Database

The immunities of States and international organisations

This database contains the original national contributions bringing together information on The immunities of States and international organisations

Information on the contribution

Member State
Germany
Themes
Type of document
Jurisprudence
Permanent link to the contribution
http://www.cahdidatabases.coe.int/C/Immunities/Germany/1996/106
Translations
THIS DOCUMENT CAN BE QUOTED AS FOLLOWS:
Database of the CAHDI "The immunities of States and international organisations" - contribution of Germany - Jurisprudence of 24/10/1996

Constitutional complaints of members of the government of the former German Democratic Republic

Author(ity)

Federal Constitutional Court (Bundesverfassungsgericht)

Date of the decision, of the judgment

24/10/1996

Points of law

The decision mainly concerns the question whether the conviction of the complainants violates the prohibition of retroactive criminalization of acts not subject to punishment at the time when they were committed. But the complainants had also raised the State immunity defence which the court rejected in a short passage quoted hereinafter:

"[...] it is the generally accepted position in the international legal literature [...] that the immunity does not continue beyond the existence of the State whose citizen was the person concerned. [...] The argument of the complainant no. 3 that Article 25 of the Basic Law was violated for the reason alone that his criminal prosecution disregarded the sovereignty of the German Democratic Republic is not correct for this reason." (p. 129 et seq.)

Summary of the case

Constitutional complaints of members of the government of the former German Democratic Republic who had after the reunification of Germany been convicted and sentenced for homicide with regard to the shooting and killing of persons who had tried to flee the GDR across the inner-German border.

Sources

Entscheidungen des Bundesverfassungsgerichts Vol. 95, p. 96 et seq.

Additional information (explanations, notes, etc.)

See also the short decision of a chamber of the Federal Constitutional Court of 21 February 1992 which had rejected the immunity defence of former GDR head of State Honecker for the same reason (published in German with an English headnote in Deutsche Rechtsprechung zum Völkerrecht und Europarecht 1986-1993 [1997], p.129 et seq.). The headnote says: “The immunity of a head of State cannot outlast the existence of the State which he or she represented. After the extinction of a State, its representatives can therefore be subject to the criminal jurisdiction of other States.”