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JURISPRUDENCE
76
forum
poenale
2/2008
109. In deciding, secondly, whether the domestic courts’
interpretation of the crime of genocide by the domestic
courts could reasonably be foreseen by the applicant at the
material time, the Court notes that the applicant is the first
person to be convicted of genocide by German courts un
der Article 220a since the incorporation of that Article into
the Criminal Code in 1955. In these circumstances, the
Court finds that, as opposed to cases concerning a rever
sal of pre-existing case-law, an interpretation of the scope
of the offence which was – as in the present case – consis
tent with the essence of that offence, must, as a rule, be
considered as foreseeable. Despite this, the Court does not
exclude that, exceptionally, an applicant could rely on a
particular interpretation of the provision being taken by
the domestic courts in the special circumstances of the
case.
110. In the present case, which concerns the interpreta
tion by national courts of a provision stemming from pub
lic international law, the Court finds it necessary, in order
to ensure that the protection guaranteed by Article 7 § 1 of
the Convention remains effective, to examine whether there
were special circumstances warranting the conclusion that
the applicant, if necessary after having obtained legal
advice, could rely on a narrower interpretation of the scope
of the crime of genocide by the domestic courts, having re
gard, notably, to the interpretation of the offence of geno
cide by other authorities.
111. The Court notes in this connection that at the ma
terial time the scope of Article II of the Genocide Conven
tion, on which Article 220a of the Criminal Code is based,
was contested amongst scholars as regards the definition of
«intent to destroy a group». Whereas the majority of legal
writers took the view that ethnic cleansing, in the way in
which it was carried out by the Serb forces in Bosnia and
Herzegovina in order to expel Muslims and Croats from
their homes, did not constitute genocide, a considerable
number of scholars suggested that these acts did indeed
amount to genocide (see paragraph 47 above).
112. The Court further observes that – also after the ap
plicant committed the impugned acts – the scope of geno
cide was interpreted differently by the international author
ities. It is true that the ICTY, in its judgments in the cases of
Prosecutor v. Krstic and Prosecutor v. Kupreskic, expressly
disagreed with the wide interpretation of the «intent to de
stroy» as adopted by the UN General Assembly and the Ger
man courts. Referring to the principle of nullum crimen sine
lege, the ICTY considered that genocide, as defined in pub
lic international law, comprised only acts aimed at the phys
ical or biological destruction of a protected group. How
ever, as the judgments of the ICTY – as well as further
decisions concerning this subject matter taken by national
and international courts, in particular the International
Court of Justice (see paragraph 45 above [judgment of
26 February 2007 in the case of Bosnia and Herzegovina
v. Serbia and Montenegro]), in respect of their own domes
tic or international codifications of the crime of genocide –
were delivered subsequent to the commission of his offenc
es, the applicant could not rely on this interpretation being
taken by the German courts in respect of German law at the
material time, that is, when he committed his offences.
113. In view of the foregoing, the Court concludes that,
while many authorities had favoured a narrow interpreta
tion of the crime of genocide, there had already been sever
al authorities at the material time which had construed the
offence of genocide in the same wider way as the German
courts. In these circumstances, the Court finds that the ap
plicant, if need be with the assistance of a lawyer, could rea
sonably have foreseen that he risked being charged with and
convicted of genocide for the acts he had committed in 1992.
In this context the Court also has regard to the fact that the
applicant was found guilty of acts of a considerable severi
ty and duration: the killing of several people and the deten
tion and ill-treatment of a large number of people over a pe
riod of several months as the leader of a paramilitary group
in pursuit of the policy of ethnic cleansing.
114. Therefore, the national courts’ interpretation of the
crime of genocide could reasonably be regarded as consis
tent with the essence of that offence and could reasonably
be foreseen by the applicant at the material time. These re
quirements being met, it was for the German courts to de
cide which interpretation of the crime of genocide under do
mestic law they wished to adopt. Accordingly, the applicant’s
conviction for genocide was not in breach of Article 7 § 1
of the Convention.
[…]
Bemerkungen:
Der vorstehend abgedruckte Entscheid enthält Ausführungen
zu zwei Problembereichen, die auch für das schweizerische
Recht von Bedeutung sind: Der EGMR legt zum einen dar,
dass die Inanspruchnahme des Weltrechtsprinzips im Rah
men der Verfolgung von Völkermord mit den Vorgaben der
EMRK an ein «tribunal established by law» (Art. 6 Abs. 1
EMRK) zu vereinbaren ist; zum anderen wird es als mit
Art. 7 EMRK vereinbar anerkannt, dass die deutschen Straf
gerichte die im Rahmen des deutschen Völkermordtatbe
stands vorgesehene «Absicht, eine nationale, rassische, reli
giöse oder ethnische Gruppe als solche ganz oder teilweise zu
zerstören» (vgl. Art. 6 Abs. 1 VStGB, der zwischenzeitlich an
die Stelle des wortgleichen § 220a StGB getreten ist) dahin
gehend interpretiert haben, dass eine physische Einwirkung
im Sinne einer Auslöschung der Gruppenmitglieder nicht
zwingend erforderlich ist (vgl. BVerfG NStZ 2001, 240, 241;
BGHSt 45, 64, 80; Jähnke, in: Jähnke/Laufhütte/Odersky
(Hrsg.), Strafgesetzbuch, Leipziger Kommentar, 11. Aufl.,
5. Band, Berlin 2005, § 220a N 13; kritisch hierzu Kress, in:
Joecks/Miebach (Hrsg.),Münchener Kommentar zum Straf
gesetzbuch, Band 3, München 2003, § 220a/§ 6 VStGB N 71