Obstacle to prosecution for GDR agents
| Obstacle to prosecution for GDR spies | ||||
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proclaimed May 15, 1995 |
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1. A general rule of international law as part of federal law (Art. 25 GG), according to which the criminal prosecution of intelligence activities is excluded, which were committed on behalf of and from the territory of a state, which then peacefully and amicably joined the spied state , cannot be determined. 2. On the question of the criminal liability and prosecution of former employees and agents of the Ministry for State Security (MfS) and the military intelligence service of the German Democratic Republic (GDR) after the unification of Germany because of their espionage activities previously directed against the Federal Republic of Germany or its NATO partners. |
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| Applied Law | ||||
| Art. 2 para. 2 GG; Art. 38 GG; Art. 25 GG; Art. 3 para. 1 GG; Art. 31 HLKO; Art. 315 para. 4 EStGB; Section 94 of the Criminal Code; Section 99 of the Criminal Code |
The Federal Constitutional Court dealt with the question of the criminal liability and prosecution of former employees and agents of the GDR secret services after reunification for espionage activities directed against the Federal Republic of Germany or other NATO states on the basis of a reference order of the Chamber Court and three constitutional complaints . The Federal Constitutional Court ruled on May 15, 1995 that there was a constitutional obstacle to prosecution in this regard.
facts
Through the unification treaty between the Federal Republic of Germany and the German Democratic Republic of August 31, 1990, the scope of federal German criminal law was extended to the territory of the GDR. According to this, former GDR citizens who had been employees or agents of the Ministry for State Security or the military secret service of the GDR and against the Federal Republic or other NATO states had acted for high treason (§§ 81ff. StGB) and secret service agent activity (§ 99 StGB) made punishable.
In the early 1990s there were numerous criminal proceedings against former employees and agents of the GDR secret services. These cited the fact that there was a general rule of international law (cf. Art. 25 of the Basic Law) that prevented criminal prosecution for espionage committed on behalf of and from the territory of another state. In addition, the prosecution would violate the prohibition of retrospective criminal laws enshrined in Art. 103 (2) , since espionage activities were not punishable in the GDR.
The Federal Constitutional Court, which had to deal with this question in a connected norm review and constitutional complaint procedure , could not identify a violation of Articles 25 and 103, Paragraph 2 of the Basic Law. However, it recognized an obstacle to persecution derived from the rule of law (Article 20, Paragraph 3 of the Basic Law) , which, however, only exists if the persons concerned had their center of life in the GDR at the time of reunification . However, it is not necessary for the obstacle to intervene that the espionage was carried out exclusively from the soil of the GDR. It is sufficient that those affected in the states from which they carried out their activities were safe from criminal prosecution for these acts and that this security only ceased after reunification.
Consequences of the decision
The decision of the Federal Constitutional Court subsequently meant that former GDR citizens could no longer be prosecuted for espionage activities against the Federal Republic or other NATO countries. Federal citizens and citizens of Berlin (West) can just as little invoke the decision as agents of other Eastern secret services.
The decision set the trend for the criminal handling of GDR espionage. As a result, the Federal Court of Justice changed its earlier case law to the appeal of the former 1st Deputy Minister for State Security Markus Wolf and overturned the judgment of the lower court. The higher regional court in Düsseldorf originally had Wolf a. a. convicted of treason.
In the legal literature, the decision is assessed differently: On the one hand, it is argued that it serves the legal peace in a united Germany, on the other hand, many authors express criticism.
literature
- Karl Doehring: On the ratio of spy punishment - international law and national law , in: Journal for legal policy 1995, pp. 293-297
- Thomas Hillenkamp: Open or covert amnesty - on ways of coming to terms with the past under criminal law , in Juristenteitung 1996, pp. 179–187
- Peter M. Huber: The criminal liability of MfS spies , in: Legal training 1996, pp. 301–307
- Friedrich-Christian Schroeder: The criminal liability of research into the Federal Republic by the GDR , in: Juristische Rundschau 1995, pp. 441–445
- Klaus Volk: Excess and procedural law - on the espionage decision of the BVerfG , in: Neue Zeitschrift für Strafrecht 1995, pp. 367–371
- Gerhard Werle / Klaus Marxen / Petra Schäfter / Ivo Thiemrodt: Criminal justice and GDR injustice. Volume 4, Espionage, Part 1 . De Gruyter, Berlin 2004. ISBN 3-89949-080-0
swell
- ↑ Principles on the resolution of the Second Senate of May 15, 1995
- ↑ Jochen A. Frowein / Rüdiger Wolfrum / Gunnar Schuster: Questions of international law on the criminal liability of spies from the former GDR. Expert opinion prepared on behalf of the Federal Constitutional Court and ruling , Springer Verlag Berlin (September 2007), p. 157 ff., ISBN 3-540-60375-1
- ↑ Traits of humanity . In: Der Spiegel . No. 23 , 1995, pp. 87 ( online - June 5, 1995 , Federal Prosecutor General Kay Nehm on amnesty and the persecution of GDR spies in an interview with Spiegel).
- ↑ BGHSt 39, 260 ff.
- ↑ BGHSt 41, 292 ff. ("Case Markus Wolf")
- ↑ Jochen A. Frowein, Rüdiger Wolfrum, Gunnar Schuster: Questions about international law . P. 168 ff.