Not prosecuting a Colonel and a Master Sergeant of the Bundeswehr following an air strike in Kunduz (Afghanistan) does not violate the Basic Law

Press Release No. 45/2015 of 19 June 2015

Order of 19 May 2015
2 BvR 987/11

Ending the investigative proceedings initiated against a Colonel and a Master Sergeant of the Bundeswehr [German Armed Forces] following an air strike [translator’s note: of allied forces] in Kunduz, Afghanistan, does not raise constitutional concerns. Such was the decision by the Third Chamber of the Second Senate of the Federal Constitutional Court in an order published today. The decision by the Public Prosecutor General of the Federal Court of Justice (Generalbundesanwalt – Public Prosecutor General) to end proceedings and the decision of the Higher Regional Court (Oberlandesgericht) Düsseldorf comply with the constitutional requirements for effective investigations into the circumstances of fatalities. The air strike in Kunduz, Afghanistan, in September 2009, had led to many fatalities – including civilians; the complainant is the father of two children who were killed.

Facts of the Case and Procedural History:

The complainant is the father of two children who were killed by an air strike [translator’s note: of allied forces] in Kunduz, Afghanistan, on the night of 3 September 2009. He reported the alleged criminal offence accusing a Colonel and a Master Sergeant of the Bundeswehr of committing it. The Colonel, being the military commander of the Provincial Reconstruction Team (PRT) in Kunduz, had ordered the air strike; the Master Sergeant was involved as tactical air controller of the PRT Kunduz. Two petrol trucks had been hijacked by armed members of the Taliban and were stuck on a sandbank in the river Kunduz. The air strike was ordered on the assumption that the trucks could at any time be used to attack the nearby Bundeswehr camp by turning them into “rolling bombs” and that the persons in the vicinity of the trucks were either members or at least supporters of the Taliban. In the end, however, the air strike caused many fatalities, many of which amongst the civilian population.

By decision of 13 October 2010, the Public Prosecutor General ended the investigative proceedings [against the Colonel and the Master Sergeant] that had been initiated against them for suspicion of criminal offences according to the International Criminal Code (Völkerstrafgesetzbuch) and other criminal offences, as there were no sufficient grounds for an indictment. By decision of 16 February 2011, the Düsseldorf Higher Regional Court dismissed as inadmissible an application for a court decision.

Key Considerations of the Chamber:

The Public Prosecutor General’s decision to end proceedings of 13 October 2010 and the decision of the Düsseldorf Higher Regional Court of 16 February 2011 are not objectionable under constitutional law.

1. The complainant demands criminal prosecution of an act that, taking into account only the actus reus, constitutes a war crime under the International Criminal Code and, with regard to general criminal law, murder under specific aggravating circumstances pursuant to the German Criminal Code (Strafgesetzbuch). At the same time, there is an accusation that a holder of public office not only committed a criminal offence in the exercise of his official duties, but also caused the death of a human being. It is in this regard that the complainant as a father – via Art. 6 sec. 1 and sec. 2 sentence 1 in conjunction with Art. 2 sec. 2 and Art. 1 sec. 1 sentence 2 of the Basic Law (Grundgesetz – GG) – has a right to effective criminal prosecution. As failure to effectively prosecute such acts may shake the confidence in the integrity of state action, the mere appearance that such acts are inadequately investigated, that investigations against holders of public office are less effective, or that, in such a context, the threshold for an indictment is higher, must be avoided.

2. The Public Prosecutor General’s decision of 13 October 2010 satisfies these requirements. It does not fail to recognise neither the significance of relevant fundamental rights in the context of the protection of life and the entailing positive obligations incumbent upon the state, nor the requirements for effective investigations into fatalities that derive from the jurisprudence of the Federal Constitutional Court and the European Court of Human Rights. This also holds true considering that the attack on the petrol trucks entailed the most serious consequences, in particular a large number of victims amongst the civilian population, including children and adolescents.

The decision describes the investigation conducted and, based on those findings, concludes that there is no probable cause. It finds that the statements of the accused in which they argue that they had believed that the persons in the immediate vicinity of the trucks were armed insurgents, cannot be rebutted. Therefore, it finds that the mens rea of the criminal offence is not present. This conclusion is not arbitrary and therefore is not objectionable under constitutional law. […]

c) Likewise, the Higher Regional Court’s decision of 16 February 2011 does not raise constitutional concerns. Since the investigations conducted, and documented respectively, by the Public Prosecutor General meet the requirements under constitutional law, a subsequent judicial review decision cannot (no longer) violate the right to effective criminal prosecution.

d) Nor did it fail to recognise the significance and the scope of the fundamental right to effective judicial protection. If the complainant significantly relies on the content of the investigative file in stating the reasons for his application for a court decision, he is obliged to communicate at least the essential content of the evidence of which he submits excerpts or quotations. Reproducing statements of the accused or of witnesses only in part and selectively may create a wrong impression of the result of the investigation, which cannot be easily corrected. The complainant did not meet these requirements in the case at hand.