Information Note on the Court’s case-law 31

June 2001

Glässner v. Germany (dec.) - 46362/99

Decision 28.6.2001 [Section IV]

Article 7

Article 7-1

Nullum crimen sine lege

Conviction of East German public prosecutor in respect of his submissions during the trial of a dissident: inadmissible

The treaty of reunification between East and West Germany provided that offences committed in the former German Democratic Rep ublic (GDR) would be dealt with under GDR criminal law as it had stood at the material time, save where the equivalent provisions of FRG law were less severe. In 1996 the applicant, a former public prosecutor in the GDR, was sentenced to twelve months’ imp risonment, three of them suspended, for (among other things) deliberately asking for an excessively harsh sentence to be passed on a dissident in 1978. The applicant was convicted pursuant to both FRG and GDR criminal-law provisions under which it was an o ffence deliberately to aid and abet a violation of the law and to aid and abet depriving a person of his liberty. Before the Court he relied on the principle that the criminal law should not have retrospective effect, arguing, firstly, that the submissions on sentence he had made in 1978 had been based on the law as it stood in the GDR at the time and, secondly, that the provisions of the GDR Criminal Code on which his own conviction had been based had been given an interpretation contrary to the one prevai ling at the material time.

Inadmissible under Article 7: It was legitimate for a State to bring criminal proceedings against persons who had committed crimes under a former regime; the courts of such a State, having taken the place of those which existed p reviously, could not be criticised for applying and interpreting the legal provisions in force at the material time in the light of the principles governing a State based on the rule of law. In the instant case the Regional Court’s application and interpre tation of the provisions of the GDR Criminal Code on which the applicant’s conviction was founded had not been arbitrary in any way. In addition, the GDR parliament which had been democratically elected in 1990 had expressly requested the German legislatur e to ensure that criminal proceedings were brought in respect of the injustices committed by the Socialist Unity Party. It was therefore reasonable to suppose that, even if the reunification of Germany had not taken place, a democratic regime taking over f rom the Socialist Unity Party regime in the GDR would have applied the GDR’s legislation and prosecuted the applicant, as the German courts had done after reunification. Consequently, at the time when they were committed the applicant’s acts had constitute d an offence which was defined with sufficient accessibility and foreseeability in GDR law.

With regard to the limitation period, the court dealing with the case had noted that, in the light of the Federal Court of Justice’s established case-law, the offen ces of which the applicant stood accused were not time-barred. The Federal Court of Justice had held that the GDR authorities’ refusal to prosecute where there had been deliberate breaches of the law meant that limitation was suspended in respect of the of fences in question. Such findings had been supplemented by the Limitation Act of 26 March 1993, section 1 of which provided for the suspension of limitation in respect of “acts committed under the unjust regime of the Socialist Unity Party”. In the instant case there was no need to determine whether that case-law, combined with the Limitation Act, satisfied the requirements of Article 7, because the offence for which the applicant was prosecuted had not been subject to limitation under GDR law. The prison s entence recommended by the applicant in his capacity as a public prosecutor and imposed by the GDR courts had been disproportionate and arbitrary, and had consequently amounted to a blatant violation of the right to a fair trial. In 1974 the GDR had ratifi ed the International Covenant on Civil and Political Rights, which safeguarded the right to a fair hearing by an independent and impartial tribunal. Furthermore, Article 95 of the GDR Criminal Code provided that any person whose conduct violated human righ ts was to be held criminally liable. The offence for which the applicant had been prosecuted had therefore not been subject to limitation, by virtue of Article 84 of the GDR Criminal Code, in that it had constituted a breach of the right to a fair hearing in a criminal matter.

In conclusion, the principle that only the law can define a crime and prescribe a penalty had been observed in this case: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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