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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the Federal Constitutional Court’s Order of 26 June 2014, 2 BvR 2699/10 [CODICES]
Abstract
First Chamber of the Second Senate
Order of 26 June 2014
2 BvR 2699/10

Headnotes (non-official):


1. The Basic Law (Grundgesetz - GG) contains no fundamental right to have third parties prosecuted. Something else may apply to serious crimes against the life, physical integrity, sexual self-determination and freedom of a person, for offences of public officials or offences in which the victims were in some special way being taken care of by the state.

2. The (constitutional) obligation to effective law enforcement refers to the actions of all law enforcement agencies. This does not mean that the obligation in question can only be sufficiently met by bringing a case before the courts. In many cases it will be sufficient if the prosecution and the police investigate the matter and secure the evidence.

Summary:

I.

The applicants are the parents of a 24-year-old man. In 2009 he was shot multiple times by the police and thereby fatally injured, after he had threatened them with a kitchen knife. This happened after repeated calls from the police to put down the knife, a warning shot, and two shots that went through his knee and arm. The applicants believe that the death of their son cannot be justified or excused, and they demand the two police officers involved in this shooting to be prosecuted.

The prosecution had conducted investigations against the participating police officers for (inter alia) manslaughter. It had, however, terminated the proceedings in December 2009, since it had come to the conclusion that the police officers had acted in self-defence pursuant to § 32 of the Criminal Code and that they had not violated other applicable law. The applicants’ complaints against this decision before the prosecution and the Higher Regional Court (Oberlandesgericht) did not have success.

In their constitutional complaint, the applicants claim that their fundamental rights under Article 2.1 in conjunction with Article 20.3 and Article 3.1 GG were violated. They argue that the challenged decision violates their right to effective protection by criminal law, which they derive from Article 2.1 in conjunction with Article 1.1 GG. According to the applicants, the Higher Regional Court had hastily assumed that a situation allowing for self-defence existed in the present case, meaning that the use of firearms was justified. They claim that the fact that the Higher Regional Court had considered the police officers’ actions in total and without limitations as justified under self-defence, was arbitrary and in violation of Article 3.1 GG.

II.

The Federal Constitutional Court held the constitutional complaint unfounded. This decision was based on the following considerations:

The Basic Law contains no fundamental right to have third parties prosecuted. Something else may apply for serious crimes against the life, physical integrity, sexual self-determination and freedom of a person, for offences of public officials or offences in which the victims were in some special way being taken care of by the state.

The (constitutional) obligation to effective law enforcement refers to the actions of all law enforcement agencies. This does not mean that the obligation in question can only be sufficiently met by bringing a case before the courts. In many cases it will be sufficient if the prosecution and the police investigate the matter and secure the evidence. These constitutional requirements for an effective prosecution of crimes also comply with the minimum standard set out in Article 2 in conjunction with Article 1 ECHR.

According to the established case-law of the Federal Constitutional Court, the guarantees of the ECHR, in their interpretation by the European Court of Human Rights, must be considered in interpreting the fundamental rights of the Basic Law, unless this would lead to an unintentional (cf. Article 53 ECHR) limitation or reduction of the protection of fundamental rights under the Basic Law.

From Article 2 ECHR in conjunction with the general obligation of the state under Article 1 ECHR to “secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention” follows an obligation of the signatory states to provide an effective official investigation when a person has suffered a violent death.

The challenged decision of the Higher Regional Court meets those requirements. It neither fails to recognise the importance of the fundamental right to life, nor does it misunderstand the requirements for an effective prosecution of crimes. In its decision which comprised more than 30 pages, the Higher Regional Court dealt in detail with the results of the investigations as well as with the complaints and concerns raised by the applicants. The court came to a conclusion that is in any case defensible. Nor does the challenged decision violate the general principle of equality (Article 3.1 GG) in its form of a prohibition of arbitrariness. The Higher Regional Court did not employ any irrelevant considerations in rejecting the application of the applicants. It reconstructed in detail and as far as possible what had happened before and during the fatal shooting. In doing so, it discovered no signs of incomplete or biased investigations that aimed at protecting the accused officers.

Languages available

Additional Information

ECLI:DE:BVerfG:2014:rk20140626.2bvr269910

Please note that only the German version is authoritative. Translations are generally abriged.