PARTLY DISSENTING OPINION OF JUDGE PELLONPÄÄ, JOINED BY JUDGE ZUPANČIČ

I voted against the majority’s conclusion that there had been no violation in the present case but in favour of that conclusion in the case of Streletz, Kessler and Krenz v. Germany that was also decided today. It is a somewhat curious consequence of the complexities of recent German history that the very same reasons which speak in favour of not finding a violation in the case of the three political leaders in part support the opposite conclusion in the K.-H. W. case. While the applicants Streletz, Kessler and Krenz are among those responsible for the former GDR’s inhuman border-control system and therefore cannot with “clean hands” justify their actions or omissions with reference to that system, applicant W. appears to some extent to have been a victim of the same system. The border regime that was “imposed” (see paragraph 90 of the judgment) on the applicant with the threat of sanctions constituted an essential feature of the legal framework and social context within which he had to adjust his conduct at the time of his act. After reunification, however, he was in effect told that in order to have escaped conviction, he should, in 1972, have detached himself from that context and been guided by those elements of the GDR legal order which bore a resemblance to systems based on the rule of law.

Before going further, let me make it clear that I do not in any way underestimate the seriousness of the act committed by the applicant in 1972. To kill a helpless person is an abominable act, and had the applicant refused to commit it, he would deserve all admiration. However, the fact that he failed to live up to that standard is not conclusive when assessing his conviction from the point of view of Article 7 of the Convention.

To be compatible with Article 7, a criminal conviction must have a legal basis in the applicable law, which moreover must be sufficiently accessible and foreseeable. The German courts sentenced the applicant on the basis of the criminal law of the GDR, the FRG’s law being applied only in so far as it was more lenient. The question therefore is whether the applicant’s conduct at the time of the shooting incident constituted, under GDR law with the accessibility and foreseeability required by Article 7, a criminal offence. If the answer is no, the further question arises whether the act constituted an offence under international law (paragraph 1 of Article 7) or was “criminal according to the general principles of law recognised by civilised nations” (paragraph 2).

I am ready to accept that there was a sufficient legal basis in GDR law and that “the applicant’s conviction by the German courts, which had interpreted and applied the above provisions [i.e. section 17(2) of the Police Act and the other relevant provisions] to the case in issue, does not appear at first sight to have been either arbitrary or contrary to Article 7 § 1 of the

Convention” (see paragraph 59 of the judgment). I also agree that the fact that the German courts took different approaches to the interpretation of the grounds of defence pleaded by the applicant does not as such deprive the laws in question of their foreseeability or otherwise violate Article 7 (see paragraph 60).

Even so, those differences on their own indicate that the interpretation of the grounds of defence afforded by section 17(2) of the Police Act was by no means straightforward. The difficulties were compounded by the fact that the applicant could not, of course, benefit from any settled case-law clarifying the contents of the provision. Moreover, the legal framework within which the applicant lived did not consist only in legislation emanating from Parliament. In order for the guarantee of Article 7 to be “real and effective” rather than “theoretical and illusory” (see, for example, the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, § 24), provisions such as the above-mentioned section 17(2) should not be looked upon in isolation from the context of the GDR’s legal system as a whole.

According to Article 73 of the GDR’s Constitution, the Council of State laid down the principles to be followed in matters of national defence and security and organised defence with the assistance of the National Defence Council (see paragraphs 12 and 22 of the judgment). As stated in the judgment, the orders on which, among others, the applicant acted “had incontestably been decided upon by the organs of government of the GDR mentioned in Article 73 of its Constitution” (see paragraph 65). In other words, the applicant seems to have acted in accordance with orders emanating from prima facie “constitutionally competent” organs. I find it somewhat unreasonable to require that the applicant should have been able to decide a conflict between those orders and other provisions (such as section 17(2) of the Police Act), applying methods used in a State based on the rule of law. That such methods were not generally applied in the GDR is indicated, for example, by Article 89 § 3 of the 1968 Constitution, according to which the Council of State (and not, say, the Supreme Court) was to decide if doubt arose about the constitutionality of legal provisions emanating from the Council of Ministers or other State organs (“ Über Zweifel an der Verfassungsmäßigkeit von Rechtsvorschriften des Ministerrates und anderer staatlicher Organe entscheidet der Staatsrat ”).

It would be a futile effort (and one beyond my present role) to try to find the “correct” interpretation of the relevant GDR law. The above remarks were made in order to show that, in my view, when the applicant and his co-accused, after shouting a warning, fired first warning shots and then the fatal shot [4] , the applicant could not reasonably foresee that he could be convicted of intentional homicide. The GDR law that was applied therefore did not fulfil the test of foreseeability required by Article 7 of the Convention. The question then arises whether his act was criminal under international law, within the meaning of either paragraph 1 or paragraph 2 of Article 7.

Before addressing that question, I should emphasise that, unlike the applicants in Streletz, Kessler and Krenz , the present applicant cannot be held responsible for the “contradiction between the principles laid down in the GDR’s Constitution and its legislation ... and the repressive practice” (see paragraph 63 of the judgment). Nor am I fully convinced that persons in the applicant’s position were envisaged by the democratically elected parliament of the GDR, which in the summer of 1990 requested the legislature of the united Germany “to ensure that criminal prosecutions would be brought in respect of the injustices committed by the SED” (see paragraph 87). The fact that the applicant volunteered to serve in the army for three years does not show any particular allegiance to the inhuman border-control system. As can be seen from the judgments of the trial court and the Federal Court of Justice, he appears to have done this reluctantly and at the insistence of his father, a professional soldier. Thus his voluntary service is an indication rather of a lack of independence and maturity than of any particular commitment to the system. However that may be, his decision to do three years’ military service did not in my view increase the foreseeability required by Article 7 in any legally relevant manner.

There remains the question whether the applicant’s act was nevertheless “criminal according to the general principles of law recognised by civilised nations” for the purposes of paragraph 2 of Article 7, or constituted a crime under international law on other grounds (paragraph 1).

I accept that there are arguments for the proposition that a policy of closing a State’s borders constituted, even in the 1970s, a crime against humanity according to the Nuremberg principles as they had developed over the years [5] . Such a policy could be regarded as a large-scale and systematic violation of human rights within the meaning of the Nuremberg principles. Thus it would arguably have been possible to justify the conviction of those responsible for that policy also with reference to paragraph 2 of Article 7. Whether an individual act, such as the one in issue here, was able to trigger responsibility for a crime against humanity is, however, a different question. Regardless of what the answer to that question might be today, I can find no authority for the proposition that the act committed by the applicant in 1972 was at that time a crime against humanity within the meaning of the Nuremberg principles. That being so, I also conclude that Resolution 95(I) of the UN General Assembly (see paragraph 79 of the judgment), which applies to acts covered by those principles, has no direct bearing in the present case.

I am no more persuaded that the applicant’s individual criminal responsibility under international law could be based on other sources, such as comparative considerations. Although the GDR border-control system was in many respects unique, the use of deadly force has been tolerated – to varying degrees – in democratic societies as well. Thus in a 1988 decision (BGHSt 35, 379) the German Federal Court of Justice acquitted a customs officer who had fired in a life-threatening manner at a person on a motorcycle trying to escape controls at the German-Dutch border, on the ground that he was objectively entitled to suspect that the persons fleeing were serious drug offenders or had a comparable reason for fleeing. Although one should not draw a parallel between that case and the applicant’s case, the Federal Court’s decision of 1988 is nevertheless one indication that the right to life had not become of such overriding importance as to justify the conclusion that the present applicant’s act was, in 1972, criminal “according to the general principles of law recognised by civilised nations”. Nor do I find convincing arguments for the conclusion (see paragraph 105) that the right to life as guaranteed in general human-rights instruments created, as of 1972, individual criminal responsibility for the kind of act committed by the applicant.

I therefore conclude that there has been a violation of Article 7. I do not consider, however, that this violation is aggravated by discrimination contrary to Article 14. In view of the lenient sentence imposed on the applicant and the other circumstances, I would, moreover, without any doubt consider that the finding of this violation would in itself constitute sufficient just satisfaction for any non-pecuniary damage which the applicant might have sustained.

[1] . Gustav Radbruch (1878-1949): German professor of law who considerably influenced the philosophy of law. Following the crimes of the Nazis, he formulated the principle, also known as “Radbruch’s formula” ( Radbruch’sche Formel ), 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.

[2] . IT-94-1, paragraph 623.

[3] . Paragraph 248, footnote 311.

[4] 1. The Regional Court found that it could not be determined which of the two accused had fired the fatal shot. In addition, it appears from the domestic judgments that at the time of the shooting the guns of the applicant and his co-accused were switched to automatic fire ( auf Dauerfeuer eingestellt ) and that they pulled their triggers five times altogether, each time producing a burst of two shots. As mentioned in the judgment (paragraphs 17 and 18), the Regional Court and the Federal Court accepted the contention of the applicant and his co-accused that the first shots had been warning shots.

[5] 2. In this connection, reference may be made to the separate opinion of Judge Loucaides in Streletz, Kessler and Krenz v. Germany .