Summary:

I.

The constitutional complaint relates to the compatibility of § 153f.2 sentence 1 no. 4 of the Code of Criminal Procedure (hereinafter: the Code) with the right to a lawful judge set out in Article 101.1 sentence 2 of the Basic Law.

In accordance with the impugned provision of the Code, the public prosecution office may in particular dispense with prosecuting a criminal offence pursuant to §§ 6 to 14 of the Code of Crimes against International Law (including crimes against humanity) if the offence is being prosecuted before an international court of justice.

The applicant, a Rwandan national resident in France, was placed in French detention awaiting extradition on the basis of an arrest warrant of the Pre-Trial Division of the International Criminal Court of 28 September 2010. He is accused of being responsible for crimes against humanity and war crimes. These are said to have been committed by militia members under his command in the Democratic Republic of Congo between January and December 2009.

The Federal Public Prosecutor General (Generalbundesanwalt) at the Federal Court of Justice (Bundesgerichtshof) also initiated investigations against the applicant. In view of the investigation proceedings pursued by the Office of the Prosecutor of the International Criminal Court, the Federal Public Prosecutor General, however, dispensed by an order of 3 December 2010 – in accordance with § 153f.2 sentence 1 no. 4 of the Code – with prosecuting the criminal offences of which the applicant is accused insofar as he is suspected of having committed crimes against humanity and war crimes in accordance with §§ 7, 8, 9 and 11 in conjunction with § 4 of the Code of Crimes against International Law.

The applicant submits in essence that he has been denied his lawful judge counter to Article 101.1 sentence 2 of the Basic Law. The Federal Public Prosecutor General is said to have brought about the jurisdiction of the International Criminal Court in accordance with Article 17.1(a) of the Rome Statute of the International Criminal Court of 17 July 1998 by dispensing with prosecuting the criminal offences of which the applicant is accused. § 153f.2 sentence 1 no. 4 of the Code is said to leave the determination of the court with jurisdiction to a politically dependent authority which is bound by instructions. It is said to be a discretionary provision pure and simple which is said to lead to an option on the part of the executive.

II.

The constitutional complaint is unfounded.

§ 153f.2 sentence 1 no. 4 of the Code does not violate Article 101.1 sentence 2 of the Basic Law, given that the area in which the latter provision provides protection is not affected.

The discretion of the public prosecution office otherwise existing in relation to offences committed abroad is restricted with regard to § 153f of the Code for those offences which fall under the Code of Crimes against International Law. This is intended to prevent, by means of international solidarity in criminal prosecution, international criminal offences from remaining unpunished. In the light of universal jurisdiction, it must be presumed as a matter of principle for all criminal offences in accordance with the Code of Crimes against International Law, regardless of the place of commission of the crime and the nationality of the persons involved, that the German courts have jurisdiction and that the public prosecution office is obliged to intervene in accordance with the principle of mandatory prosecution. When it comes to cases which are subject to universal jurisdiction, however, there is a “graded priority of jurisdiction”. It is the state in which the crime took place and the home state of the offender and of the victims which are primarily called on to prosecute, secondly the International Criminal Court and, where appropriate, other international criminal courts, and thirdly third states acting in accordance with universal jurisdiction. Over and above this, overstraining the German investigation resources with cases which have no link to Germany should be avoided.

On this basis, § 153f of the Code permits discretion to be exercised in two directions. For cases with a domestic link, there is the obligation to prosecute as a matter of principle. If there is no such domestic link, however, it is possible to dispense with prosecuting a criminal offence “in particular” if prosecution is being carried out by an international court of justice or by the country in which the offence was committed or in the home state of the offender(s) or victim(s).

It is possible to consider a functional cross-over between German and international jurisdiction insofar as an international court may also be covered by the area protected by the right to a lawful judge. There is also a functional connection between German and international criminal jurisdiction insofar as, in accordance with § 153f.2 sentence 1 no. 4 of the Code, the public prosecution office may dispense with prosecuting a criminal offence for which there is criminal liability pursuant to §§ 6 to 14 of the Code of Crimes against International Law with regard to criminal proceedings pursued before the International Criminal Court. This connection however does not lead to a cross-over in the sense of the International Criminal Court being functionally incorporated into national jurisdiction.

In contradistinction to the applicant’s view, dispensing with prosecuting a criminal offence in accordance with § 153f.2 sentence 1 no. 4 of the Code does not give rise to the International Criminal Court’s jurisdiction. The formal, substantive and temporal jurisdiction of the International Criminal Court, rather, emerges from Articles 5, 11 and 12 of its Statute. Article 17.1 of the Statute, mentioned by the applicant, concerns the principle of complementarity, and relates to the admissibility of proceedings before the International Criminal Court. Accordingly, the International Criminal Court can only act on a case if the state which has jurisdiction over it is unwilling or unable to carry out the investigation or prosecution. Proceedings before the International Criminal Court are hence not admissible as a matter of principle if national proceedings are taking place or have already taken place.

The application submitted could be interpreted such that dispensing with prosecuting a criminal offence in accordance with § 153f.2 sentence 1 no. 4 of the Code leads at least to the admissibility of proceedings before the International Criminal Court. However, this is also not the case. If Article 17.1. (a) and (b) of the Statute is to be taken literally and the state competent for the case would be the state “which has jurisdiction over it”, dispensing with prosecuting a criminal offence in Germany would have to lead to criminal proceedings before the International Criminal Court being inadmissible. If, by contrast, the provisions are restrictively interpreted such that priority jurisdiction vis-à-vis the International Criminal Court were only granted to the state in which the offence was committed and to the home state of the offender(s) or victim(s), but not to a third state acting in accordance with universal jurisdiction, criminal proceedings before the International Criminal Court would already be admissible regardless of dispensing with prosecuting a criminal offence.

The fact that the public prosecution office has no option in terms of which court it brings charges in respect of an offence which is punishable in accordance with §§ 6 to 14 of the Code of Crimes against International Law also speaks against a functional cross-over between national and international jurisdiction. It can only bring charges with a German court, and not before the International Criminal Court.