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THE FACTS

The applicant, Ludwig Glässner, is a German national, who was born in 1928 and lives in Berlin . From 1964 to 1994 he was a public prosecutor ( Staatsanwalt ), working under the authority of the Principal State Prosecutor ( Generalstaatsanwalt ) of the German Democratic Republic (GDR). He was represented before the Court by Mr Buchholz, a lawyer practising in Berlin.

A. The circumstances of the case

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

1. Background to the case and proceedings before the courts of the GDR

In 1977 the East German dissident Rudolf Bahro published a book inspired by the events of the Prague Spring of 1968 entitled “The Alternative – A Critique of Socialism as it Actually Exists” ( Die Alternative – Zur Kritik des real existierenden Sozialismus ), in which he advocated a number of reforms with a view to setting up an ideal communist system and criticised the GDR’s party apparatus. In September 1977 the book was published in the Federal Republic of Germany (FRG).

In 1975 he had written a thesis on “Employment conditions of scientifically trained management staff in the industry of the GDR” ( Einsatzbedingungen wissenschaftlich ausgebildeter Kader in der Industrie der DDR) , for which he had collected comments from some fifty graduates on their conditions of employment in industry. In January 1977 the technical university he was attending rejected Mr Bahro’s thesis and so he attempted to publish it in the FRG.

On 23 August 1977 Mr Bahro was arrested and the next day he was remanded in custody.

On 14 June 1978 the trial opened before the Berlin City Court ( Stadtgericht ), which had jurisdiction over political offences. In his submissions as prosecutor the applicant recommended, on behalf of the Principal State Prosecutor, that Mr Bahro be sentenced to nine years’ imprisonment for “repeated offences or attempted offences of intelligence gathering” ( mehrfacher, teils versuchter Verbrechen der Nachrichtensammlung ), pursuant to Article 98 §§ 1 and 2 of the former GDR’s Criminal Code, and betrayal of secrets ( Geheimnisverrat ), pursuant to Article 245 § 1 of the GDR’s Criminal Code.

In a judgment of 30 June 1978 the Berlin City Court convicted Mr Bahro of “gathering, imparting and attempting to impart intelligence” ( Sammlung, Übermittlung und versuchter Übermittlung von Nachrichten ) and “betrayal of secrets” ( Geheimnisverrat ) and sentenced him to eight years’ imprisonment in accordance with Articles 98 §§ 1 and 2 and 245 § 1 of the GDR’s Criminal Code (see Relevant domestic law and practice below).

On 7 July 1978 Mr Bahro’s lawyer, Mr Gysi, appealed against that judgment.

In his submissions, the applicant asked the Supreme Court ( Oberstes Gericht ) to dismiss Mr Bahro’s appeal.

In a decision of 1 August 1978 the Supreme Court declared Mr Bahro’s appeal manifestly ill-founded ( offensichtlich unbegründet ) and upheld the judgment at first instance.

Mr Bahro was granted an amnesty on the occasion of the thirtieth anniversary of the founding of the GDR and released on 11 October 1979. The applicant had recommended that he should be released.

On 15 June 1990, in anticipation of the approaching reunification of the two German States, the Presiding Committee ( Präsidium ) of the Supreme Court set aside the Berlin City Court’s judgment of 30 June 1978 and the Supreme Court’s judgment of 1 August 1978 and acquitted Mr Bahro because his conviction for “intelligence gathering” and “betrayal of secrets” had been unjustified.

2. Proceedings before the German courts after reunification

On 5 April 1996 the Berlin Regional Court ( Landgericht ) sentenced the applicant to one year and three months’ imprisonment, suspended, for aiding and abetting a deliberate perversion of the course of justice ( Beihilfe zur Rechtsbeugung ), pursuant to Article 244 of the GDR’s Criminal Code, taken together with Article 336 of the FRG’s Criminal Code, and aiding and abetting a deprivation of liberty ( Beihilfe zur Freiheitsberaubung ), pursuant to Article 131 § 1 of the GDR’s Criminal Code, taken together with Article 239 § 1 of the FRG’s Criminal Code. It also convicted one of the judges of the GDR’s Supreme Court who had taken part in drawing up the decision of 1 August 1978.

The Regional Court began by reiterating the general principles that are applicable to prosecutions of former members of the GDR’s national legal service. Both judges and prosecutors are liable to prosecution since the offences of deliberate perversion of the course of justice ( Rechtsbeugung ) and deprivation of liberty ( Freiheitsberaubung ) are expressly defined both by Articles 336 and 239 § 1 of the FRG’s Criminal Code and by Articles 244 and 131 § 1 of the GDR’s Criminal Code (see Relevant domestic law and practice below). In accordance with the principles on the application of criminal law in Germany after the reunification for offences committed in the GDR before the reunification (see Relevant domestic law and practice below), the Regional Court applied the relevant provisions of the GDR’s Criminal Code at the material time.

In respect of the first offence of which the applicant was accused, namely aiding and abetting a deliberate perversion of the course of justice, the Regional Court, having regard to the principle that the criminal law is not to be applied retrospectively, pointed out that the only acts which were reprehensible were those which, while taking account of the relevant legal provisions applicable in the GDR and the values on which that State was based, were found to be manifestly arbitrary ( offensichtliche Willkürakten ) and in breach of human rights. According to the case-law of the Federal Court of Justice ( Bundesgerichtshof ), three types of case might arise – those in which the elements constituting the offence ( Straftatbestände ) were exaggerated ( überdehnt ), those in which the sentence was intolerably disproportionate ( in einem unerträglichen Missverhältnis ) to the offence committed and finally those in which the proceedings had flagrantly infringed human rights.

In the instant case, the Regional Court considered that, in the light of the methods of interpretation ( Auslegungsmethoden ) that had existed in the GDR, the offences of which Mr Bahro had been accused could just conceivably be regarded as “intelligence gathering” and “betrayal of secrets” as defined in Articles 98 and 245 of the GDR’s Criminal Code. On the other hand, it found that the sentence imposed on Mr Bahro by the Supreme Court of the GDR had been totally at variance with the principle of proportionality which had also formed part of the GDR’s law. Even though the sentence had still been formally within the limits set by statute ( innerhalb des gesetzlichen Strafrahmens ), the judgment of 30 June 1978 flagrantly infringed the sentencing rules ( Strafzumessungsgrundsätze ) laid down in Article 61 § 2 of the GDR’s Criminal Code (see Relevant domestic law and practice below).

In its judgment the City Court had found Mr Bahro guilty of supporting those who had sought to overthrow the socialist system for over ten years through his offences, whereas it had previously found that Mr Bahro’s conduct prior to 1976 had not been criminal and it could not therefore legitimately argue that his conduct before that date had increased his guilt. The City Court had also held that Mr Bahro had taken advantage of his position and industrial workers’ trust in him to extort information from them. However, when taking evidence, the City Court had failed to establish what kind of information Mr Bahro had extorted in this way.

The Regional Court also pointed out, with reference to a commentary on the GDR’s Criminal Code published by its Ministry of Justice in 1969, that the consequences and adverse effects of the offence should be decisive for the fixing of the sentence. But the City Court had declared that the book published by Mr Bahro contained information that could be used with the assistance of enemy intelligence services to promote measures that would damage the economy ( Nachrichten, die geeignet seien, wirtschaftschädigende Massnahmen mit Hilfe der gegnerischen Nachtrichtendienste zu unterstützen ) and that the information contained in his thesis could have been used for “ideological diversion” ( ideologische Diversion ), whereas it was not at all clear how Mr Bahro’s book could have led to such consequences or that it had done so, and the same was true where so-called “ideological diversion” was concerned.

The Regional Court also criticised the City Court for having failed to take any account of the many extenuating circumstances which weighed in Mr Bahro’s favour. It had taken absolutely no account of the fact that Mr Bahro had acknowledged the objective facts, that he had been acting in a noble cause, namely to propose reforms to the socialist system, not to support its enemies, that until that date his conduct in the GDR had been irreproachable and above all that he had never been prosecuted before.

The Regional Court accordingly held that the sentence imposed on Mr Bahro had been patently disproportionate and an intolerable arbitrary act ( unerträglicher Willkürakt ). Its aim had not been to achieve justice (Article 86 of the Constitution of the GDR) but to silence a brave critic of the regime maintained by the Socialist Unity Party ( Sozialistische Einheitspartei Deutschlands – “the SED”) under the guise of a criminal trial. Consequently, Mr Bahro’s imprisonment had also been a breach of the law because it had been based on a judgment obtained by a deliberate perversion of the course of justice.

As to the applicant’s role, the Regional Court pointed out in the first place that it was not the indictment ( Anklage ) itself that was at issue, since the legal classification of the offences of which Mr Bahro had been accused had still been just within the bounds of acceptability; it was in fact the sentence recommended by the applicant ( Strafantrag ) in his submissions of 28 June 1978 against Mr Bahro during the hearing before the City Court, which had amounted to the offences of aiding and abetting a deliberate perversion of the course of justice and deprivation of liberty. While acknowledging that it was not the applicant, via his submissions, who had given the judges the idea ( auf die Idee gebracht ) of convicting Mr Bahro, the Regional Court held that he had considerably assisted them in that task because the judges were bound to reply to his submissions under the relevant provisions of the GDR’s Code of Criminal Procedure and their findings in the instant case had been largely based on those submissions.

Consequently, the Regional Court considered that in sentencing Mr Bahro to eight years’ imprisonment – a sentence that was flagrantly disproportionate to his guilt, as the City Court judges knew – the judges had been guilty of a deliberate perversion of the course of justice and deprivation of liberty. Because of the harshness of the sentence he had asked the court to impose on Mr Bahro , the applicant, who knew the law of the GDR very well by virtue of his function, had deliberately and knowingly assisted the judges in making the decision that had perverted the course of justice and resulted in the deprivation of Mr Bahro’s liberty. By recommending before the Supreme Court that Mr Bahro’s appeal be dismissed, the applicant had also assisted the judges of the Supreme Court in their task.

Lastly, the Regional Court found that the defendant’s conviction was ruled out neither by the amnesties granted by the GDR at the material time nor because it was time-barred.

The Regional Court applied Article 82 of the GDR’s Criminal Code, which set a limitation period of eight years for a deliberate perversion of the course of justice since that offence carried a maximum penalty of five years’ imprisonment (under Article 22 of the GDR’s Criminal Code, the extent of a person’s criminal responsibility for aiding and abetting ( Beihilfe ) depends on the offence committed). It also applied Article 83 (2) of the GDR’s Criminal Code, under which there is a suspension ( Ruhen ) of the running of time where, “for another legal reason” ( aus einem anderen gesetzlichen Grund ), criminal proceedings cannot be brought; in so doing, it referred to the Federal Court of Justice’s established case-law on the subject (see Relevant domestic law and practice below).

To determine the length of the sentence to be imposed on the applicant, the Regional Court also applied the criminal law of the GDR that had been applicable at the material time (because it was more lenient than that of the FRG) and took account of a number of extenuating circumstances in the applicant’s favour.

In a decision of 26 November 1997 the Federal Court of Justice ( Bundesgerichtshof ) dismissed an appeal by the applicant.

On 28 July 1998, the Federal Constitutional Court ( Bundesvefassungsgericht ), sitting as a three-member panel, refused to examine an appeal by the applicant.

B. Relevant domestic law and practice

Under Article 315 of the Introductory Act to the FRG’s Criminal Code ( Einführungsgesetz ins Strafgesetzbuch ), taken together with Article 2 of the Code itself, offences committed inside the territory of the GDR prior to the entry into force of the Unification Treaty (on 3 October 1990) are in principle judged under the more lenient criminal law applicable at the material time if there were equivalent criminal provisions in the FRG and the GDR.

The relevant provisions of the GDR’s Criminal Code at the material time provided as follows.

1. The provisions on which Mr Bahro’s conviction in the GDR was based

Article 89 of the GDR’s Criminal Code provided, inter alia , that anyone who allowed himself to be recruited by a foreign power, secret services or a foreign organisation for the purposes of gathering, disclosing or imparting secret information prejudicial to the GDR’s interests should also be convicted of espionage under Article 97, which stated that the penalty for espionage was at least five years’ imprisonment.

Article 245 § 1 of the GDR’s Criminal Code provided, inter alia , that anyone divulging secret documents or intelligence to unauthorised third parties was liable to a term of imprisonment of up to two years.

2. The provisions on which the applicant’s conviction in the FRG after reunification was based

Article 244 of the GDR’s Criminal Code defined the offence of deliberate perversion of the course of justice ( Rechtsbeugung ). It stated, inter alia , that judges or prosecutors who deliberately showed bias for or against a defendant during a trial or investigation were liable to a maximum of five years’ imprisonment.

Article 131 § 1 of the GDR’s Criminal Code defined the offence of deprivation of liberty ( Freiheitsberaubung ).

In its judgment of 5 April 1996 the Berlin Regional Court also referred to Article 61 of the GDR’s Criminal Code, which laid down the rules on sentencing ( Strafzumessungsgrundsätze ). Article 61 provided among other things, in paragraph 2, that when deciding on the severity of the sentence, regard should be had both to the objective and subjective circumstances of the offence and to its consequences. Account also had to be taken of the offender’s character, his social conduct before and after the offence and the causes and circumstances of the offence. It was particularly important to ascertain whether the offender had learnt the lessons of any previous conviction. Lastly, courts were also under an obligation to have regard to any extenuating or aggravating circumstances for the offender.

3. Human rights law applicable in the GDR at the material time

The relevant provisions of the 1974 Constitution provided:

Article 8

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

Article 19 § 2

“Respect for and protection of the dignity and liberty of the person ( Persönlichkeit ) are required of all State bodies, all forces in society and every citizen.”

The first chapter of the Special Part ( Besonderer Teil ) of the 1974 Criminal Code, entitled “Crimes against the national sovereignty of the German Democratic Republic, peace, humanity and human rights”, included the following introduction:

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

Article 95 of the Criminal Code was worded as follows:

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

Article 84 of the Criminal Code provided:

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

4. Article 83 of the GDR’s Criminal Code and the case-law of the Federal Court of Justice of the FRG concerning limitation

Article 83 of the GDR’s Criminal Code made provision for the suspension ( Ruhen ) of the running of time for the purposes of the limitation of prosecution in the following cases:

“1. as long as the offender remains outside the territory of the GDR;

2. as long as criminal proceedings cannot be brought or continued because the offender is seriously ill or for another legal reason ( aus einem anderen gesetzlichen Grund );

3. as long as criminal proceedings cannot be brought or continued pending the outcome of another set of proceedings;

4. once the court has decided to commence the trial.”

In accordance with its settled case-law, the Federal Court of Justice has held that the deliberate refusal of the GDR’s authorities and its single party to prosecute where there had been deliberate perversions of the course of justice, even where those offences were punishable under the GDR’s written law, constituted “another legal reason” entailing a suspension of the limitation period (see Federal Court of Justice, criminal cases, Reports of decisions no. 40, pp. 48 et seq. and pp. 113 et seq., Reports of decisions no. 41, pp. 317 et seq., and the decision of 26 April 1995 published in the Neue Juristische Wochenzeitschrift , pp. 2861 et seq.).

This case-law had existed since the 1950s in Germany, when it had been applied to the crimes committed under National Socialist rule (see the Federal Constitutional Court’s decision of 18 September 1952, Reports of decisions no. 1, pp. 418 et seq., and the Federal Court of Justice’s decisions in criminal cases of 28 May 1963 and 29 October 1969, Reports of decisions no. 18, pp. 367 et seq. and no. 23, pp. 137 et seq., respectively).

Section 1 of the Law of 26 March 1993 on the suspension ( Ruhen ) of limitation in respect of injustices committed under the SED regime of the Socialist Unity Party, known as the Limitation Act, ( Gesetz über das Ruhen der Verjährung bei SED-Unrechtstaten - Verjährungsgesetz ), which complements this case-law, provides as follows:

“When calculating the limitation period for the prosecution of acts committed under the unjust regime of the Socialist Unity Party ( SED-Unrechtsregime ) which, in accordance with the express or implicit wishes of the State authorities or the single party of the former GDR, were not prosecuted for political reasons or reasons contrary to the fundamental principles of a liberal constitutional system ( freiheitliche rechtsstaatliche Ordnung ), the period between 11 October 1949 and 2 October 1990 shall not be taken into account. During this period limitation was suspended.”

C. The International Covenant on Civil and Political Rights

The United Nations International Covenant on Civil and Political Rights was ratified by the GDR on 8 November 1974.

Article 14 § 1 of the Covenant provides:

“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, ... everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ...”

COMPLAINTS

According to the applicant, his conviction by the German courts after the reunification was contrary to the principle, set out in Article 7 § 1 of the Convention, that criminal laws cannot be retroactive, as he had acted in accordance with the statutory provisions that were applicable in the GDR at the material time.

THE LAW

According to the applicant, his conviction by the German courts after the reunification was contrary to the principle that criminal laws cannot be retroactive, as established in Article 7 § 1 of the Convention, which provides:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The Government maintained that the applicant’s conviction satisfied the requirements of Article 7 § 1 of the Convention because the German Courts had not applied the criminal law of the GDR in an arbitrary manner. In calling for Mr Bahro to be sentenced to nine years’ imprisonment, the applicant had committed an arbitrary act that was unacceptable even in the light of the GDR’s interpretation methods and whose sole aim had been to silence a brave critic of the SED regime. During political trials, it had been the prosecutor who had really been in charge of the proceedings and the judges had had little margin for manoeuvre with regard to the sentences he recommended. Besides this, the aim of Article 7 could not be to protect someone who had flagrantly infringed the principle that the penalty must be proportionate to the crime, as this principle was a value common to all civilised nations ( Allgemeingut aller zivilisierten Völker ). On the matter of limitation, the Government submitted that limitation did not generally fall within the scope of Article 7 § 1 since it merely established the period during which a person could be prosecuted and had no bearing on the guilt of the defendant. Even if the question of limitation did fall within the scope of Article 7 § 1, that provision had not been breached in the instant case because the limitation period had not elapsed – the running of time had merely been suspended until 1990, when the first democratic elections had been held in the GDR.

In reply, the applicant submitted that, at the material time, he had acted in accordance with the legal provisions which were applicable in the GDR, both as far as the classification of the offence and as far as the length of the sentence recommended for Mr Bahro were concerned. The German courts had made an ex post facto interpretation of Article 244 of the GDR’s Criminal Code in accordance with current interpretation methods in the FRG but contrary to those that existed at the material time in the GDR. Under the GDR’s criminal law, deliberate perversion of the course of justice presupposed deliberate intent to break a written law and the offence could not be made out by means of other principles of interpretation, as the German courts had done for political reasons thus deliberately and persistently infringing Article 7 § 1. At the material time the recommended sentence was in accordance with the principle of socialist justice set out in Article 61 § 1 of the GDR’s Criminal Code. The applicant submitted moreover that the limitation period of eight years set by Article 82 of the GDR’s Criminal Code had elapsed even before the GDR was absorbed by the FRG, meaning that there had been no right to prosecute after that date.

1. General principles

The Court observes that while it is its duty, according to Article 19 of the Convention, to ensure the observance of the engagements undertaken by the Contracting States in the Convention, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.

Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law.

Furthermore, it is legitimate for a State governed by the rule of law to bring criminal proceedings against persons who have committed crimes under a former regime; similarly, the courts of such a State, having taken the place of those which existed previously, cannot be criticised for applying and interpreting the legal provisions in force at the material time in the light of the principles governing a State subject to the rule of law.

The Court reiterates that from the viewpoint of Article 7 § 1, however clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation and there will always be a need for elucidation of doubtful points and for adaptation to changing circumstances (see the S.W. and C.R. v. the United Kingdom judgments of 22 November 1995, Series A nos. 335 ‑ B and 335-C, pp. 41-42, §§ 34-36, and pp. 68-69, §§ 32-34, respectively). Admittedly, that concept applies in principle to the gradual development of case-law in a given State subject to the rule of law and under a democratic regime, factors which constitute the cornerstones of the Convention, as its preamble states, but it remains wholly valid where, as in the present case, one State has succeeded another (see, as the most recent authority, Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, §§ 49 and 81-82, ECHR 2001-..., and K.H.-W. v. Germany [GC], no. 37201/97, §§ 44 and 84-85, ECHR 2001-...).

2. Application of the above principles to the present case

In the light of the above principles, the Court observes that it is not its task to rule on the applicant’s individual criminal responsibility, that being primarily a matter for the assessment of the domestic courts, but to consider, from the standpoint of Article 7 § 1 of the Convention, whether the applicant’s act, at the time when it was committed, constituted an offence defined with sufficient accessibility and foreseeability by the law of the GDR.

The Court notes that the Berlin Regional Court convicted the applicant of aiding and abetting a deliberate perversion of the course of justice on the basis of Article 244 of the GDR’s Criminal Code, taken together with Article 336 of the FRG’s Criminal Code, and of aiding and abetting a deprivation of liberty on the basis of Article 131 § 1 of the GDR’s Criminal Code, taken together with Article 239 § 1 of the FRG’s Criminal Code. In particular, it found that the applicant, in his capacity as public prosecutor in the former GDR during the trial of a famous East German dissident in the 1970s, had knowingly called for a manifestly disproportionate sentence (nine years’ imprisonment) in relation to the offence committed (the publication of a book proposing reforms to the socialist regime and the preparation of a thesis on employment conditions in industry), even when regard was had to the rules on sentencing applicable under the GDR’s law at the material time.

The Court considers that the Regional Court’s application and interpretation of Articles 244 and 131 § 1 of the GDR’s Criminal Code were not arbitrary in the present case.

In its judgment of 1996 the Berlin Regional Court began by examining in great detail the grounds for the Berlin City Court’s 1978 judgment, taking account of the particular context of the GDR and applying the rules on sentencing in force in the GDR at the material time. Having referred, inter alia , to the Constitution of the GDR, the rules on sentencing laid down in Article 61 § 2 of the GDR’s Criminal Code (see Relevant domestic law and practice above) and a commentary on the GDR’s Criminal Code by its Ministry of Justice, the Regional Court came to the conclusion that the sentence imposed on Mr Bahro had been an intolerable arbitrary act which flagrantly infringed the GDR’s sentencing rules.

The Regional Court then conducted a thorough analysis of the exact role of the applicant in his function as public prosecutor and the impact that his submissions had had on the decisions of the Berlin City Court and the Supreme Court in the instant case.

It was true that the applicant had not participated directly in the decision and that was why he had been charged only with aiding and abetting a deliberate perversion of the course of justice and deprivation of liberty for having assisted the judges in reaching their decision. The Regional Court did nonetheless consider that, in view of the function he performed and his knowledge of the GDR’s criminal law, the applicant must have known that, in calling for nine years’ imprisonment for Mr Bahro, who, for worthy reasons, had published a book proposing reforms to the socialist regime and a thesis on employment conditions in industry and who had a faultless record and had never been prosecuted before, he was flagrantly contravening the principle of proportionality laid down in the Constitution of the GDR and the rules on sentencing set out in Article 61 § 2 of the GDR’s Criminal Code.

In that connection, it should also be pointed out that the parliament of the GDR democratically elected in 1990 had expressly requested the German legislature to ensure that criminal prosecutions would be brought in respect of the injustices committed by the SED. That makes it reasonable to suppose that, even if the reunification of Germany had not taken place, a democratic regime taking over from the SED regime in the GDR would have applied the GDR’s legislation and prosecuted the applicant, as the German courts did after reunification (see the Streletz, Kessler and Krenz and K.-H. W. judgments cited above, §§ 84 and 87 respectively). Having regard to all of the above considerations, the Court considers that at the time when it was committed the applicant’s act constituted an offence defined with sufficient accessibility and foreseeability in GDR law.

3. The question of limitation

With regard to the limitation period, the Court notes that the Regional Court found that the offences of which the applicant stood accused were not time-barred under the Federal Court of Justice’s established case-law, to the effect that the refusal of the GDR State authorities and its single party to prosecute where there had been deliberate perversions of the course of justice, even where those offences were punishable under the GDR’s written law, constituted “another legal reason” within the meaning of Article 83 (2) of the GDR’s Criminal Code entailing a suspension of the limitation period. This case-law was complemented by the Limitation Act of 26 March 1993, the first section of which provided that the running of time for the purposes of limitation was to be suspended for “acts committed under the unjust regime of the Socialist Unity Party”.

The Court considers it pointless in this instance to decide whether that case-law, as complemented by the Act of 26 March 1993, satisfies the requirements of Article 7 § 1 because it notes that the offence of which the applicant was accused was not subject to limitation under the law of the GDR.

The prison sentence called for by the applicant in his role as public prosecutor and imposed by the GDR’s Berlin City Court on Mr Bahro was so disproportionate and arbitrary as to amount to a flagrant violation of human rights, in particular the right to a fair hearing in a criminal matter.

The Court points out in that connection that both Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the Convention guarantee the right to a fair hearing by an independent and impartial tribunal.

The GDR had ratified the Covenant in 1974 and, under Articles 8 and 19 § 2 of its Constitution, the rules of public international law were binding on the State authorities and every citizen and also therefore on prosecutors and judges. In addition, Article 95 of the GDR’s Criminal Code provided that anyone whose conduct violated human rights was to be held criminally responsible.

It follows that the offence of which the applicant stood accused was not subject to limitation under Article 84 of the GDR’s Criminal Code, as it amounted to an infringement of human rights, and more specifically of the right to a fair hearing in a criminal matter.

4. Conclusion

Having regard to all of the above considerations, the principle that only the law can define a crime and prescribe a penalty, as set out in Article 7 § 1, has been observed in the instant case.

It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court by a majority,

Declares the application inadmissible.