at FAC , GPE , since DATE .

DATE approximately DATE CARDINAL NORP fled from GPE ( GDR ) to GPE ( FRG ) . In order to staunch the endless flow of fugitives , the GPE built FAC on DATE and reinforced all the security measures along the border between GPE , in particular by installing anti - personnel mines and automatic - fire systems ( ORG ) . Many people who tried to cross the border to reach the LOC subsequently lost their lives , either after triggering anti - personnel mines or automatic - fire systems or after being shot by NORP border guards . The official death toll , according to the ORG ’s prosecuting authorities , was CARDINAL . Higher figures have been advanced by other sources , such as the “ CARDINAL DATE ORG ” ( ORG CARDINAL . DATE ) , which speaks of CARDINAL dead . In any event , the exact number of persons killed is very difficult to determine , since incidents at the border were kept secret by the GPE authorities .

ORG NORP ) of the GPE laid down the principles to be followed in matters of national defence and security and organised defence with the assistance of the GPE ’s ORG ( ORG Verteidigungsrat ; LAW see paragraph CARDINAL below ) .

The presidents of both these bodies and the president of the GPE ’s parliament ( ORG ) were members of the GPE ’s ORG ( PERSON ) .

ORG ( Politbüro ) of ORG was the party ’s decision - making organ and the most powerful authority in the GPE . It took all of the policy decisions and all of the decisions concerning the appointment of the country ’s leaders . The number of its members varied : after ORG XIth and last ORG in DATE , it had CARDINAL members and CARDINAL candidate members .

The Secretary - General of the ORG ’s ORG presided over ORG , and all the members of that ORG were party officials . It met in general twice a year and took important decisions about the establishment and consolidation of the border - policing regime ( Grenzregime ) and about orders to open fire ( Schiessbefehle ) .

NORP GPE border guards ( Grenztruppen der DDR ) were members of ORG ( ORG ) and were directly answerable to ORG ( FAC für nationale ORG ) . The annual orders of the Minister of Defence were themselves based on decisions of ORG .

For example , in a decision of DATE ORG made it clear that the orders ( ORG ) and service instructions ( PERSON ) laid down by the Minister of Defence should point out to border guards that they were “ fully responsible for preservation of the inviolability of the State border in their sector and that ‘ border ORG [ Grenzverletzer ] should in all cases be arrested as adversaries [ Gegner ] or , if necessary , annihilated [ vernichtet ] ” . Similarly , a service instruction of DATE stated : “ ORG are to be laid in targeted positions and in close formation ... with a view to halting the movements of ‘ border ORG and ... bringing about their arrest or annihilation . ”

DATE , and especially during the period from DATE , consolidation and improvement of the border security installations ( LOC ) and the use of firearms were regularly discussed at meetings of ORG . The orders issued by ORG as a result likewise insisted on the need to protect the GPE ’s State border at all costs and stated that “ border violators ” had to be arrested or “ annihilated ” ; these orders were then implemented by the commanding officers of the border - guard regiments . All acts by border guards , including mine - laying and the use of firearms against fugitives , were based on this chain of command .

The applicants occupied senior positions in the GPE ’s ORG apparatus and ORG leadership :

– the first applicant was a member of ORG from DATE onwards , of ORG from DATE and Deputy Defence Minister from DATE ;

– the second applicant was a member of ORG from DATE onwards , Chief of Staff of ORG and a member of ORG from DATE and Minister of Defence from DATE ;

– the third applicant was a member of ORG of ORG from DATE , of ORG from DATE TIME and of ORG and ORG from DATE onwards , and Secretary - General of ORG ( taking over from PERSON ) and President of ORG and ORG from DATE .

In DATE the flight of CARDINAL of citizens of the GPE to the ORG ’s embassies in GPE and GPE , and to GPE , which had opened its border with GPE on DATE , demonstrations by CARDINAL of people in the streets of GPE , GPE , GPE and other cities , and the restructuring and openness campaign conducted in GPE by PERSON ( perestroika and glasnost ) precipitated DATE of FAC on DATE , the collapse of the system in the GPE and the process that was to lead to the reunification of GPE on DATE .

By a note verbale of CARDINAL DATE GPE suspended Articles CARDINAL and CARDINAL of the bilateral agreement with the GPE of DATE ( in which GPE had agreed to waive entry visas for each other ’s nationals and refuse travellers permission to leave for third countries ) , referring expressly , in doing so , to Articles DATE and CARDINAL of LAW ( see paragraph CARDINAL below ) and to LAW .

During DATE the GPE ’s newly elected parliament urged the NORP legislature to ensure that criminal prosecutions would be brought in respect of the injustices committed by ORG ( die strafrechtliche FAC des SED - PERSON sicherzustellen ) .

In a judgment of DATE ORG ( Landgericht ) sentenced the first and second applicants to DATE and CARDINAL months’ imprisonment and DATE and CARDINAL months’ imprisonment respectively for incitement to commit intentional homicide ( GPE zum Totschlag ) , on the ground that they shared responsibility for the deaths of a number of young people aged DATE who had attempted to flee the GPE DATE by crossing the border between GPE ( CARDINAL cases respectively ) . The victims had died after triggering anti - personnel mines laid along the border or after being shot by NORP border guards .

The cases concerned were the following .

On DATE Mr PERSON , aged DATE , stepped on a landmine ( Erdmine ) while attempting to cross the border and lost his left leg . He nevertheless managed to reach the territory of the ORG , where , after a series of operations , he died of his injuries .

On DATE Mr PERSON , aged DATE , was seriously wounded by the explosion of a fragmentation mine ( PERSON ) while trying to cross the border . He nevertheless managed to reach the territory of the ORG , where he died of his injuries soon after .

On DATE Mr PERSON , aged DATE , was seriously wounded by the explosion of a fragmentation mine while attempting to cross the border . TIME later GPE border guards dragged him to a lorry outside the border zone . TIME he arrived at a hospital , where he died of his injuries .

On DATE Mr PERSON , aged DATE , was likewise seriously wounded by the explosion of a fragmentation mine while trying to cross the border . After a series of operations , he died of his injuries .

On DATE Mr PERSON , aged DATE , was seriously wounded by the explosion of a fragmentation mine while attempting to cross the border . He died TIME .

On DATE CARDINAL GPE border guards fired shots at Mr PERSON , aged DATE , as he was trying to climb over FAC using a ladder , hitting him in the back . He was not given any first aid . He did not reach the hospital of the GPE ’s ORG until TIME , by which time he had bled to death . The guards who had shot him were congratulated , the only regret expressed being that they had used that much ammunition .

During TIME CARDINAL to CARDINAL DATE Mr PERSON and PERSON PERSON , both aged DATE , attempted to climb over FAC . Mr Gueffroy was shot by a GPE border guard and died instantly . Mr Gaudian received bullet wounds . The guards who had shot them were congratulated .

ORG noted that all the orders of ORG , including those concerning the use of firearms at the border , were based on decisions of ORG , of which the applicants had been members . Border guards had been ordered to protect the border of the GPE at all costs , even if that meant that “ border violators ” ( Grenzverletzer ) thereby lost their lives .

ORG further noted that the practice of the NORP authorities deliberately went beyond the wording of statute law ( ORG ) , written orders and service instructions ; the provisions on the use of firearms at the border were disregarded . What was important for the border guards was not written law but what had been inculcated in them during their training , through political instruction and during their everyday service . The order actually given to border guards was : “ The unit [ der GPE ] ... will ensure the security of the GPE ’s State border ... its duty is not to permit border crossings [ Grenzdurchbrüche ] , to arrest ‘ border ORG or to ‘ annihilate’ them [ vernichten ] and to protect the State border at all costs [ unter PERSON ] ... ”

In the event of a successful crossing of the border , the guards on duty could expect to be the subject of an investigation conducted by the military prosecutor ( ORG ) .

On the basis of the criminal law applicable in the GPE at the material time , ORG began by declaring the first and second applicants guilty of incitement to murder ( GPE zum GPE ) ( Articles CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL of the GPE ’s Criminal Code – “ the StGB - DDR ” ; see paragraph DATE below ) . It held that the applicants could not justify their actions by pleading section CARDINAL(CARDINAL ) of the GPE ’s FAC ( Grenzgesetz – see paragraph CARDINAL below ) , which , in practice , had been used to cover the killing of fugitives by means of firearms , automatic - fire systems and anti - personnel mines . It ruled that this ORG practice “ flagrantly and intolerably infringed elementary precepts of justice and human rights protected under international law ” ( “ PERSON hat offensichtlich und unerträglich gegen ORG der Gerechtigkeit und gegen völkerrechtlich geschützte GPE verstoßen ” ) . ORG then applied the criminal law of the ORG , which was more lenient than that of the GPE , and convicted both applicants of incitement to commit intentional homicide ( Articles CARDINAL and CARDINAL § CARDINAL of the FRG ’s Criminal Code – “ the StGB ” ) .

In a judgment of CARDINAL DATE ORG ( ORG ) first upheld the findings of ORG regarding the classification of the offences under GPE law and then applied the criminal law of the ORG , partly because it was the law applicable in the place where the result of the offences had come about ( Tatort – Erfolgsort ) , since one of the fugitives had died inside FRG territory , and partly because the criminal law of the ORG was more lenient than that of the GPE . Secondly , ORG reclassified the offences according to the criminal law of the ORG and amended the charges against the CARDINAL applicants to intentional homicide as indirect principals ( Totschlag in mittelbarer PERSON ) ( Articles CARDINAL and CARDINAL of the StGB – see paragraph CARDINAL below ) . The length of the sentences to which the applicants were liable remained unchanged . Like ORG , ORG joined the cases of the first and second applicants .

ORG then found the CARDINAL applicants guilty of intentional homicide as indirect principals , on the ground that they had been members of ORG , the body whose decisions were a necessary precondition ( zwingende PERSON ) for the issuing of orders concerning the GPE ’s border - policing regime ( Grenzregime ) . The applicants knew that these orders would be obeyed and that fugitives had died at the border as a result of acts of violence . Like ORG , ORG held that the CARDINAL applicants could not plead in justification section CARDINAL(CARDINAL ) of LAW . It ruled that section CARDINAL(CARDINAL ) and its interpretation by the GPE regime flagrantly infringed human rights and in particular the right to freedom of movement and the right to life enshrined in LAW , a treaty ratified by the GPE on CARDINAL DATE ( see paragraph DATE below ) . The fact that the GPE had not transposed those provisions into its domestic law did not alter its obligations under public international law . Lastly , ORG decision had not contravened LAW ( Grundgesetz – see paragraph CARDINAL below ) since the applicants could not rely on a ground of justification ( PERSON ) which was contrary to higher - ranking legal rules . Even at the material time , a correct interpretation of section CARDINAL ) of the GPE ’s FAC would have shown that such grounds of justification could not be pleaded on account of the limits laid down by the LAW itself and in the light of the GPE ’s LAW and its international obligations .

On DATE the CARDINAL applicants lodged constitutional appeals with ORG ( Bundesverfassungsgericht ) . They submitted that their actions had been justified under the law applicable in the GPE at the material time and should not have made them liable to criminal prosecution . ORG divergent ex post facto interpretation had infringed the principle that the criminal law was not to be applied retroactively ( PERSON ) and LAW . In the ORG , they argued , there were provisions similar to section CARDINAL of the GPE ’s FAC , and every State limited the right to life where the pursuit of criminals was concerned . In that connection , the CARDINAL applicants referred to LAW . They also relied on LAW and the reservation in respect of that provision made by the ORG ( see paragraph CARDINAL below ) .

In a judgment of DATE ORG joined the first applicant ’s appeal to those of the second applicant and Mr PERSON , a former NORP border guard who is also an applicant before ORG .

After hearing submissions from ORG ( ORG für Justiz ) and ORG of ORG ( GPE für GPE ) , ORG dismissed the CARDINAL appeals as being ill - founded , basing its decision on the following grounds , in particular :

“ LAW has not been infringed .

The appellants submitted that LAW had been breached mainly on account of the fact that the criminal courts had refused to allow them to plead a ground of justification provided for at the material time in the GPE ’s provisions on the border - policing regime [ Grenzregime ] , as interpreted and applied by the GPE authorities . The first , second and third appellants [ Mr PERSON , who did not lodge any application with the ORG , PERSON and PERSON ORG ] further submitted that they had been victims of the violation of a right guaranteed by LAW in that they had been convicted , pursuant to the law of GPE , as indirect principals [ mittelbare GPE ] .

Neither complaint is well - founded .

NORP ( a ) LAW CARDINAL of LAW is an expression of the principle of the rule of law ... This principle forms the basis for the use of civil rights and liberties , by guaranteeing legal certainty , by subjecting ORG power to statute law and by protecting trust . In addition , the principle of the rule of law includes , as one of the guiding ideas behind LAW , the requirement of objective justice ... In the sphere of the criminal law , these concerns relating to the rule of law are reflected in the principle that no penalty may be imposed where there is no guilt . That principle is at the same time rooted in the human dignity and personal responsibility which are presupposed by LAW and constitutionally protected by LAW and CARDINAL § CARDINAL thereof , and to which the legislature must have regard when framing the criminal law ... It also underlies LAW ...

LAW secures these aims by allowing conviction only for acts which , at the time when they were committed , were defined by statute with sufficient precision as criminal offences . It further prohibits the imposition of a higher penalty than the one prescribed by law at the time when the offence was committed . In the interests of legal certainty and justice , it provides that in the sphere of the criminal law , which permits extremely serious interference with personal rights by the ORG , only the legislature may determine what offences shall be punishable . LAW CARDINAL of LAW thus reinforces the rule of law by strictly reserving law - making to ORG ... The citizen ’s trust is earned by the fact that LAW gives him the assurance that the ORG will punish only acts which , at the time when they were committed , had been defined by ORG as criminal offences , and for which it had prescribed specific penalties . That allows the citizen to regulate his conduct , on his own responsibility , in such a way as to avoid committing a punishable offence . This prohibition of the retroactive application of the criminal law is absolute ... It fulfils its role of guaranteeing the rule of law and fundamental rights by laying down a strict formal rule , and in that respect it is to be distinguished from other guarantees of the rule of law ...

( b ) Article CARDINAL § CARDINAL of LAW protects against retroactive modification of the assessment of the wrongfulness of an act to the offender ’s detriment ... Accordingly , it also requires that a statutory ground of justification which could be relied on at the time when an act was committed should continue to be applied even where , by the time criminal proceedings begin , it has been abolished . However , where justifications are concerned , in contrast to the definition of offences and penalties , the strict reservation of ORG ’s law - making prerogative does not apply . In the sphere of the criminal law , grounds of justification may also be derived from customary law or case - law . Where grounds of justification not derived from written law , but nevertheless recognised at the material time , subsequently cease to be applied , the question arises whether and to what extent LAW likewise protects the expectation that they will continue to be applied . No general answer to that question need be given here , because in the instant case a justification – based partly on legal provisions and partly on administrative instructions and practice – has been advanced in circumstances that make it possible to restrict the absolute prohibition of retroactiveness in LAW .

( aa ) Article CARDINAL § CARDINAL of LAW contemplates as the normal case that the offence was committed and falls within the scope of the substantive criminal law of GPE , as shaped by LAW , and that it is being judged in that context . In this normal case the criminal law , having been enacted in accordance with the precepts of democracy , the separation of powers and respect for fundamental rights , and therefore meeting in principle the requirements of objective justice [ materielle PERSON ] , provides the rule - of - law basis [ rechtsstaatliche NORP ] necessary for the absolute , strict protection of trust afforded by LAW .

( bb ) This principle no longer applies unrestrictedly in that , as a consequence of reunification , and as agreed in LAW , LAW to LAW , taken together with LAW , provides that GPE criminal law is to be applied when criminal proceedings are brought in respect of offences committed in the former GPE . That rule is a consequence of ORG assumption of responsibility for the administration of criminal justice in the territory of the GPE ; it is accordingly compatible with LAW , since citizens of the former GPE are tried according to the criminal law that was applicable to them at the material time , the law of GPE in force at the time of conviction being applied only if it is more lenient . However , this legal situation , in which GPE has to exercise its authority in criminal matters on the basis of the law of a ORG that neither practised democracy and the separation of powers nor respected fundamental rights , may lead to a conflict between the mandatory rule - of - law precepts of LAW and the absolute prohibition of retroactiveness in LAW thereof , which , as has been noted , derives its justification in terms of the rule of law [ rechtsstaatliche ORG ] in the special trust reposed in criminal statutes when these have been enacted by a democratic legislature required to respect fundamental rights . This special basis of trust no longer obtains where the other ORG statutorily defines certain acts as serious criminal offences while excluding the possibility of punishment by allowing grounds of justification covering some of those acts and even by requiring and encouraging them notwithstanding the provisions of written law , thus gravely breaching the human rights generally recognised by the international community . By such means those vested with ORG power set up a system so contrary to justice that it can survive only for as long as the ORG authority which brought it into being actually remains in existence .

In this wholly exceptional situation , the requirement of objective justice , which also embraces the need to respect the human rights recognised by the international community , makes it impossible for a court to accept such justifications . Absolute protection of the trust placed in the guarantee given by LAW must yield precedence , otherwise the administration of criminal justice in GPE would be at variance with its rule - of - law premisses [ rechtsstaatliche PERSON ] . A citizen now subject to the criminal jurisdiction of ORG is barred from relying on such grounds of justification ; in all other respects the principle of trust continues to apply , every citizen enjoying the guarantee that if he is convicted it will be on the basis of the law applicable to him at the time when the offence was committed .

( cc ) GPE has experienced similar conflicts when dealing with the crimes of National - Socialism .

NORP In that connection , ORG for GPE , and later ORG , ruled on the question whether an act might become punishable retroactively if a provision of written law was disregarded on account of a gross breach of higher - ranking legal principles . They took the view that there could be provisions and instructions that had to be denied the status of law , notwithstanding their claim to constitute law , because they infringed legal principles which applied irrespective of whether they were recognised by the ORG ; whoever had behaved in accordance with such provisions remained punishable ... ORG pointed out that in such cases the conduct of the offenders was not being judged by criteria which had acquired general validity only later . Nor were the offenders being called upon to answer the charges against them on the basis of criteria not yet valid or no longer valid at the material time . It could not be supposed that the offenders were not already familiar at the material time with the relevant principles , which were indispensable to human coexistence and belonged to the inviolable core of the law ...

ORG has so far had to deal with the problem of ‘ statutory injustice’ [ gesetzliches ORG ] only in spheres other than that of the criminal law . It has taken the view that in cases where positive law is intolerably inconsistent with justice the principle of legal certainty may have to yield precedence to that of objective justice . In that connection it has referred to the writings of PERSON [ PERSON ( DATE ) : NORP professor of law who considerably influenced the philosophy of law . Following the crimes of the NORP , he formulated the principle , also known as “ PERSON ’s formula ” ( Radbruch’sche ORG ) , that positive law must be considered contrary to justice where the contradiction between statute law and justice is so intolerable that the former must give way to the latter ] ... and , in particular , to what has become known as ORG ’s formula ... On that point it has repeatedly stressed that positive law should be disapplied only in absolutely exceptional cases and that a merely unjust piece of legislation , which is unacceptable on any enlightened view , may nevertheless , because it also remains inherently conducive to order , still acquire legal validity and thus create legal certainty ... However , the period of ORG rule had shown that the legislature was capable of imposing gross ‘ ORG by statute ... , so that , where a statutory provision was intolerably inconsistent with justice , that provision should be disapplied from the outset ...

NORP The decisions challenged meet the constitutional criterion set forth under CARDINAL .

( a ) ORG has since further developed its case - law when trying cases of so - called ‘ government criminality’ [ ORG ] during ORG regime in the GPE ... That case - law also forms the basis for the decisions challenged here . It states that a court must disregard a justification if it purports to exonerate the intentional killing of persons who sought nothing more than to cross the intra - NORP border unarmed and without endangering interests generally recognised as enjoying legal protection , because such a justification , which puts the prohibition on crossing the border above the right to life , must remain ineffective on account of a manifest and intolerable infringement of elementary precepts of justice and of human rights protected under international law . The infringement in question is so serious as to offend against the legal beliefs concerning the worth and dignity of human beings that are common to all peoples . In such a case positive law has to give way to justice .

ORG described the relationship between the criteria which together make up ORG ’s formula and the human rights protected under international law as being that the criteria of ORG ’s formula , which were difficult to apply because of their imprecision , had been supplemented by more specific assessment criteria , since the international human rights covenants provided a basis for determining when a ORG was infringing human rights according to the convictions of the world - wide legal community .

( b ) That assessment is in keeping with LAW . It is also supported by this ORG ’s judgment of DATE on LAW [ Grundlagenvertrag ] , which acknowledged that the GPE ’s practice at the intra - NORP border was inhuman , and that the PERSON , the barbed wire , the ‘ death strip’ [ Todesstreifen ] and the shoot - to - kill order were incompatible with the treaty obligations entered into by the GPE ...

( c ) Against the finding that a ground of justification derived from ORG practice and purporting to allow ‘ border ORG to be killed must be disregarded as an instance of extreme ORG injustice , it can not be objected by the appellants that the right to life and the right to freedom of movement are not unreservedly guaranteed by LAW and that even democratic GPE of the NORP type , based on the rule of law , have adopted legal provisions which expressly provide for the use of firearms under certain circumstances , particularly in connection with the pursuit and arrest of criminals . Admittedly , the wording of the GPE ’s legal provisions , in so far as they regulated the use of firearms at the intra - NORP border , corresponded to that of ORG provisions on the use of force [ unmittelbarer PERSON ] . But the findings in the impugned judgments show that , superimposed on those legal provisions , there were orders which left no room for limitation of the use of firearms according to the principle of proportionality , and which conveyed to the border guards on the spot the view of their superiors – and ultimately of ORG – that border violators were to be ‘ annihilated’ if they could not be prevented from crossing the border by other means . Through that subordination of the individual ’s right to life to the ORG ’s interest in preventing border crossings , the written law was eclipsed by the requirements of political expediency . Objectively speaking , this constituted extreme injustice .

( d ) Nor can the appellants argue that , having accepted that a justification could be disregarded , ORG had still not answered the question whether and in what circumstances the act thus held to be unlawful was punishable ... To establish punishability there is no need here for recourse to supra - positive legal principles [ überpositive Rechtsgrundsätze ] . Reference need only be made to the values which the GPE itself took as the basis for its criminal law . At the material time Articles CARDINAL and CARDINAL of the GPE ’s LAW absolutely prohibited the intentional taking of human life and marked the seriousness of such offences by prescribing severe punishment . If , for the reasons discussed above , there is no admissible ground of justification for a homicide , the definition of the offences in the above - mentioned provisions of criminal law makes such a homicide a punishable criminal offence .

The first CARDINAL appellants object that it was incompatible with Article CARDINAL § CARDINAL of LAW , applying the law of GPE , to find them guilty of intentional homicide as indirect principals . That objection fails .

The criminal courts established , on the basis of the provisions in force in the GPE at the material time , that the appellants had rendered themselves liable to punishment through their involvement in the killing of fugitives . ORG expressly endorsed ORG finding that according to those provisions the appellants were guilty of incitement to murder ( Articles CARDINAL § CARDINAL , sub - paragraph CARDINAL , and CARDINAL § CARDINAL of the GPE ’s Criminal Code ) . Only at a second stage did ORG apply the law of GPE , in CARDINAL case on the basis of LAW to LAW taken together with LAW ( the place - of - commission , or place - of - effect rule ) and in the other cases under LAW § CARDINAL of the LAW taken together with LAW of LAW , the law of GPE being more lenient than that of the GPE . In neither case were those decisions contrary to LAW Regarding the application of the place - of - commission rule , the ORG [ ORG ] has already ruled on the issue in its decision of CARDINAL DATE and it stands by that decision .

In view of its protective purpose , LAW does not preclude the application of law more lenient than that applicable at the material time . ORG , in agreement with academic writings ... , took the view that the more lenient law was the law which , on the basis of an overall comparison in the specific individual case , yielded a judgment more favourable to the offender , even if this or that criterion of assessment might appear to be less favourable than criteria laid down by the other law , the decisive factor being the legal consequences of the offence . That conclusion is compatible with the above - mentioned protective purpose of Article CARDINAL § CARDINAL of LAW and can not be questioned on constitutional grounds . ”

In a judgment of CARDINAL DATE ORG sentenced the third applicant to DATE and CARDINAL months’ imprisonment for intentional homicide as an indirect principal , on the ground that , as he had participated in CARDINAL decisions of ORG ( on DATE and CARDINAL DATE ) and CARDINAL decisions of ORG ( on DATE and CARDINAL DATE ) on the GPE ’s border - policing regime , he shared responsibility for the deaths of CARDINAL young people who had attempted to flee the GPE DATE by crossing the border between the two GPE . These persons had been shot to death by NORP border guards .

The cases concerned were the following .

On DATE CARDINAL GPE border guards shot at Mr PERSON , aged DATE , who was also trying to climb over FAC using a ladder , hitting him in the back . He lost his balance , fell to the ground and died TIME from a wound to the heart while he was being taken outside the border zone . The guards who had shot him were awarded medals and given a few days’ special leave .

On DATE Mr PERSON , aged DATE , attempted to climb over FAC with his friend , Mr PERSON , aged DATE , using a ladder . As the ladder was too short , the CARDINAL men helped each other with their hands , but Mr LOC fell on the west side of the PERSON and Mr PERSON on the east , where he was mortally wounded in the heart by shots fired by CARDINAL GPE border guards . The guards who had shot him were awarded medals and given a few days’ special leave and a bonus of MONEY .

During TIME CARDINAL to CARDINAL DATE Mr PERSON and ORG , both aged DATE , attempted to climb over FAC . Mr Gueffroy was shot by a GPE border guard and died instantly . Mr Gaudian received bullet wounds . The guards who had shot them were congratulated .

On the basis of the criminal law applicable in the GPE at the material time , ORG first declared the third applicant guilty of incitement to murder ( Articles CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL of the StGB - DDR – see paragraph CARDINAL below ) , basing its decision on the grounds it had already given for the convictions of the first CARDINAL applicants in its judgment of CARDINAL DATE ( see paragraph CARDINAL above ) . It then applied the criminal law of the ORG , as being more lenient than that of the GPE , and convicted the applicant as an indirect principal in the intentional homicides committed ( Articles CARDINAL and CARDINAL of the StGB – see paragraph CARDINAL below ) .

ORG further held that the applicant could not plead in justification the fact that the GPE ’s sovereignty had been limited by its dependence on GPE , since obligations arising from an alliance ( GPE ) did not absolve an individual of his criminal responsibility ( strafrechtliche PERSON ) . In fixing the length of the applicant ’s sentence , ORG likewise applied the criminal law of the ORG , as it was more lenient than that of the GPE .

On DATE the applicant appealed against the above judgment to ORG , relying , in particular , on LAW and the principle of the non - retroactive application of criminal laws .

After holding a hearing on DATE , ORG gave judgment on DATE , upholding on every point the judgment of ORG and referring to a number of landmark judgments it had previously delivered on the same issues , including , in particular , the judgment of DATE ( see paragraph CARDINAL above ) .

It noted , moreover , that ORG had meticulously detailed the successive instructions given in the case ( ORG ) , starting with the decisions of ORG and ORG in which the applicant had participated , going on to the military chain of command ( militärische ORG ) , and ending with the orders given to border guards and the fatal shootings .

On DATE , sitting as a panel of CARDINAL judges , ORG refused to entertain a constitutional appeal by the applicant , referring , in particular , to its landmark judgment of DATE ( see paragraph CARDINAL above ) .

The German Unification Treaty ( Einigungsvertrag ) of CARDINAL DATE , taken together with LAW ( Einigungsvertragsgesetz ) of DATE , provides , in the transitional provisions of LAW ( Articles CARDINAL to CARDINAL ( c ) of LAW to LAW ( Einführungsgesetz in PERSON ) , that the applicable law is in principle the law applicable in the place where an offence was committed ( PERSON ) . That means that , for acts committed by citizens of the GPE inside the territory of the GPE , the applicable law is in principle that of the GPE . Pursuant to LAW , the law of the ORG is applicable only if it is more lenient than GPE law .

The relevant provisions of the LAW were the following :

“ The generally recognised rules of international law intended to promote peace and peaceful cooperation between peoples are binding [ sind verbindlich ] on the ORG and every citizen . ”

“ Respect for and protection of the dignity and liberty of the person [ Persönlichkeit ] are required of all ORG bodies , all forces in society and every citizen . ”

“ ( CARDINAL ) The person and liberty of every citizen of GPE are inviolable .

( CARDINAL ) ORG are authorised only in respect of conduct punishable under the criminal law ... and must be prescribed by law . However , ORG rights may be restricted only in so far as the law provides and when such restriction appears to be unavoidable [ unumgänglich ] . ”

“ ORG shall lay down the principles to be followed in matters of national defence and security . It shall organise the defence of the ORG with the assistance of ORG . ”

“ Legal rules shall not contradict the LAW . ”

The first chapter of the Special Part ( GPE PERSON ) of the StGB - DDR , entitled “ Crimes against the national sovereignty of GPE , peace , humanity and human rights ” , included the following introduction :

“ The merciless punishment of crimes against the national sovereignty of GPE , peace , humanity and human rights , and of war crimes , is an indispensable prerequisite for stable peace in the world , for the restoration of faith in fundamental human rights [ Wiederherstellung des Glaubens an grundlegende Menschenrechte ] and the dignity and worth of human beings , and for the preservation of the rights of all . ”

Article CARDINAL of the StGB - DDR was worded as follows :

“ Any person whose conduct violates human or fundamental rights , international obligations or the national sovereignty of GPE may not plead [ kann sich nicht berufen auf ] statute law , an order or written instructions in justification ; he shall be held criminally responsible . ”

Article CARDINAL of the StGB - DDR provided :

“ Crimes against peace , humanity or human rights , and war crimes shall not be subject to the rules on limitation set out in this law [ laying down the limitation periods for the various categories of offences ] . ”

Article CARDINAL § CARDINAL of the StGB - DDR prescribed a prison sentence of DATE to life for murder ( PERSON ) . LAW of the StGB - DDR contemplated the offence of participation ( GPE ) in an offence , and in particular incitement ( GPE ) to commit one . LAW provided that criminal responsibility was to be determined by the law defining the offence . LAW ( CARDINAL ) of the StGB - DDR laid down a limitation period of DATE for the prosecution of offences attracting a sentence of more than CARDINAL years’ imprisonment .

“ Any person present at the scene of an accident or a situation in which human life or health are endangered who fails to lend necessary assistance within his capacity to provide , although able to do so without any real danger to his own life or health and without breaching other important obligations , must give a satisfactory account of his conduct to a social organ of justice [ gesellschaftliches ORG der Rechtspflege ] or shall be punished by a public reprimand , a fine , a suspended sentence or a term of imprisonment of DATE . ”

Article CARDINAL of the StGB - DDR ( CARDINAL version ) provided :

“ ( CARDINAL ) Any person who illegally crosses the border of GPE or contravenes provisions regulating temporary authorisation to reside in GPE and transit through GPE shall be punished by a custodial sentence of DATE , a suspended sentence with probation , imprisonment or a fine .

( CARDINAL ) In serious cases the offender shall be sentenced to CARDINAL to CARDINAL years’ imprisonment . Cases are to be considered serious , in particular , where

NORP the offence [ die Tat ] endangers human life or health ;

NORP the offence is committed through the use of firearms or by dangerous means or methods ;

NORP the offence is committed with particular intensity ;

NORP the offence is committed by means of a forgery [ Urkundenfälschung ] , falsified documents [ Falschbeurkundung ] or documents fraudulently used , or through the use of a hiding - place [ Versteck ] ;

NORP the offence is committed jointly with others ; or

NORP the offender has already been convicted of illegally crossing the border .

( CARDINAL ) Preparations and attempts shall be criminal offences . ”

Article CARDINAL of the second chapter of the StGB - DDR , which defined the term “ serious crime ” ( PERSON ) , was worded as follows :

“ Serious crimes are attacks dangerous to society [ gesellschaftsgefährliche PERSON ] against the sovereignty of GPE , peace , humanity or human rights , war crimes , offences against GPE and deliberately committed life - endangering criminal acts [ vorsätzlich begangene ORG gegen das PERSON ] . Likewise considered serious crimes are other offences dangerous to society which are deliberately committed against the rights and interests of citizens , socialist property and other rights and interests of society , which constitute serious violations of socialist legality and which , on that account , are punishable by CARDINAL years’ imprisonment or in respect of which , within the limits of the applicable penalties , a sentence of over DATE imprisonment has been imposed . ”

“ ( CARDINAL ) Members of the armed forces shall not be criminally responsible for acts committed in execution of an order issued by a superior save where the execution of the order manifestly violates the recognised rules of public international law or a criminal statute .

( CARDINAL ) Where a subordinate ’s execution of an order manifestly violates the recognised rules of public international law or a criminal statute , the superior who issued that order shall also be criminally responsible .

( CARDINAL ) Criminal responsibility shall not be incurred for refusal or failure to obey an order whose execution would violate the rules of public international law or a criminal statute . ”

Section CARDINAL of LAW , which came into force on DATE , provided :

( CARDINAL ) The use of firearms is justified

( a ) to prevent the imminent commission or continuation of an offence [ PERSON ] which appears , according to the circumstances , to constitute

– a serious crime [ Verbrechen ] against the sovereignty of GPE , peace , humanity or human rights

– a serious crime against GPE

– a serious crime against the person [ Persönlichkeit ]

– a serious crime against public safety or the ORG order

– any other serious crime , especially one committed through the use of firearms or explosives ;

( b ) to prevent the flight or effect the rearrest [ Wiederergreifung ] of persons

– who are strongly suspected of having committed a serious crime , or who have been arrested or imprisoned for committing a serious crime

– who are strongly suspected of having committed a lesser offence [ Vergehen ] , or who have been arrested , taken into custody or sentenced to prison for committing an offence , where there is evidence that they intend to use firearms or explosives , or to make their escape by some other violent means or by assaulting the persons charged with their arrest , imprisonment , custody or supervision , or to make their escape jointly with others

– who have received a custodial sentence and been incarcerated in a high - security or ordinary prison ;

( c ) against persons who attempt by violent means to effect or assist in the release of persons arrested , taken into custody or sentenced to imprisonment for the commission of a serious crime or lesser offence .

( CARDINAL ) The use of firearms must be preceded by a shouted warning [ LOC ] or warning shot [ GPE ] , save where imminent danger may be prevented or eliminated only through targeted use of the firearm .

( CARDINAL ) When firearms are used , human life should be preserved wherever possible . Wounded persons must be given first aid , subject to the necessary security measures being taken , as soon as implementation of the police operation permits .

( CARDINAL ) Firearms must not be used against persons who appear , from their outward aspect , to be children , or when third parties might be endangered . If possible , firearms should not be used against juveniles [ ORG ] or female persons .

Under section CARDINAL(CARDINAL ) of the LAW , these provisions were also applicable to members of ORG .

Section CARDINAL of LAW , which came into force on DATE , and which replaced LAW DATE , provided :

“ ( CARDINAL ) The use of firearms is the most extreme measure entailing the use of force against the person . Firearms may be used only where resort to physical force [ körperliche GPE ] , with or without the use of mechanical aids , has been unsuccessful or holds out no prospect of success . The use of firearms against persons is permitted only where shots aimed at objects or animals have not produced the result desired .

( CARDINAL ) The use of firearms is justified to prevent the imminent commission or continuation of an offence [ PERSON ] which appears in the circumstances to constitute a serious crime [ Verbrechen ] . It is also justified in order to arrest a person strongly suspected of having committed a serious crime .

( CARDINAL ) The use of firearms must , in principle , be preceded by a shouted warning or warning shot , save where imminent danger may be prevented or eliminated only through targeted use of the firearm .

( CARDINAL ) Firearms must not be used when

– the life or health of third parties may be endangered ;

– the persons appear , from their outward aspect , to be children ; or

– the shots would impinge on the sovereign territory of a neighbouring ORG .

If possible , firearms should not be used against juveniles [ ORG ] or female persons .

( CARDINAL ) When firearms are used , human life should be preserved where possible . Wounded persons must be given first aid , subject to the necessary security measures being taken . ”

Under the legal provisions on the issue of passports and visas in the GPE ( LAW ( PERSON ) of DATE and LAW and Order on Passports and Visas of DATE , as supplemented by the Order of CARDINAL DATE ( PERSON und Pass- und QUANTITY . DATE , ergänzt durch die Anordnung vom CARDINAL . DATE ) ) , it was impossible until DATE , for persons who enjoyed no political privileges , had not reached retirement age or had not been exempted on account of certain types of urgent family business , to leave the GPE legally .

Under LAW DATE , no reasons had to be given before DATE for decisions on applications for permission to leave , and no appeal lay against such decisions until the Order on Visas of CARDINAL DATE was promulgated .

The United Nations International Covenant on Civil and Political Rights was ratified by the GPE on CARDINAL DATE ( see paragraph CARDINAL above ) .

The relevant provisions of the LAW are worded as follows .

“ CARDINAL . Every human being has the inherent right to life . This right shall be protected by law . No one shall be arbitrarily deprived of his life .

NORP In countries which have not abolished the death penalty , sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present LAW and to LAW . This penalty can only be carried out pursuant to a final judgment rendered by a competent court . ”

“ CARDINAL . Everyone shall be free to leave any country , including his own .

The above - mentioned rights shall not be subject to any restrictions except those which are provided by law , are necessary to protect national security , public order [ ordre public ] , public health or morals or the rights and freedoms of others , and are consistent with the other rights recognised in the present LAW . ”

NORP Before NORP reunification several members of ORG , which is charged under LAW with the task of ensuring that the Contracting Parties fulfil their obligations , expressed criticisms of the border - policing regime set up in the GPE .

The summary records of the ORG and PERSON meetings of ORG refer to the following comments , among other criticisms .

On DATE Sir PERSON , the NORP member of ORG , pointed out

“ [ that with ] respect to automatic weapons positioned along frontiers ... LAW authorised capital punishment ‘ only for the most serious crimes’ . An attempt to cross a frontier , even illegally , could in no case be considered a most serious crime . The killing of a person in such circumstances was simply a summary execution , without trial – a practice that was unjustifiable under LAW . ”

Sir PERSON also said

“ that ... he was not convinced that GPE was really complying with the provisions of LAW . Everyone had the basic freedom to leave his own country ; some restrictions were permitted by LAW , but on CARDINAL grounds only . The basic principle which determined whether or not persons might leave GPE was consistency with the rights and interests of that country ; that seemed unduly broad when compared to the provisions of LAW . ”

On DATE , the NORP member of ORG , said

“ that ... it seemed that the Government of GPE envisaged the possibility of restricting freedom of movement on grounds other than those provided for in LAW ” .

By Resolution CARDINAL , adopted in DATE , ORG put in place a procedure under which individuals could refer complaints to ORG , which was charged with investigating whether these complaints revealed the existence of a “ consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms ” .

On account of its restrictive policy on the freedom of movement , the GPE was repeatedly criticised under the LAW procedure for failure to comply with the general obligation to respect human rights enshrined in ORG CARDINAL § CARDINAL , CARDINAL and CARDINAL of LAW . Thus , in DATE , the GPE appeared in the list of countries to be examined under the LAW procedure , CARDINAL persons ( the number required for it to be possible to speak of a “ consistent pattern of gross violations ” ) had complained to ORG about the GPE ’s policy of holding its people captive . However , the GPE authorised some of the complainants to leave its territory , thus succeeding in bringing their number below CARDINAL and avoiding censure .

Article CARDINAL § CARDINAL of LAW ) provides :

“ An act shall not be punishable unless it has been so defined by law before it was committed . ”

Article CARDINAL of the FRG ’s Criminal Code ( “ the StGB ” ) prescribes a prison sentence of from DATE to life , in particularly serious cases , for intentional homicide ( Totschlag ) . LAW PERSON provides that the perpetrator of an offence is the person who committed it or who caused another to act in his place ( mittelbare PERSON ) .

The instrument of ratification of the Convention deposited by the NORP government on DATE included a reservation and a declaration worded as follows :

“ In conformity with LAW since the entry into force of LAW No . CARDINAL ] , the NORP ORG makes the reservation that it will only apply the provisions of LAW within the limits of LAW paragraph CARDINAL of LAW . This provides that any act is only punishable if it was so by law before the offence was committed .

The territory to which the Convention shall apply extends also to GPE . ”


Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE am GPE .

On DATE the applicant , by failing to grant the right of way , caused a traffic accident in which the driver of another car was injured .

On DATE ORG ( Bezirksgericht ) , having held the trial at which it heard the applicant , the victim and a motor vehicles expert , found the applicant guilty of negligently causing bodily harm ( LAW and CARDINAL of LAW ) and acquitted him of the charge of having abandoned the victim ( LAW ) . No appeals were made and the judgment became final .

On DATE PERSON ORG Bezirkshauptmannschaft ) issued a provisional penal order ( Strafverfügung ) finding the applicant guilty of having failed to stop after the traffic accident of CARDINAL DATE and of having failed to inform the next police station ( LAW CARDINAL ( a ) and CARDINAL in conjunction with LAW ( a ) of LAW ) . It imposed a fine of CARDINAL NORP schillings ( ORG – QUANTITY ) on him with TIME imprisonment in default .

The applicant raised an objection ( PERSON ) on DATE . He referred to the proceedings before ORG which were at that time still pending . Once these proceedings were terminated the applicant informed ORG accordingly , arguing that further administrative criminal proceedings against him relating to the same set of facts violated the ne bis in idem principle . He requested that these proceedings be discontinued .

On DATE ORG issued a penal order ( PERSON ) confirming its previous decision . It noted that , in contrast to the criminal proceedings before the courts , the conduct at stake was the failure to inform the police and not the failure to assist the victim .

The applicant appealed . Referring to the ORG 's judgment in GPE v. GPE ( DATE , Series A no . CARDINAL ) he asserted that the CARDINAL sets of proceedings were based on the same conduct . He further argued that his defence , which had been accepted in the court proceedings , was that he had not even noticed the accident . He explicitly waived his right to a hearing .

On DATE the ORG ( Unabhängiger Verwaltungssenat ) , without a hearing , dismissed the applicant 's appeal . It noted that the offence of abandoning the victim under LAW required intent , and therefore presupposed that the suspect was aware of having caused an accident in which a person had been injured . In contrast , negligence was sufficient for the commission of the offences under LAW CARDINAL ( a ) and CARDINAL of LAW . Had the applicant paid the required attention he would have noticed the accident . In coming to this conclusion , ORG had regard to the findings of the criminal court , namely that the applicant had noticed the approaching vehicle before turning to the left into the street . A diligent driver would therefore have been required to check in the rear mirror whether his manoeuvre had been safe .

NORP The applicant lodged a complaint with ORG ) on DATE . He submitted in particular that the conviction violated the ne bis in idem principle . Moreover , he alleged that ORG had applied an unconstitutional provision when fixing the sentence . On DATE ORG submitted its observations .

On DATE ORG quashed ORG decision . It found that it could not be excluded that , when fixing the sentence , ORG had applied a provision which had been declared unconstitutional by ORG judgment of DATE . That provision had excluded the application of LAW ( GPE ) in road traffic proceedings . That provision states that the statutory minimum fine may be reduced by CARDINAL , if the extenuating circumstances clearly outweigh the aggravating circumstances . This decision was served on the applicant 's counsel on DATE .

On DATE ORG , without a hearing , confirmed its previous decision . Fixing the sentence anew , it noted that even when applying LAW of the Code of Administrative Offences , the fine was commensurate to the applicants ' guilt .

The applicant lodged a complaint with ORG on DATE . He alleged a violation of the ne bis in idem principle . ORG submitted its observations on DATE .

On DATE ORG refused to deal with the complaint for lack of prospects of success . As to the applicant 's complaint under LAW No . CARDINAL it noted that the present case did not concern an example of a single act constituting CARDINAL offence ( kein Fall der Idealkonkurrenz ) .

On DATE ORG granted the applicant 's request to transfer the case to ORG ( Verwaltungsgerichtshof ) . The latter received that request on DATE .

The applicant supplemented his complaint on DATE . He reiterated his complaint about a violation of the ne bis in idem principle . Moreover , he complained that no oral hearing had been held in the second set of proceedings before ORG . Finally , he requested ORG to hold a hearing .

On DATE the applicant complaining about the length of the proceedings before ORG .

On DATE ORG , sitting in camera , refused to deal with the applicant 's complaint pursuant to LAW of LAW ( PERSON ) as the fine imposed did not exceed MONEY and the case did not raise an important legal issue .

NORP The decision was served on the applicant 's counsel on DATE .

Article CARDINAL § CARDINAL of LAW ) , provides as follows :

“ Anyone who fails to assist another person to whom , even if not unlawfully , he has caused bodily injury ... shall be liable to up to DATE imprisonment or CARDINAL DATE - fines . ”

Section CARDINAL of LAW ( Straßenverkehrsordnung ) reads as follows :

“ CARDINAL . All persons whose conduct at the scene of a traffic accident was causally related to the accident shall

( a ) if they are driving a vehicle , stop immediately ;

NORP If anyone has been injured in a traffic accident , the persons referred to in subsection CARDINAL above shall provide assistance ; if they are not capable of doing so , they shall arrange for assistance without delay . They shall further inform the nearest police station immediately . ”

Section CARDINAL § CARDINAL ( a ) of LAW in the version in force at the material time , provided that it was an administrative offence punishable by a fine of not less than ATS CARDINAL and not exceeding ORG CARDINAL or , in default of payment , by DATE to DATE imprisonment , for any driver having caused a traffic accident causing bodily injury to act contrary to LAW and CARDINAL .

Section CARDINAL § CARDINAL provides that proceedings shall not be instituted in respect of an administrative offence that is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts .

Section CARDINALe of the Code of Administrative Offences ( GPE ) , as far as relevant , reads as follows :

“ CARDINAL . NORP In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed , a hearing must only be scheduled if this is expressly requested in the appeal . ”


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG . He is represented before the ORG by Mr W. Burdenski , a lawyer practising in GPE . The respondent Government are represented by PERSON , PERSON , of ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant instigated divorce proceedings before the GPE / ORG ( ORG ) . The couple has CARDINAL children , born in DATE and DATE .

DATE the GPE ORG held a number of hearings .

During a hearing held on DATE the parties agreed that the issue of parental authority had been disposed of . However , the issues of alimony and equalisation of accrued assets remained controversial . The applicant lodged a request with ORG to sever these ancillary matters from the divorce proceedings pursuant to section CARDINAL § CARDINAL No . CARDINAL of the Code of Civil Procedure ( see Relevant domestic law , below ) . The applicant ’s wife opposed this request .

Following the hearing , ORG rejected the applicant ’s request and refused to issue a divorce decree before the settlement of the ancillary matters . It conceded that the divorce proceedings , which had already lasted DATE , had been extraordinarily lengthy . However , the applicant had not established that the length of the proceedings amounted to an unacceptable hardship . A date for a new hearing was scheduled for CARDINAL DATE . By letter of CARDINAL DATE the applicant ’s previous counsel indicated that he no longer represented him . The hearing was then postponed to DATE in response to the request of the applicant ’s new counsel in view of the extent of the case - file .

On DATE and CARDINAL DATE the applicant expanded his cross - action .

On DATE the applicant lodged a fresh request to sever the ancillary matters and to decree the divorce . He alleged that the length of the proceedings as such constituted an unacceptable hardship . It was preventing him from marrying his new partner and his psychological health had been ruined . He further alleged that the length of the proceedings was primarily imputable to his wife ’s conduct .

On DATE ORG held a hearing .

By a decision given in written proceedings on DATE , ORG submitted to the parties a proposal for a friendly settlement regarding alimony for the applicant ’s wife and children and distribution of accrued assets . The parties were granted a time - limit until DATE to make a statement on the settlement proposal , and until DATE on other aspects . The applicant was further informed that , for reasons of procedural efficiency , the severing of the ancillary matter could not be envisaged as long as it had not been established how to deal with the applicant ’s pension entitlement .

On DATE the applicant ’s wife rejected the settlement proposal .

By letter of DATE the applicant ’s counsel requested an extension of the time - limits for an indefinite period in view of extra - judicial settlement negotiations regarding all ancillary matters . The other party confirmed the settlement negotiations by letter of DATE .

On DATE ORG asked the parties’ counsels whether it was likely that the dispute would be disposed of by friendly settlement .

On DATE the applicant ’s counsel informed ORG that a response was not yet possible due to ongoing settlement negotiations .

In response to a status enquiry by ORG dated DATE the applicant ’s opponent ’s counsel replied on DATE that the applicant had not yet replied to his latest settlement proposal .

During a hearing in parallel proceedings which took place on CARDINAL DATE the parties confirmed that they continued to negotiate on an overall friendly settlement .

On DATE the applicant lodged an application with the ORG , complaining about the length of the divorce proceedings pending before ORG .

On DATE and CARDINAL DATE the ORG received friendly settlement declarations signed by the parties under which the applicant agreed to waive any further claims against GPE in respect of the facts giving rise to this application against an undertaking by the Government to pay him CARDINAL to cover any pecuniary and non - pecuniary damage as well as costs and expenses , will be free of any taxes that may be applicable and will be payable within DATE from the date of notification of the decision taken by the ORG pursuant to LAW . In the event of failure to pay this sum within the said DATE period , the Government undertake to pay simple interest on it , from expiry of that period until settlement , at a rate equal to the marginal lending rate of ORG during the default period plus CARDINAL percentage points . The payment will constitute the final resolution of the case as far as it regards the length of the divorce proceedings , pending before the GPE am FAC ( file no . CARDINAL F CARDINAL/CARDINAL - CARDINAL ) , until the date on which the parties conclude the friendly settlement .

On DATE the ORG decided to strike the application out of its list of cases pursuant to LAW .

Section CARDINAL of the Code of Civil Procedure provides that divorce proceedings as such and proceedings relating to alimony , partition of property , pension rights adjustments and custody – so called ancillary matters ( Folgesachen ) – have to be examined and decided in joint proceedings ( ORG ) .

Section CARDINAL § CARDINAL No . CARDINAL stipulates that the court may grant the divorce decree before deciding on an ancillary issue only if the joint decision would delay the decision on divorce to such an extraordinary extent that the delay would amount to an unacceptable hardship , even taking into account the importance of the ancillary matter .


The applicant , ORG , is a NORP national , born in DATE and living in GPE , GPE . In the proceedings before the ORG , the applicant is represented by PERSON , a lawyer practising in GPE , GPE . The respondent Government are represented by their Agent Mr PERSON , of ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

On CARDINAL DATE the ORG ( Sąd Rejonowy ) sentenced the applicant to DATE and QUANTITY months’ imprisonment . It deducted the period spent by the applicant in detention on remand from his sentence . In consequence , the applicant served that sentence during the following periods : from DATE to CARDINAL DATE ; from CARDINAL to DATE ; from DATE to CARDINAL DATE and from DATE to DATE .

On DATE the ORG ( PERSON ) released the applicant on probation for DATE . Shortly afterwards , the applicant asked the court to prolong his release for a further , unspecified term .

On DATE the applicant was arrested by the police on suspicion of having committed robbery . On DATE he was brought before ORG ( Prokurator Rejonowy ) , charged with robbery and detained on remand in view of the reasonable suspicion that he had committed the offence with which he had been charged . On DATE the ORG rejected his application for the prolongation of his release , on the ground that he had been remanded in custody on suspicion of having committed a new , serious offence .

On DATE ORG , on an appeal by the applicant , upheld the detention order of DATE and the reasons therefor .

On DATE the applicant made an application for release , submitting that his detention lacked any basis because the investigating prosecutor had not admitted evidence proposed by him . That application was dismissed by ORG on DATE and , on appeal , by ORG ( Prokurator Wojewódzki ) on DATE . The authorities held that there was a reasonable suspicion that the applicant had committed the offence in question and that his detention was necessary in order to ensure the proper conduct of the proceedings .

On DATE the applicant filed a subsequent application for release . It was dismissed on DATE by ORG and , on appeal , by ORG on DATE . The prosecutors at both instances considered that the grounds originally given for his detention were still valid .

On DATE ORG prolonged the applicant ’s pre - trial detention until DATE . On DATE the court extended his detention until DATE . Those decisions , on an appeal by the applicant , were upheld by ORG on DATE .

On DATE the applicant complained to the investigating prosecutor that correspondence he received from ORG was being opened and censored .

On DATE the ORG lodged a bill of indictment with ORG .

In the meantime , on an unspecified date , the applicant filed CARDINAL further applications for release . They were dismissed on DATE and DATE by ORG and on DATE by ORG ( Sąd Apelacyjny ) . The courts held that the serious nature of the offences with which he had been charged justified the continued detention .

On a later unknown date , the trial court granted the applicant ’s application for an officially - appointed lawyer .

On DATE ORG dismissed the applicant ’s subsequent application for release . That decision was upheld on appeal on DATE . The courts reiterated the previous grounds given for the applicant ’s detention .

On DATE ORG convicted the applicant as charged and sentenced him to DATE and CARDINAL months’ imprisonment , a fine and deprivation of his civic rights for DATE .

In the meantime , on an unspecified date , the applicant again asked the court to release him . The application was dismissed on DATE in view of the fact that his detention pending appeal was mandatory under LAW because the first - instance sentence exceeded CARDINAL years’ imprisonment .

On DATE ORG , on an appeal by the applicant , quashed the first - instance judgment and remitted the case .

On DATE the applicant ’s case was transferred to ORG because , under amendments to LAW , as from DATE a district court was competent to deal with such cases . The trial was held on CARDINAL and DATE .

On DATE the ORG convicted the applicant of robbery and sentenced him to DATE imprisonment , a fine and deprivation of his civic rights for DATE . The court deducted the period of the applicant ’s detention on remand from DATE and DATE from his sentence . The applicant appealed .

On DATE the applicant asked ORG to quash the order for his detention . The application was dismissed on DATE .

On DATE the ORG heard the applicant ’s appeal and upheld the first - instance judgment .

On DATE the applicant lodged a notice of a cassation appeal with ORG . On DATE he asked that court to appoint a lawyer for him in order to assist him in cassation proceedings . He submitted that he had no occupation and income , and that he could not bear the costs of his defence . He also stressed that under the relevant provisions of the Code of Criminal Procedure a cassation appeal had to be filed and signed by an advocate . On DATE the applicant made yet another application for legal assistance .

On DATE the court rejected the application , finding that the applicant had not proved that he could not afford legal assistance , namely , that the costs of legal assistance would entail a substantial reduction of his and his family ’s standard of living , as defined in LAW .

On DATE the applicant made a subsequent application for legal assistance . He submitted documentary evidence showing his difficult financial situation . On DATE ORG granted the application and , on DATE , appointed a lawyer for the applicant . On a later unknown date in DATE or DATE , the applicant ’s officially - appointed lawyer filed a cassation appeal .

On DATE ORG ( Sąd Najwyższy ) heard the appeal and rejected it as obviously lacking any basis .

At the material time the rules governing detention on remand were contained in LAW of the Law of DATE – Code of Criminal Procedure ( Kodeks postępowania karnego ) ( “ the Code ” ) – entitled “ Preventive measures ” ( NORP zapobiegawcze ) . The LAW is no longer in force . It was repealed and replaced by LAW DATE ( commonly referred to as the “ GPE Procedure ” ) , which entered into force on DATE .

Pursuant to LAW ( in the version applicable at the material time ) , the prosecutor was authorised to detain a suspect on remand , provided that such person had previously been charged and heard by that prosecutor .

At the relevant time the LAW set out CARDINAL different legal avenues whereby a detainee could challenge the lawfulness of his detention and obtain release : an appeal to a court against a detention order made by a prosecutor ; proceedings in which courts examined applications for prolongation of detention made by a prosecutor during an investigation ; and proceedings relating to the detainee ’s applications for release .

As regards the last of these , LAW provided the following :

“ An accused may at any time apply to have a preventive measure lifted or varied .

Such an application shall be decided by the prosecutor or , after the bill of indictment has been lodged , by the court competent to deal with the case , within a period not exceeding DATE . ”

Under LAW , an accused who had proved that he could not afford legal assistance ( i.e. that the costs of such assistance “ would entail a substantial reduction in his and his family ’s standard of living ” ) might apply to a court and ask to appoint him a defence counsel .

Article CARDINAL laid down the principle known as “ compulsory assistance of an advocate ” ( przymus adwokacki ) . That Article provided , in so far as relevant :

“ An accused must have a defence counsel [ of his own choice or officially appointed ] when a regional court is competent to deal with his case as a court of first instance . The counsel must take part in the main hearing ; he must also take part in any appellate hearing if the president of the court or the court itself has found this necessary . ”

Under LAW , the official appointment of a lawyer was valid as long as the proceedings lasted and , subject to explicit exceptions , an officially - appointed lawyer was also obliged to act on behalf of his client after the judgment became final . However , according to domestic practice which started after DATE ( the date on which a new cassation appeals procedure was introduced into the system of criminal justice ) , a lawyer had again to be officially appointed in cassation proceedings .

As from DATE , i.e. the date on which the relevant provisions of the PERSON of DATE on LAW to LAW and Other Criminal Statutes entered into force , a party to criminal proceedings might lodge a cassation appeal with ORG against any final decision of an appellate court which had terminated criminal proceedings .

Article CARDINALa § CARDINAL of the Code provided , in so far as relevant :

“ A cassation appeal may be lodged only on the grounds referred to in LAW [ these included a number of procedural irregularities , such as , for instance , incorrect composition of the trial court ; lack of legal assistance in cases where such assistance was compulsory ; breach of the rules governing jurisdiction in criminal matters ; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself , etc . ] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of such a breach . No cassation appeal may be directed against the disproportionality of the penalty imposed . ”

LAW stipulated :

“ CARDINAL . NORP Parties to criminal proceedings shall be entitled to lodge a cassation appeal .

A cassation appeal , which has been lodged by a party other than a prosecutor , shall be filed and signed by an advocate .

Notice of a cassation appeal must be lodged with the court which has given the [ relevant ] decision within DATE from the date on which such decision was pronounced . The appeal itself must be lodged within DATE from the date on which the decision , together with the reasons therefor , was served on the party concerned . ”

Under LAW , the court which gave the decision appealed against was competent to decide whether the formal requirements for a cassation appeal had been complied with . If an accused ’s appeal was not filed and signed by an advocate , it had to be rejected on formal grounds . If such an appeal complied with the formal requirements , the case was referred to ORG .

At the relevant time , under LAW of DATE ( NORP karny wykonawczy ) , all correspondence of a person detained on remand was censored , unless a prosecutor or a court decided otherwise . No provision of the Code provided for a remedy enabling a detainee to contest the manner or scope of the application of that measure ( see , for reference , PERSON v. GPE , no . CARDINAL , § DATE , DATE ) .


Violation of P1-1;Not necessary to examine under Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE ORG and Highways expropriated a plot of land belonging to the applicant in GPE in order to build a motorway . A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicant when the expropriation took place .

Following the applicant ’s request for increased compensation , on DATE ORG of First - instance awarded him additional compensation of MONEY ( TRL ) , plus interest at the statutory rate , applicable at the date of the court ’s decision , running from DATE , the date of transfer of the title - deeds .

On DATE ORG upheld the judgment of ORG of First - instance .

On DATE ORG and Highways paid the applicant GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL , interest included .

The relevant domestic law and practice are set out in the ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV ) .


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by Mr J. Tuutti , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

The police suspected the applicant ’s husband of an aggravated drugs offence . They obtained permission to place his telephone under secret surveillance .

On DATE the applicant phoned a third person , PERSON , requesting him to come over and bring along a bag containing items belonging to her husband . The police intercepted this conversation . The facts are not clear on whether the conversation was recorded or not but , at any rate , it was cited in the subsequent criminal complaint and included in the pre - trial investigation material .

By a letter dated DATE the applicant ’s husband lodged a complaint with ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) criticising the conduct of the police , in particular their use and handling of the information obtained through the surveillance .

The Deputy Ombudsman ( eduskunnan apulaisoikeusasiamies , riksdagens biträdande justitieombudsman , hereinafter “ the Ombudsman ” ) procured statements from ORG ( keskusrikospoliisi , centralkriminalpolisen ) and from Chief PERSON , who had been in charge of the investigation . In his decision of DATE , the ORG noted , in regard to the above - mentioned conversation between the applicant and PERSON , that permission to intercept a suspect ’s telephone conversations did not authorise the police to intercept conversations involving persons other than the suspect . In his view , this kind of conversation could not even be regarded as superfluous information and the interception should have been stopped as soon as it was evident that the conversation did not involve the suspect . He further noted that interception of telecommunications constituted an interference with the essence of the secrecy of communications protected under LAW .

The documents submitted to the ORG did not suggest that CARDINAL of the applicant ’s conversations with a person other than her husband had been intercepted . According to Chief Inspector A. , CARDINAL telephone conversation , that of DATE , was referred to in the pre - trial material and it was not included verbatim . The ORG stated that the police should not have intercepted the conversation between the applicant and PERSON Although the conversation had apparently not been very long , the interception seemed to have lasted longer than was acceptable , under the circumstances , to identify the persons speaking . Even if the conversation had not been recorded , its contents had been included in the pre - trial material in quite detailed terms either from memory or from notes . The information thus obtained was later used in the questioning of PERSON , who was suspected of a drugs offence . The ORG concluded that the interception of the conversation , having lasted longer than necessary , and the inclusion of its contents in the pre - trial material constituted an unlawful act .

The ORG found , however , that there was no reason to suspect that the act was anything other than a CARDINAL - off mistake . He also considered its impact quite trivial under the circumstances . However he stressed the importance of the principle at stake . He did not find it necessary to engage in investigating which police officer should be held accountable for the unlawful act . He considered it sufficient to express his opinion on the matter to Chief Inspector A. and to the head of ORG . This opinion was also to be forwarded , for future guidance , to the police officers who had been involved in the investigation in question .

The applicant did not resort to any other domestic remedies .

Under LAW , section CARDINAL of LAW ( pakkokeinolaki , tvångmedelslag , Act no . PERSON , as amended by Act no . CARDINAL/CARDINAL at the material time ) an authority investigating a crime may be granted permission to intercept and record telecommunications sent by the suspect using an extension in his possession or another extension presumably used by him or her , or telecommunications received through such an extension and directed to the suspect , if the information thus obtainable can be assumed to be of very great significance in solving the crime . According to LAW , sections CARDINAL and CARDINAL of the said LAW , the permission is granted by a competent court on the investigating authority ’s request for a limited period of time .

The LAW ( PERSON , PERSON grundlag , Act no . GPE ) provides in relevant parts :

Article DATE The right to privacy :

“ Everyone ’s private life , honour and the sanctity of the home are guaranteed . ...

The secrecy of correspondence , telephony and other confidential communications is inviolable . Measures encroaching on the sanctity of the home , and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime , may be laid down by an LAW . In addition , provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home , at trials and security checks , as well as during the deprivation of liberty may be laid down by an LAW . ”

Article DATE Official accountability :

“ A civil servant is responsible for the lawfulness of his or her official actions . ...

Everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public task shall have the right to request that the civil servant or other person in charge of a public task be sentenced to a punishment and that the public organisation , official or other person in charge of a public task be held liable for damages , as provided in more detail by an LAW . ... ”

Intentional and negligent breach of official duty are punishable acts LAW ( rikoslaki , strafflag , Act no . CARDINAL with later amendments ) . The statute of limitations for these offences is DATE . Intentional breach of official duty carries a maximum penalty of DATE of imprisonment , whereas negligent breach of official duty may only result in a reprimand or a fine .

According to sections CARDINAL , CARDINAL , DATE ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW ( esitutkintalaki , förundersökningslag , Act no . CARDINAL/CARDINAL with later amendments ) the investigating authority has to conduct a pre - trial investigation if there are reasons to suspect that a crime has been committed . During the investigation the police will clear up , inter alia , the offence , the circumstances thereof , the parties thereto , and possible damage caused by it . If the suspect is a police officer , the investigation is headed by a public prosecutor . After the investigation is completed the case is submitted to [ another ] public prosecutor for the consideration of charges .

Section CARDINAL of the said LAW no . CARDINAL , in force at the material time ) provided that , at the proposal of the head of the investigation , the prosecutor could order the pre - trial investigation not to be conducted or that it be interrupted , if he or she were to waive the charges , unless an important public or private interest required otherwise . This provision was replaced by LAW no . CARDINAL ) , which came into force on DATE and where the word “ interrupted ” was substituted by the word “ terminated ” .

According to LAW , section CARDINAL of LAW ( laki oikeudenkäynnistä rikosasioissa , lag om rättegång i brottmål , LAW . CARDINAL/CARDINAL ) the public prosecutor may decide not to prosecute where , inter alia , a penalty more severe than a fine is not anticipated for the offence and the offence is deemed of little significance in view of its detrimental effects and the degree of culpability of the offender manifested .

Prior to DATE , LAW , section CARDINAL ( CARDINAL ) of LAW further provided that the injured party could bring a charge for an offence only if the public prosecutor had decided not to prosecute . LAW applied to the right of the injured party to bring a charge for an offence in public office ( Act no . CARDINAL/CARDINAL ) . Since DATE the injured party has had the right to bring such charges also where the investigating authority or the prosecutor has decided not to conduct a pre - trial investigation or that an investigation shall be interrupted or terminated ( Act no . CARDINAL/CARDINAL ) .

Under LAW , LAW CARDINAL of LAW , a civil claim arising from the offence for which a charge has been brought may be heard in connection with the charge . If such a claim is lodged separately , the provisions on civil procedure apply .

LAW ( vahingonkorvauslaki , skadeståndslag , Act no . CARDINAL ) provides in relevant parts as follows :

LAW , section CARDINAL :

“ A public corporation shall be vicariously liable in damages for injury or damage caused through an error or negligence in the exercise of public authority . ...

However , the liability of the corporation referred to in paragraph ( CARDINAL ) arises only if the performance of the activity or task , in view of its nature and purpose , has not met the reasonable requirements set for it . ”

LAW , section CARDINAL :

“ An employee shall be liable in damages for injury or damage caused by him / her through an error or omission at work to an amount deemed reasonable in view of the extent of the injury or damage , the nature of the act , the status of the person causing the injury or damage , the needs of the person suffering the same , and other circumstances . If the negligence of the employee has been merely slight , he / she shall not be rendered liable in damages . ...

If the injury or damage has been caused deliberately , full damages shall be awarded unless it is deemed that there are special reasons for reducing the damages . ... ”

LAW , LAW ( as amended by LAW no . CARDINAL/CARDINAL ) :

“ A public official shall be liable for damages for injury or damage caused by him / her through an error or omission at service in accordance with the provisions in LAW chapter . ”

LAW , section CARDINAL :

“ The provisions of this LAW on personal injury apply also to damages for the anguish arising from an offence against liberty , honour or the domestic peace or from another comparable offence . ”

As to the domestic practice in civil proceedings , reference is made , by way of example , to the following ORG precedents where the ORG has been found liable in damages for the misconduct of the police or other authorities : ORG , GPE and KKO:CARDINAL:CARDINAL .

According to LAW ( laki eduskunnan oikeusasiamiehestä , lag om riksdagens justitieombudsman , Act no . CARDINAL/CARDINAL ) , which came into force on DATE , the ORG shall oversee the legality of the actions of authorities . Anyone who thinks that an authority has acted unlawfully or neglected a duty in the performance of their task , may lodge a complaint with the ORG . He or she shall investigate the complaint if there is reason to suspect an unlawful act or negligence in the performance of official duties . The ORG may order that a pre - trial investigation be carried out in order to clarify a matter under his or her investigation . If the ORG concludes that a subject of his or her supervision has acted unlawfully or neglected a duty , he may initiate criminal or disciplinary proceedings or , if such measures are considered unwarranted in a particular case , issue a reprimand to the subject for future guidance . If necessary , the ORG may express to the subject his or her opinion of proper observance of the law , or draw the subject ’s attention to the requirements of good administration or to considerations of fundamental and human rights . The ORG may also issue a recommendation to the competent authority that an error be redressed or a shortcoming rectified ( sections CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) , CARDINAL and DATE ( CARDINAL ) ) . The LAW substituted in relevant parts the previous Rules of Procedure of ORG ( eduskunnan oikeusasiamiehen johtosääntö , instruction för riksdagens justititieombudsman , no . CARDINAL ) , which had entered into force on DATE .