CONCURRING OPINION OF JUDGE ZUPANČIČ

I voted for finding no violation in this case because I consider the application of the GDR’s criminal law by the FRG’s courts legally consistent (see paragraphs 19-39 of the judgment). For the purposes of Article 7 § 1, this is sufficient.

Likewise, I agree that Article 2 § 2 is not applicable in this case (see paragraphs 95-97 of the judgment) although it may be applicable in other cases where the test of weighing personal integrity against a justified and lawful arrest yields a different result (see, for example, my dissenting opinion in Rehbock v. Slovenia , no. 29462/95, ECHR 2000-XII).

It is important to understand that this judgment does not rely on Article 7 § 2 or on the concept of an “international offence” in Article 7 § 1.

Article 7 § 2 is an exception to the principle nullum crimen, nulla poena sine lege praevia formulated by the famous German criminal-law theorist Anselm von Feuerbach. Franz von Liszt later maintained that the substantive guarantees enshrined in the principle of legality are the Magna Carta Libertatum of criminal defendants. This tradition of substantive criminal-law protection goes back to at least 1764 and Cezare Beccaria’s classic work Dei delitti e delle pene , which decisively influenced the whole continental tradition of legality in criminal law. This is all the more important because, in counter-distinction to the Anglo-Saxon legal model, although Magna Carta had a similar provision in its clause 39 ( lex terrae ), the guarantees are preponderantly to be found in substantive rather than in procedural law. Thus, the principle of legality ( Legalitätsprinzip , principe de legalité ) is typically interpreted to entail only the restrictive interpretation of the State’s power to punish.

In this case, as we shall see, the principle of legality has the opposite effect. It precludes the applicants from relying on their own interpretation of the law.

I find it difficult to agree with the sentence in paragraph 105 referring to “offences defined with sufficient accessibility and foreseeability by the international law rules on human rights protection” [emphasis added]. The powerful objective guarantees of substantive criminal law entrenched in the principle of legality cannot be reduced to the subjective right to advance notice of what is punishable under positive law.

The import of the principle of legality has to do with objective, rigorous semantic and logical legal restrictions ( lex certa ) on the State’s power to punish. Where the law gives an offender the formal possibility of foreseeing the criminal and punishable nature of his acts or omissions, irrespective of his everyday reliance on the prevalent and established “State practice” of impunity, the rule of law will sanction subsequent criminal liability. To maintain otherwise would make the criminal actor a legislator in casu proprio . This is the real significance of this case.

Conversely, excessive reliance upon the subjective criteria of accessibility and foreseeability would facilitate the applicants’ defence based on the principle of legality. They could maintain that they had in fact relied upon the official, accessible and foreseeable interpretation of the law at the time, and upon “the GDR’s State practice, which was superimposed on the rules of written law at the material time” (see paragraph 67 of the judgment). The applicants could then also maintain that their reliance on State practice, only later proved to be mistaken in the light of a strict interpretation of positive criminal law, was at the time nevertheless consistent with the official, constant and foreseeable State practice. Such an argument would then introduce the defence of an excusable mistake of law ( error juris ).

For example, section 2.04(3)(b)(iv) of the United States Model Penal Code, provides:

“A belief that conduct does not legally constitute an offence is a defence to a prosecution for that offence based upon such conduct when [the actor] acts in reasonable reliance upon ... an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offence .” [emphasis added]

Depending on the mistake-of-law provisions in either the GDR’s or the FRG’s substantive criminal law, the applicants’ acts could then possibly be excused (not justified!).

In such a context the mistake of law could become a bridge between the objective meaning of the law constituting the offence and the subjective understanding of this law. If the latter is not entirely subjective and arbitrary because it is based upon such objective elements as the relevant “State practice”, “official interpretation of the public officer”, etc., the mistake of law may become an excuse, that is, in German law “a reason to exclude criminal responsibility” ( Schuldausschliessungsgrund ).

The applicants’ subjective reliance upon the “the GDR’s State practice, which was superimposed on the rules of written law at the material time”, would in effect mean that their (and the GDR’s) schizophrenic interpretation, that is, dispensing with the positive law on the statute book, however realistic this was in view of the “the GDR’s State practice”, would prevail over the objective significance of the relevant definitions of offences in the GDR’s own criminal law.

This case, however, goes at least one step further in that direction. The applicants did not simply “rely” on the “GDR’s State practice”. They helped create that very real State practice of impunity. This practice of impunity, however, was not formalised through legislative means, no doubt because to the outside world the GDR wanted to maintain the image of a Rechtsstaat . If the practice of impunity had been legitimated through positive legislation this would have been a different case since it would probably have fallen under Article 7 § 2 of the Convention.

In terms of their own criminal law, the applicants were the co-conspirators in a large and consistent conspiracy to disregard the objective meaning of the law on the statute book, meaning that they co-conspired to create and maintain a two-faced situation in which the so-called “State practice” of impunity and even of rewarding the criminal behaviour of other co-conspirators was in unqualified contradiction with the formal language of the relevant criminal statutes. The distinctive characteristic of this case is that it was the applicants themselves who were “the public officer[s] or [members of the] body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offence”.

Here there was a self-referential situation in which the very same people who were charged with responsibility for the interpretation, administration or enforcement of the law defining the offence propagated the “State practice” which they now claim to have been the source of their own understanding of the law and thus of their excuse under the law. What is more, the applicants maintain that the GDR’s State practice was part and parcel of contemporaneous objective impunity and that it is therefore unacceptable ex post to activate criminal liability for their acts.

Clearly, this raises the issue of the rule of law and more specifically the issue of the rule of substantive criminal law. For the European Court of Human Rights to accept this “State practice” as an integral part of the “law defining the offence” for the purposes of Article 7 § 1, or to accept the defence of mistake of law would seal this circuitous self-justification in contradiction to the rule of law.

It is easy to imagine an analogous case in which the applicants were high judicial officers of the GDR who had themselves participated in creating the judicial “practice” (case-law, jurisprudence) of impunity. Would we then say that this “element of judicial interpretation” (see paragraph 82 of the judgment) amounted to the “law defining the offence”?

As the German legal theorist von Ihering rightly emphasised, the rule of law is founded upon the formal meaning of legal wording. If the rule of law is to be preserved, this objective meaning must remain independent and must in the last analysis be strictly separate from any subjective and arbitrary interpretation, no matter how prevalent it is as a “State practice” – all the more so if this prevalent arbitrary interpretation of the “law in (in)action” contradicting the law on the statute book is the result of collusion between the executive, legislative and judicial branches of the State.

To maintain the separation of the objective and the subjective in law is the only way of ensuring that nobody is above the law.