forumpoenale_2_2008

76

JURISPRUDENCE

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

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

forum poenale

2/2008