CONCURRING OPINION OF JUDGE LEVITS

1. I agree with the conclusions set out in the judgment.

Nevertheless, I would like to explain my approach on two points: firstly, on the interpretation of law under democratic and non-democratic (socialist) regimes and treatment of that problem after the transition to democracy, and secondly on the term “crime against humanity” in international law.

I.

2. The judgment is based on an interpretation of international law (for example, in the International Covenant on Civil and Political Rights of 16 December 1966) and the national law of the GDR (for example, in the Constitution of the GDR, the People’s Police Act and other laws). The Court comes to the conclusion that the conduct of the applicants at the material time was contrary to both international law and the national law of the GDR (see paragraphs 64, 72, 75, 102, 104 and others of the judgment).

3. The applicants contested that approach (also adopted by the German domestic courts) saying in fact that in the GDR international law and national law were interpreted and applied differently (see paragraph 47 of the judgment) and that in the light of that interpretation and application of the law their conduct had been lawful.

4. It seems to me that that objection raises one of the most serious issues of the present judgment – a point which is very important in situations where a previous, non-democratic (for example, socialist) regime has been abolished and a new democratic regime has been established. It shows clearly that interpretation and application of the law depend on the general political order, in which the law functions as a sub-system.

5. In fact, the courts of the GDR, by applying the same provisions of the GDR Constitution (Articles 19 and 30) and other laws, and also the International Covenant on Civil and Political Rights (Article 12), would never have come to the same result as the German courts did after the reunification and this Court has done in the present judgment because of their completely different approach to interpretation and application of the law.

6. The differences in interpretation and application of the law between democratic and socialist systems cover all important elements of the law in the broad sense – especially the sources of law, autonomy of legal reasoning and the interpretation of legal norms (especially by independent judges), methods of interpretation of legal norms, the hierarchy of legal norms and the binding character of the law for the State authorities. Therefore, the same legal texts (the Constitution of the GDR or the International Covenant on Civil and Political Rights), when applied according to different methodologies of application of the law inherent in the political order concerned, will lead to different results.

7. That brings us to the question whether, after a change of political order from a socialist to a democratic one, it is legitimate to apply the “old” law, set by the previous non-democratic regime, according to the approach to interpretation and application of the law which is inherent in the new democratic political order.

8. I would like to stress that in my view there is no room for other solutions. Democratic States can allow their institutions to apply the law – even previous law, originating in a pre-democratic regime – only in a manner which is inherent in the democratic political order (in the sense in which this notion is understood in the traditional democracies). Using any other method of applying the law (which implies reaching different results from the same legal texts) would damage the very core of the ordre public of a democratic State.

9. The same principles are equally valid with regard to the interpretation and application of the norms of international law, like the International Covenant on Civil and Political Rights. The Covenant has been signed and ratified by most States in the world – democratic and non-democratic (including the GDR). A democratic State can interpret and apply the Covenant (and other international legal norms) only according to the methodology of application of the law which is inherent in the democratic political order. In the present case that was done by the German domestic courts (see the judgment of the Federal Constitutional Court, quoted in paragraph 22 of the judgment).

10. Consequently, interpretation and application of national or international legal norms according to socialist or other non-democratic methodology (with intolerable results for a democratic system) should from the standpoint of a democratic system be regarded as wrong. That applies both to ex post facto assessment of the legal practice of previous non-democratic regimes (as in the instant case, although the same situation may obviously arise in other new democracies) and to assessment of the actual legal practice (for example, regarding the Covenant) of today’s non-democratic regimes. That practice should be regarded as a misuse of law. After the change to a democratic political order the persons responsible cannot rely for justification of their conduct on the “specific” way in which law is interpreted by non-democratic regimes.

11. In my view, that is a compelling conclusion, which derives from the inherent universality of human rights and democratic values, by which all democratic institutions are bound. At least since the time of the Nuremberg Tribunal, that conception of the democratic order has been well understood in the world and it is therefore foreseeable for everybody.

12. That, in my view, is confirmed also by the conclusions of the present judgment.

II.

13. Paragraph 107 of the judgment confirms that the applicants’ conduct could also be considered under Article 7 § 1 of the Convention from the standpoint of other rules of international law, notably those concerning crimes against humanity, but that in view of the Court’s findings after applying international human rights norms in conjunction with the norms of the GDR’s national law it is not necessary to examine this question.

14. In principle, I agree with that approach. However, the conclusions of the present judgment were reached mainly because the Constitution and other laws of the GDR were well-formulated in a language which was similar to the language of the constitutional and other legal provisions of democratic States governed by the rule of law (for example, constitutional provisions on human rights). That was not the real intention of the non-democratic regime of the GDR. The human rights provisions in the Constitutions of the former socialist States were rather of a propagandistic character. Nevertheless, the German domestic courts and this Court, for what in my view are compelling reasons, as explained above, have “taken these rights seriously” (Ronald Dworkin) by giving them the meaning derived from the wording of the various legal norms as construed according to the methodology of application of the law inherent in the democratic system.

15. I think that the ability of courts in the newly established democracies to deal with the “legacy” of former non-democratic regimes should not depend solely on the wording of the legal norms of the non-democratic regimes, formulated in the first place not for legal but rather for propagandistic purposes.

16. The judgment left the door open also for the examination of such conduct as the applicants’ under the heading of a criminal offence under international law (see paragraph 106 of the judgment).

17. In that connection, I would like to stress recent developments in international law in respect of the strengthening of the protection of human rights, including norms on crimes against humanity. Despite the fact that many legal problems in this field are not yet entirely resolved, the direction of these developments is obvious.

18. I therefore endorse the convincing analysis of Judge Loucaides in his concurring opinion, that at the material time the applicants’ conduct was not only a criminal offence under domestic law but could also be considered an offence under international law.