Honecker Prosecution Case

Date12 Enero 1993
CourtSupreme Constitutional Court (Germany)
Federal Republic of Germany, Supreme Constitutional Court (VerfGH) of Berlin

(Finkelnburg, President; Hoene, Vice-President; Arendt-Rojahn, Dittrich, Driehaus, Eschen, Kunig, Citron-Piorkowski, Krting, Judges)

Honecker Prosecution Case

Relationship of international law and municipal law Crimes against international law Punishment by municipal courts Shooting of persons at Berlin Wall by border guards of German Democratic Republic Responsibility of former President of German Democratic Republic for ordering measures establishing regime at the Wall Prosecution of President Honecker for homicide following re-unification of Germany Whether proceedings should be terminated because accused suffering from advanced incurable cancer

Human rights Right to human dignity Basic Law of Federal Republic of Germany, Article 1(1) Unwritten constitutional principle for German Lnder Criminal proceedings Accused suffering from incurable illness and most unlikely to live until end of trial Whether continuation of proceedings in such circumstances violating right to protection of human dignity Whether any exception where crimes charged are particularly serious and were committed by former Head of State The law of the Federal Republic of Germany

Summary: The facts:Erich Honecker was the former Chairman of the Council of State of the German Democratic Republic (GDR). Following the re-unification of Germany, he initially left the country but later returned and was charged under the law of the Federal Republic of Germany (FRG) with various counts of unlawful homicide, on the basis that he had been responsible between 1961 and 1980 for ordering numerous measures establishing the regime in force at the Berlin Wall, including the use of firearms to prevent escapes to the West. A warrant was issued for his arrest, he was held in custody in a prison hospital and his trial before the Provincial Court (Landgericht) of Berlin commenced in November 1992. He unsuccessfully challenged his detention and the continuation of the proceedings on the grounds that he was suffering from the advanced stages of cancer. In December 1992 the Court of Appeal (Kammergericht) of Berlin rejected an appeal. He then lodged a constitutional complaint before the Supreme Constitutional Court (VerfGH) of Berlin alleging infringement of his fundamental right to human dignity.

Held:The constitutional complaint was admissible and well-founded. The indictments and arrest warrant against the accused should be set aside.

(1) The Constitution of the Land of Berlin contained, as an unwritten constitutional principle, a commitment to respect the dignity of man and an obligation for all its authorities to respect and protect that dignity. This principle was derived from the commitment, contained in Article 1(1) of the Basic Law of the Federal Republic of Germany, to respect human dignity, which influenced the Constitution of the Land of Berlin. This principle gave rise to a constitutional right upon which individuals could rely (pp. 3978).

(2) According to the jurisprudence of the Federal Constitutional Court, the constitutional requirement to protect human dignity meant that a person could not be made the mere object of criminal proceedings or detention in custody where there was no reasonable prospect of those proceedings achieving their lawful purpose of conviction and punishment. This condition was satisfied in this case because the accused would almost certainly not live until the end of the proceedings against him. It made no difference that the acts charged were particularly serious or that the GDR had not granted accused persons the same measure of protection of their human dignity as was guaranteed in the FRG (pp. 399400).

The following is the text of the relevant part of the judgment of the Court:

Operative Part of the Judgment

The decision of the Court of Appeal (Kammergericht) of 28 December 1992 violates the fundamental right of the complainant to the protection of his human dignity, in so far as it rejects his appeal against detention. To this extent the decision is quashed.

The decision of the Provincial Court (Landgericht) of Berlin of 21 December 1992 which rejected the application of the complainant for a stay of the proceedings and the cancellation of the arrest warrant against him, also violates the complainant's fundamental right to the protection of his human dignity. That decision is also quashed.

The case is remitted to the Landgericht of Berlin


In the original proceedings the...

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