This case involved two former East German border guards who were charged with manslaughter for shooting and killing a 20-year old man trying to escape from East to West Berlin in 1984. [1] The lower court found the defendants guilty of homicide, rejecting their claim that they were justified under East German law. [2] The upper court overturned this, finding that the defendants' actions were justified under the East German interpretation of the law at the time. [3] However, the court also found that justification for killing could not be accepted given basic human rights principles.
This case involved two former East German border guards who were charged with manslaughter for shooting and killing a 20-year old man trying to escape from East to West Berlin in 1984. [1] The lower court found the defendants guilty of homicide, rejecting their claim that they were justified under East German law. [2] The upper court overturned this, finding that the defendants' actions were justified under the East German interpretation of the law at the time. [3] However, the court also found that justification for killing could not be accepted given basic human rights principles.
This case involved two former East German border guards who were charged with manslaughter for shooting and killing a 20-year old man trying to escape from East to West Berlin in 1984. [1] The lower court found the defendants guilty of homicide, rejecting their claim that they were justified under East German law. [2] The upper court overturned this, finding that the defendants' actions were justified under the East German interpretation of the law at the time. [3] However, the court also found that justification for killing could not be accepted given basic human rights principles.
This case involved two former East German border guards who were charged with manslaughter for shooting and killing a 20-year old man trying to escape from East to West Berlin in 1984. [1] The lower court found the defendants guilty of homicide, rejecting their claim that they were justified under East German law. [2] The upper court overturned this, finding that the defendants' actions were justified under the East German interpretation of the law at the time. [3] However, the court also found that justification for killing could not be accepted given basic human rights principles.
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Jurisprudence I
Border Guard Case
FACTS
The border between East and West Berlin is opened and daily half a million people cross the border from one part of the city into the other. In 1961, the leaders of the Communist party decided to close the open border between East and West Berlin. East German border guards had been ordered to shoot to kill anyone trying to escape to West Germany, including women and children. Many East Berliners successfully and unsuccessfully tried to escape to West Berlin by climbing the Wall and quite a few were shot dead by East German body guards while trying to escape East Berlin. Federal Court of United Germany ruled that former East German border guards were guilty of the Berlin Wall shootings.
This case was about the defendants who were two young soldiers of the GDR Border Guard Troops, shot at a 20 year-old East German trying to escape over the wall to West Berlin during the night of 1 December 1984. When the fugitive climbed the wall on a ladder he had brought with him, one of the defendants shouted at him to freeze and, after firing some warning shots in the air, both of the soldiers fired at him with automatic rifles in order to stop the escape, even at the cost of the fugitive's life. The man, hit by bullets in his back and knee, fell from the ladder. After some time he was dragged to a watchtower by two other soldiers where, despite his repeated requests for medical treatment, he received no attention. Since the incident had to be kept secret no civilian or other person on emergency duty was allowed to be called. Only after two hours was the fugitive taken to a police hospital, where he died shortly afterwards.
After Germany was reunited IN 1992, both soldiers were found guilty of manslaughter and sentenced to one year and six months and one year and nine months respectively.
Lower court:
1. The Young Persons Chamber accepts that the defendants committed joint homicide with a conditional intention. Even if a ground of justification under the law of the GDR comes into consideration on accordance with the above, it would nevertheless not applicable to the shots of the defendants because of the special circumstances of the act. As stated under s.26 and s.27 of the Border Act.
S. 27 para 1 sentence 1 describes the use of firearms as “ the most extreme measure of the application of force”. An interpretation of the ground of justification which has regard to the viewpoint of proportionality would result here in the continuous fire given by the defendants not being covered by s. 27 of the Borders Act and only the single shots having been permitted: the requirement of s. 27 para 5 of the Border Act that human life is to be spared. Admittedly the defendants aimed at the legs. They were however aware that with continuous fire in short bursts, the weapon “wanders” after the first shot.
2. The defendants at the same time believed that this procedure was covered by the command to arrest the border violator in every case and even, as a final method, to destroy (kill) him cannot exonerate (acquit/forgive) them because they carrying out of the command to shoot a fugitive dead if necessary. obviously violates the criminal law, namely prohibition on homicide.
Upper court:
1. No criminal offence of endangering preceded the shoots at the wall, as the criminal acts described that the victim of a political system disregarding rights of freedom.
2. The examination shows that the defendants – according to the interpretation employed in the GDR at the time of the act – complied with the requirements described in s.27 para 2 of the Border Act. According to s.27 para 2 sentence 1 of the Border Act the use of firearms was “justified, in order to prevent the immediately impending carrying out or continuation of a criminal act, which according to the circumstances presents itself as a crime”
In this court, it agree with the Young Peoples Chamber that even if the defendant act resulted in killing, but they have comply with the command.
3. (Concerning the punishment of crimes against peace and humanity and of war crimes) The court rule that a ground of justification which would have justified the conduct of the defendants was certainly accepted in State practice as was expressed in the total context of the command. The prohibition on retroactivity should protect the accused from arbitrary action and limit penal authority to the enforcement of general laws. The expectation that the law would also be applied in the future as it was in state practice at the time of the act, in such a way that a ground of justification which was contrary to human rights was acknowledged, is not worthy of protection. It is not arbitrary treatment if the accused, so far as the unlawfulness of his action is concerned, is judged in the way in which he ought to have been treated on the correct interpretation of GDR law at the time of the act. Besides this, no other outcome could apply if a statutory ground of justification which is open to equally weighty objection would be susceptible to no interpretation at all which is orientated to human right.
4. The court also looks into the background of defendant and concluded that this urged towards lenient punishment. (last para of the paper)
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