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  []
STRELETZ, KESSLER and KRENZ v. GERMANY
K.-H. W. v. GERMANY
No punishment without law – no violation Article 7, Section 1
Prohibition of discrimination – no violation Article 14
At the time when they were committed the applicants’ acts of murder in enforcement of the GDR’s shotto-kill
border-policing regime constituted offences defined with sufficient accessibility and foreseeability
by the rules of GDR law and international law on the protection of human rights. The principles applied
by the German Federal Constitutional Court had general scope and were therefore equally valid in
respect of persons who were not former nationals of the GDR.
In two judgments delivered on  March  in the cases of Streletz, Kessler and
Krenz v. Germany and K.-H.W. v. Germany, the European Court of Human Rights
held, unanimously and by fourteen votes to three respectively, that there had been
no violation of Article , Section  of the European Convention on Human Rights
(no punishment without law). The Court also held, unanimously in both cases,
that there had been no discrimination contrary to Article  of the Convention
(prohibition of discrimination) taken together with Article  of the Convention.
1. Principal facts
Three of the applicants, all German nationals, were senior officials of the German
Democratic Republic (GDR): Fritz Streletz, who was born in , was a Deputy
Minister of Defence; Heinz Kessler, who was born in , was a Minister of
Defence; Egon Krenz, who was born in , was President of the Council of State.
The fourth applicant, Mr K.-H. W., likewise a German national, was born in
. He was a member of the GDR’s National People’s Army (NVA) and was
stationed as a border guard on the border between the two German States.
All four applicants were convicted by the courts of the Federal Republic of
Germany (FRG), after German unification on  October , under the relevant
provisions of the GDR’s Criminal Code, and subsequently those of the FRG’s
Criminal Code, which were more lenient than those of the GDR.
Mr Streletz, Mr Kessler and Mr Krenz were sentenced to terms of imprisonment
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of five-and-a-half years, seven-and-a-half years and six-and-a-half years respectively
for intentional homicide as indirect principals (Totschlag in mittelbarerTäterschaft),
on the ground that through their participation in decisions of the GDR’s highest
authorities, such as the National Defence Council or the Politbüro, concerning
the regime for the policing of the GDR’s border (Grenzregime), they were responsible
for the deaths of a number of people who had tried to flee the GDR across the
intra-German border between  and .
Mr W. was sentenced to one year and ten months’ imprisonment, suspended,
for intentional homicide (Totschlag), on the ground that by using his firearm he
had caused the death of a person who had attempted to escape from the GDR
across the border in .
The applicants’ convictions were upheld by the Federal Court of Justice and
declared by the Federal Constitutional Court to be compatible with the
Constitution.
2. Procedure of the Court
The applications of Mr Streletz, Mr Kessler and Mr K.-H. W. were lodged with
the European Commission of Human Rights on  November ,  January
 and  May  respectively. Mr Krenz’s application was lodged with the
Court on  November .
On  December  a Chamber of the Court’s Fourth Section decided to
relinquish jurisdiction over these four applications in favour of the Grand Chamber,
on account of the importance of the questions they raised under the Convention.
A hearing was held on  November . On the same day the Grand Chamber
unanimously declared the four applications admissible. On  February  it
decided to join the applications of Mr Streletz, Mr Kessler and Mr Krenz.
3. Summary of the judgments
Complaints
The applicants submitted that their actions, at the time when they were committed,
did not constitute offences under the law of the GDR or international law and that
their conviction by the German courts had therefore breached Article , Section 
of the European Convention on Human Rights (no punishment without law).
They also relied on Article  (obligation to respect human rights) and Article ,
Section  (exceptions to the right to life) of the Convention.
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Decisions of the Court
The reasoning of the two judgments is largely identical, except as indicated below.
Article 7, Section 1 of the Convention
The Court observed that its task was to consider, from the standpoint of Article ,
Section  of the Convention, whether, at the time when they were committed, the
applicants’ acts constituted offences defined with sufficient accessibility and
foreseeability by the law of the GDR or international law.
a. National law
i. Legal basis for the convictions
The Court noted that the legal basis for the applicants’ convictions was the criminal
law of the GDR applicable at the material time, and that their sentences
corresponded in principle to those prescribed in the relevant provisions of the
GDR’s legislation; in the event, the sentences imposed on the applicants had been
lower, thanks to the principle of applying the more lenient law, which was that of
the FRG.
ii. Grounds of justification under GDR law
The applicants relied in particular on section () of the GDR’s People’s Police
Act and section () of the State Borders Act.
In the light of the principles enshrined in the GDR’s Constitution and other
legal provisions (which expressly included the principles of proportionality and
the need to preserve human life when firearms were used), the Court considered
that the applicants’ conviction by the German courts, which had interpreted those
provisions and applied them to the cases in issue, did not appear at first sight to
have been either arbitrary or contrary to Article , Section  of the Convention.
iii. Grounds of justification derived from GDR State practice
The Court pointed out that although the aim of the GDR’s State practice had
been to protect the border between the two German States “at all costs” in order to
preserve the GDR’s existence, which was threatened by the massive exodus of its
own population, the reason of State thus invoked had to be limited by the principles
enunciated in the Constitution and legislation of the GDR itself; above all, it had
to respect the need to preserve human life, enshrined in the GDR’s Constitution,
People’s Police Act and State Borders Act, regard being had to the fact that even at
the material time the right to life was already, internationally, the supreme value in
the hierarchy of human rights.
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iv. Foreseeability of the convictions
Streletz, Kessler and Krenz v. Germany
The Court considered that the broad divide between the GDR’s legislation and its
practice was to a great extent the work of the applicants themselves. Because of the
very senior positions they occupied in the State apparatus, they evidently could
not have been ignorant of the GDR’s Constitution and legislation, or of its
international obligations and the criticisms of its border-policing regime that had
been made internationally. Moreover, they themselves had implemented or
maintained that regime, by superimposing on the statutory provisions, published
in the GDR’s Official Gazette, secret orders and service instructions on the consolidation
and improvement of the border-protection installations and the use of firearms.
The applicants had therefore been directly responsible for the situation which had
obtained at the border between the two German States from the beginning of the
s until the fall of the Berlin Wall in .
K.-H. W. v. Germany
The Court took the view that even a private soldier could not show total, blind
obedience to orders which flagrantly infringed not only the GDR’s own legal
principles but also internationally recognised human rights, in particular the right
to life, the supreme value in the hierarchy of human rights.
Even though the applicant was in a particularly difficult situation on the spot,
in view of the political context in the GDR at the material time, such orders could
not justify firing on unarmed persons who were merely trying to leave the country.
In addition, the Court noted that the German courts had examined in detail
the extenuating circumstances in the applicant’s favour and had duly taken account
of the differences in responsibility between the former leaders of the GDR and the
applicant by sentencing the former to terms of imprisonment and the latter to a
suspended sentence subject to probation.
Reasoning common to both judgments
The Court considered that it was legitimate for a State governed by the rule of law
to bring criminal proceedings against persons who had committed crimes under a
former regime; similarly, the courts of such a State, having taken the place of those
which existed previously, 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 subject to the rule of law.
Moreover, regard being had to the pre-eminence of the right to life in all
international instruments on the protection of human rights, including the
Convention itself, in which the right to life was guaranteed by Article , the Court
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considered that the German courts’ strict interpretation of the GDR’s legislation
in the present case was compatible with Article , Section  of the Convention.
Lastly, the Court considered that a State practice such as the GDR’s borderpolicing
policy, which flagrantly infringed human rights and above all the right to
life, the supreme value in the international hierarchy of human rights, could not
be covered by the protection of Article , Section  of the Convention.That practice,
which emptied of its substance the legislation on which it was supposed to be
based, and which was imposed on all organs of the GDR, including its judicial
bodies, could not be described as “law” within the meaning of Article  of the
Convention.
Having regard to all of the above considerations, the Court held that at the time
when they were committed the applicants’ acts constituted offences defined with
sufficient accessibility and foreseeability in GDR law.
b. International law
i. Applicable rules
The Court considered that it was its duty to examine the cases from the standpoint
of the principles of international law also, particularly those relating to the
international protection of human rights, to which the German courts had referred.
ii. International protection of the right to life
In that connection, the Court noted in the first place that in the course of the
development of that protection the relevant conventions and other instruments
had constantly affirmed the pre-eminence of the right to life.
It held that, regard being had to the arguments set out above, the applicants’
acts were not justified in any way under the exceptions to the right to life
contemplated in Article , Section  of the Convention.
iii. International protection of the freedom of movement
Like Article , Section  of Protocol No.  to the Convention, Article , Section 
of the International Covenant on Civil and Political Rights provided: “Everyone
shall be free to leave any country, including his own.”
iv. The GDR’s State responsibility and the applicants’ individual responsibility
If the GDR still existed, it would be responsible from the viewpoint of international
law for the acts concerned. It remained to be established that alongside that State
responsibility the applicants individually bore criminal responsibility at the material
time. Even supposing that such responsibility could not be inferred from the abovementioned
international instruments on the protection of human rights, it could
be deduced from those instruments when they were read together with Article 

  []
of the GDR’s Criminal Code, which explicitly provided, and from as long ago as
 moreover, that individual criminal responsibility was to be borne by those
who violated the GDR’s international obligations or human rights and fundamental
freedoms.
In the light of all of the above considerations, the Court considered that at the
time when they were committed the applicants’ acts also constituted offences defined
with sufficient accessibility and foreseeability by the rules of international law on
the protection of human rights.
In addition, the applicants’ conduct could be considered, likewise under Article
, Section  of the Convention, from the standpoint of other rules of international
law, notably those concerning crimes against humanity. However, the conclusion
reached by the Court made consideration of that point unnecessary.
c. Conclusion
Accordingly, the applicants’ conviction by the German courts after reunification
had not breached Article , Section .
In the light of that finding, the Court was not required to consider whether
their convictions were justified under Article , Section  of the Convention.
Article 14 of the Convention
The applicants submitted that as former citizens of the GDR they could not rely
on the constitutional principle of the non-retroactiveness of criminal statutes.
The Court held that the applicants’ complaint could not be raised under Article
 of the Convention, which was a framework provision that could not be breached
on its own. It could, however, be examined under Article  of the Convention
taken together with Article , as the applicants had complained in substance of
discrimination they had allegedly suffered as former citizens of the GDR.
However, the Court considered that the principles applied by the Federal
Constitutional Court had general scope and were therefore equally valid in respect
of persons who were not former nationals of the GDR.
Accordingly, there had been no discrimination contrary to Article  of the
Convention taken together with Article .
Judgment was given by the Grand Chamber of 17 judges, composed as follows::
Luzius Wildhaber (Swiss), President, Elisabeth Palm (Swedish), Christos Rozakis
(Greek), Georg Ress (German), Jean-Paul Costa (French), Luigi Ferrari Bravo
(Italian), Lucius Caflisch (Swiss), Loukis Loucaides (Cypriot), Ireneu Cabral Barreto
(Portuguese), Karel Jungwiert (Czech), Nicolas Bratza (British), Bostjan Zupancicˇˇˇ
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(Slovenian), Nina Vajic (Croatian), Matti Pellonpää (Finnish), Margarita TsatsaNikolovska
(FYR Macedonian), Egils Levits (Latvian), and Anatoly Kovler
(Russian), Judges.
In the Streletz, Kessler and Krenz case Judges Loucaides, Zupancic and Levits
expressed concurring opinions. In the K.-H. W. case Judges Loucaides and Bratza
expressed concurring opinions and Judges Cabral Barreto and Pellonpää partly
dissenting opinions.
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