Death at the border

From time to time, newspaper reports awaken our memories of the Second World War as photographs of wartime criminals are splashed under banner headlines when justice finally catches up with the perpetrators of very serious crimes.

On the other hand, we may not be so alert when reports about criminal proceedings against border guards, who killed or maimed persons trying to flee from the former German Democratic Republic (East Germany), appear in the press.

Recently one such incident was given prominence in several British papers as a survivor sat through a court session while evidence was being heard against the person who had shot him and left him permanently disabled.

Readers who may have visited the Museum am Check Point Charlie in Berlin may have relived the experience as the contemporary newspaper cuttings, speeches on video and huge photographs of secret tunnels brilliantly displayed in this museum swam through their minds.

But the border shootings have also resulted in one of the best judgments delivered by the European Court of Human Rights on March 22, 2001. The application was filed by Streletz, Kessler and Krenz versus Germany, three high ranking officials of the former GDR. They had been found guilty by the courts in the Federal Republic of Germany for a limited number of shootings at the border crossing and punished for their crimes.

Their pleas

Their arguments centred about an alleged violation of Article 7 of the European Convention of Human Rights and Article 1 of the same Convention. Their main plea was a simple one but it bristled with constitutional, municipal, and international law problems. To cap it all, the judges had to deal with an important principle of the philosophy of law.

The applicants submitted that they had been found guilty of a crime which was not a crime at the time that the GDR was a state in its own right. They contended that the State Borders Act of the GDR justified what they had done and so they could not be found guilty.

The principle the applicants invoked is not only found in Article 7 of the European Convention of Human Rights but also in Section 39 of the Constitution of Malta and has its roots as far back as Magna Carta. Later Criminal Law theorists influenced many countries - both in Europe and in other parts of the world - to incorporate this principle in their Criminal Codes so that now it is considered as part of the rule of law.

Justice and Statute Law

One of the eternal problems that the practising lawyer or judge has to face is the relationship between positive law and justice. In Nazi Germany many laws were enacted which were clearly stated and could be understood by everyone so that there was no problem about their interpretation. However, can one follow a law which is manifestly unjust though it has been enacted according to the legal order prevailing in a particular country?

When the case was being heard in Germany, the Courts referred to a principle established by Radbruch - a well-known German law professor whose contributions to Philosophy of Law are greatly respected in the leading European universities.

As a reaction to Nazi crimes, he had cogently argued 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." This may not be the most scientifically clear of principles but the German courts referred to it in dismissing the pleas of the accused because how can statute law go against such a fundamental right as the right to life?

International Law

Another fine point was the relationship between the international obligations of the state and its behaviour even if these obligations have not been turned into municipal law. Given that on November 8, 1974 the GDR had ratified the International Covenant on Civil and Political Rights which includes the right to life and the right to freedom of movement, how could it be argued by these applicants that their actions (even if sanctioned by state practice or statute law) were in conformity with their international obligations?

They could foresee that what they were doing was tantamount to criminal behaviour and that there was no basis for it. In particular, the court held: "The convergence of these international instruments is significant : it indicates that the right to life is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights."

And further on: "The State practice implemented in the GDR did not protect anyone against unlawful violence, was not pursued in order to make any arrest that could be described as 'lawful' according to the law of the GDR and had nothing to do with the quelling of riot or insurrection, as the fugitives' only aim was to leave the country."

There was yet a further problem: the relationship laid down in the Constitution and ordinary municipal law. The GDR had all the trappings of a state which respects the rule of law. So one could find certain principles:

"Respect for and protection of the dignity and liberty of the person are required of all State bodies, all forces in society and every citizen" and "The person and liberty of every citizen of the German Democratic Republic are inviolable".

Now in the hierarchy of norms, the Constitution is supreme as the Constitution itself laid down, "Legal Rules shall not contradict the Constitution". How could an ordinary municipal law go against a right the Constitution itself had guaranteed?

The applicants also alleged a violation of Article 1 of the Convention "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention."

The Court dismissed this allegation as it held that this article is only a framework article which cannot be breached on its own. For the Constitutional lawyer the point made by the Court may be relevant to our interpretation of section 32 of our Constitution which is the introductory article in Chapter IV (fundamental Rights and Freedoms of the Individual).

It would not be just to omit mentioning the very lucid arguments in the concurring opinions of Judge Loucaides and Judge Zupancic which reveal a sound knowledge of international law and of the philosophy of law.