Judgment on Foreign Soldiers' Immunity for War Crimes Committed Abroad (BGH)

2021 ◽  
pp. 1-7
Author(s):  
Tom Syring
Keyword(s):  
War Crimes ◽  
Federal Court ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Basic Law ◽  
Functional Immunity ◽  
Federal Court Of Justice ◽  
Lower Ranking ◽  
Federal Constitutional

On January 28, 2021, the German Federal Court of Justice, or Bundesgerichtshof (BGH), Germany's highest court of ordinary jurisdiction, delivered its judgment in Case 3 StR 564/19 pertaining to questions of universal jurisdiction over international crimes and the extent to which foreign soldiers would be barred from prosecution in Germany based on claims of (functional) immunity for war crimes committed abroad. The decision strikes at the heart of a debate where such exceptions to immunity (ratione materiae) are yet to be uniformly agreed upon at an international level; it also comes on the verge of a number of related judgments that are pending both in German and other European courts. In the present case, the BGH held that according to the general rules of international law, criminal prosecution in Germany for war crimes committed abroad would not be precluded based on the notion of functional immunity, “when the acts have been committed by a foreign, lower-ranking defendant in the exercise of foreign sovereign activity.” Neither the BGH nor Germany's supreme guardian of the “Basic Law,” the Federal Constitutional Court, or Bundesverfassungsgericht (BVerfG), has previously pronounced itself on questions of functional immunity in criminal proceedings.

Lawyer's Ranking From A Constitutional Perspective: The Federal Constitutional Court's JUVE-Handbook Decision

2003 ◽  
Vol 4 (3) ◽  
pp. 237-245 ◽  
Author(s):  
Kristofer Bott
Keyword(s):  
Publishing Industry ◽  
Freedom Of Expression ◽  
Federal Court ◽  
Constitutional Court ◽  
The Public ◽  
Court Of Justice ◽  
Basic Law ◽  
Federal Court Of Justice ◽  
Federal Constitutional ◽  
Article 5

In November, 2000, the Bundesverfassungsgericht (Federal Constitutional Court) surprised the public by holding that the publisher's freedom of expression and press secured by Article 5 of the Grundgesetz (Basic Law) could be violated if the publication of advertisements was prohibited, provided the advertisement is included in the scope of protection itself. At that time shocking advertisements were being heavily discussed in the public. This public debate had been sparked, in part, by the Bundesgerichtshof (Federal Court of Justice) decision prohibiting Stern Magazine's publication of advertisements containing repulsive pictures on behalf of the fashion and lifestyle brand Benetton. The magazine complained to the Federal Court of Justice against this judgment, an appeal that generated the dictum quoted above. In November, 2002, the Federal Constitutional Court had another opportunity to characterize the importance of the freedom of expression and the press in competition law, particularly in the context of the publishing industry.

Mounir El Motassadeq - A Missed Chance forWeltinnenpolik?

2007 ◽  
Vol 8 (4) ◽  
pp. 443-453
Author(s):  
Timo Kost
Keyword(s):  
Federal Court ◽  
Criminal Code ◽  
Constitutional Court ◽  
Court Decisions ◽  
Criminal Courts ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Within less than two months, three court decisions were rendered that seem to be the last step in the seemingly never-ending story of Mounir El Motassadeq before German criminal courts. First, on 16 November 2006, the German Federal Court of Justice (Bundesgerichtshof- hereinafter BGH) found Motassadeq guilty for being a member of a terrorist organisation and for abetting the murder of 246 people, according to sections 129 and 211 (27) of the German Criminal Code (Strafgesetzbuch- hereinafter StGB). The court sent the case back to the Higher Regional Court of Hamburg (hereinafter OLG Hamburg), which sentenced Motassadeq to 15 years imprisonment on 8 January 2007. Following the decision of 16 November 2006, Motassadeq lodged a constitutional complaint to the German Federal Constitutional Court (Bundesverfassungsgericht- hereinafter BVerfG), which declined to hear Motassadeq's case on the grounds that the complaint was both inadmissible and unsubstantiated.

Federal Constitutional Court Rejects Ban on Benetton Shock Ads: Free Expression, Fair Competition and the Opaque Boundaries Between Political Message and Social Moral Standards

2001 ◽  
Vol 2 (1) ◽  
Author(s):  
Peer Zumbansen
Keyword(s):  
Third World ◽  
Federal Court ◽  
Free Expression ◽  
Constitutional Court ◽  
Fair Competition ◽  
Court Of Justice ◽  
Moral Standards ◽  
Fashion Designer ◽  
Federal Court Of Justice ◽  
Federal Constitutional

On December 12, 2000, the Federal Constitutional Court (FCC) issued its judgment concerning the controversial “shock” advertising campaign of the Italian fashion designer and retailer United Colors of Benetton. Momentaufnahme reported on the oral arguments before the FCC. (No. 3/2000 - Nov. 15, 2000). The Second Senate of the FCC found the 1995 decisions of the Federal Court of Justice (FCJ), which upheld bans on the Benetton advertisements, to be unconstitutional because the bans constituted an infringement of the constitutionally protected right to freely express one's opinion. The Benetton marketing campaign used large format photography depicting provocative issues, including: a duck smothered in oil, apparently from an oil-spill; children being exploited as laborers in a third-world factory; and a naked buttock bearing the stamp “H.I.V. Positive.” Publication of the Benetton advertisements had been challenged as “unfair competition” by a leading consumer protection group (Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V., Bad Homburg).

Höchstrichterliche Rechtsprechung zum Planungsrecht

2018 ◽  
Vol 51 (4) ◽  
pp. 559-590
Author(s):  
Martin Kment
Keyword(s):  
Federal Court ◽  
Constitutional Court ◽  
Planning Law ◽  
Court Of Justice ◽  
Landuse Planning ◽  
Federal Court Of Justice ◽  
Federal Constitutional ◽  
The Law ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Abstract In the last five years (2014– 2018) judgements of the German Federal Administrative Court (Bundesverwaltungsgericht) have significantly influenced the German planning law (Baugesetzbuch). This article provides a representative overview of these decisions. It also explains their influence on the German planning law with a particular emphasis on the law of urban landuse planning (Bauleitplanung) and building consents (Baugenehmigung). The article also takes into account some decisions of the German Federal Constitutional Court (Bundesverfassungsgericht) as well as the German Federal Court of Justice (Bundesgerichtshof). Both courts have adjudicated on compensation for expropriation. Furthermore, the German Federal Constitutional Court has given advice on the preservation of deficient plans whereas the German Federal Court of Justice also delivered judgements on urbanistic contracts.

An American's View of The Federal Constitutional Court: Karlsruhe's Justices

2001 ◽  
Vol 2 (9) ◽  
Author(s):  
Craig Smith
Keyword(s):  
Federal Court ◽  
Constitutional Court ◽  
City Center ◽  
Supreme Courts ◽  
Court Of Justice ◽  
Capitol Hill ◽  
Federal Court Of Justice ◽  
Federal Constitutional ◽  
German Court ◽  
Modern Building

Few Americans have heard of either Karlsruhe or its courts, the Bundesverfassungsgericht (Federal Constitutional Court) and the Bundesgerichtshof (Federal Court of Justice). Moreover, American lawyers who walk through the unique, Enlightenment-era city center of Germany's seat of justice may be surprised. Karlsruhe's streets are neither the twisting, medieval alleyways of travel brochures that extol Europe's charms nor the grand, straight avenues of Berlin. They are evenly spaced spokes of a rational planner's superimposed wheel. When American lawyers approach the Federal Constitutional Court (FCC), they find a further surprise: The court inhabits a modest, modern building. This unimposing structure is stunningly different from the U.S. Supreme Courts massive marble temple on Washington's unmistakably imperial Capitol Hill. The German court sits quietly, unobtrusively between gardens and lawns around a palace that long ago ceased to be a center of political power. Except for the handful of armed guards, one could easily mistake the court for an ordinary office building or part of the local university.

scholarly journals The Constitutionality of Negotiated Criminal Judgments in Germany

2014 ◽  
Vol 15 (1) ◽  
pp. 81-105 ◽  
Author(s):  
Thomas Weigend ◽  
Jenia Iontcheva Turner
Keyword(s):  
Criminal Law ◽  
German Law ◽  
Plea Bargaining ◽  
Federal Court ◽  
Constitutional Court ◽  
German Version ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Federal Constitutional ◽  
German Constitutional Court

In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. The German version of plea bargaining, which had grown from the grassroots of criminal law practice, was later accepted by the Federal Court of Justice and written into § 257c of the Code of Criminal Procedure (StPO) in 2009. In light of these developments, a verdict of unconstitutionality by the Federal Constitutional Court was the final hope of those who opposed the replacement of the search for truth with a system of negotiation. The Court deflated these hopes, but at the same time refrained from giving an unconditional stamp of approval to the burgeoning practice of negotiating judgments. The Court attempted to rein in that practice by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework.

Multilevel cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund

2010 ◽  
Vol 6 (2) ◽  
pp. 175-198 ◽  
Author(s):  
Andreas Voβkuhle
Keyword(s):  
Human Rights ◽  
Federal Court ◽  
European Convention ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Basic Law ◽  
European Court ◽  
Broad Concept ◽  
Federal Constitutional ◽  
German Constitutional Court

Broad concept of constitutional jurisdiction – Triangle between Karlsruhe, Strasbourg and Luxembourg – European vocation of the German Constitutional Court and Basic Law – European Convention on Human Rights – Karlsruhe decisions can be reviewed in Strasbourg – Human rights-related constitutional court – European Court of Justice developed into constitutional court of the Union – Verbund between three courts – No simplistic hierarchy – Verbund techniques – Dialogue in Human Rights; Interplay in Integration – Federal Constitutional Court and European Court of Human Rights functionally comparable – Both Courts seek substantive coherence as Verbund technique – Federal Constitutional Court commits all German authorities to the Convention – Federal Constitutional Court and ECJ – Principle of openness to European Law – Sharing and assigning responsibilities in complex system – Solange, ultra vires and identity review – Responsibility for integration, due by Court and other German bodies – Federal Court contributes to common European Constitutional order – Europe-wide discursive struggle and ‘Lernverbund’

Does Age Prevent Punishment? The Struggles of the German Juridical System with Alleged Nazi Criminals: Commentary on the Criminal Proceedings Against John Demjanjuk and Heinrich Boere

2010 ◽  
Vol 11 (3) ◽  
pp. 347-365 ◽  
Author(s):  
Susanne Beck
Keyword(s):  
Old Age ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Procedural Law ◽  
Federal Constitutional ◽  
Nazi Era ◽  
German Federal Constitutional Court ◽  
German Citizen

Modern western societies are aging—according to statistical analyses, in 2060, every seventh German citizen will be over 80 years old. The challenges of an aging society occupy jurisprudence and the legal practice. Issues specific to aging offenders and aging victims are more relevant than ever and must be analyzed. The question of old age is one of many problematic aspects of two criminal cases recently decided by the German Federal Constitutional Court. In the following, age's relevance to criminal prosecution and material criminal law will be discussed and related to an analysis of the proceedings of John Demjanjuk and Heinrich Boere, two alleged Nazi criminals, tried in their old age. Demjanjuk's case especially has raised questions well beyond the relevance of his age (89 years). The cases open up many interesting facets of German criminal procedural law and material law connected to the crimes of the Nazi era.

International Treaties and The German Constitution

2019 ◽  
pp. 171-190
Author(s):  
Stefan Kadelbach
Keyword(s):  
German Law ◽  
Foreign Affairs ◽  
European Convention ◽  
Constitutional Court ◽  
International Treaties ◽  
Basic Law ◽  
The Status ◽  
German Constitution ◽  
Federal Constitutional

This chapter deals with the making, status, and interpretation of international treaties under the German Constitution. It describes the interrelationship of the different institutions in treaty-making and shows how a comparatively old provision of the German Basic Law has been adapted slowly to new circumstances over the past decades. Thus, even though foreign affairs has remained a domain of the executive, several developments have contributed to an enhanced role of Parliament over time. These developments are partly due to the role of special sectors of law such as EU law and the law governing the use of force and partly due to changes in constitutional practice. As for the status of treaties in German law, the Federal Constitutional Court has developed a stance according to which treaties generally share the rank of the legal act that implements them into domestic law. A notable exception is the European Convention of Human Rights, which has assumed a quasi-constitutional rank by means of consistent interpretation. Some reference is made to other continental systems to assess how far different constitutions bring about certain features; various systems appear similar in many respects at first sight, whereas features in which they differ may be a source of inspiration for future constitutional practice.

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