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39 German Y.B. Int'l L. 523 (1996)
Government Criminality: The Judgment of the German Federal Constitutional Court of 24 October 1996

handle is hein.journals/gyil39 and id is 524 raw text is: GERMAN LAW DEVELOPMENTS Government Criminality: The Judgment of the German Federal Constitutional Court of 24 October 19961 By Stephan Hobe and Christian Tietje Introduction There is no doubt that the judgment of 24 October 1996 is among the most im- portant of the German Federal Constitutional Court (Bundesverfassungsgericht). The judgment involves fundamental questions of law and justice and constitutes, after the problematic period following 1945,2 the second attempt by the German judici- ary at coming to grips with criminal acts of State officials committed under a totali- tarian government.3 The question of interest from an international law perspective was whether punishment meted out to former East German government officials runs counter to the constitutional prohibition against retroactive punishment con- tained in Article 103 para. 2 of the German constitution (Grundgesetz).4 The Ger- man Federal Court for Criminal Matters (Bundesgerichtshofffir Strafsachen) had de- clared the provision of the East German border law legalizing the killing of refugees at the border void as counter to fundamental human rights and as a breach of ele- mentary considerations of justice. 1BVerfGE, Az. 2 BvR 1851/94; 2 BvR 1853/94; 2 BvR 1875/94; 2 BvR 1852/94, reprinted in Juristenzeitung, 1997, 142 (hereinafter judgment). In the following any quotation of the judgment refers to the original printing of the judgment. 2For a critical account of the judicial treatment of crimes committed during the Nazi peri- od see, e.g., Adalbert Rfickerl, NS-Verbrechen vor Gericht, 2nd ed., 1984. 3 For an account of the general problems see, e.g., Christian Starck/Wilfried Berg/Bodo Pie- roth, Der Rechtsstaat und die Aufarbeitung der vor-rechtsstaatlichen Vergangenheit, Verbf- fentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, vol. 51, 1992, 9. 4 See Eberhard Scbmidt-Af'mann in: Theodor Maunz/Gfinther Dirig, Grundgesetz, Art. 103, notes 163 et seq., 235 et seq.

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