Investigations and Prosecution

31 August 2010 The criminal investigations conducted so far have been insufficient. First, the initially competent Public Prosecutor in Potsdam referred the file to the Prosecutor in Dresden, because the suspected person, Colonel Klein, was stationed in this court district. The Public Prosecutor in Dresden then referred the case to the Federal Prosecutor in Karlsruhe, since war crimes had allegedly been committed and such a case the Federal Prosecutor has jurisdiction, not the Public Prosecutor in one of the German federal states.

The Federal Prosecutor terminated his investigations in April 2010 regarding the alleged commission of war crimes, after having received statements by the suspects and others involved in the air strike. As stated in the press release of the Federal Prosecutor, only the perspective of the suspect was considered according to the relevant provisions in the German Code of Crimes against International Law.

The lawyers in this case, who had announced their representation to the Federal Prosecutor, never received a formal notice of the termination of the investigations. Without this notice, no appeal and judicial review of the Federal Prosecutor's decision is possible. Furthermore, the lawyers were denied access to the files and they were not allowed to file their own statement before the decision to terminate the investigations was made. They only were informed about the termination of investigations through the press release. The Federal Prosecutor never gave reasons why the investigation was terminated, although he is obliged under German law to give reasons. Generally, it is standard procedure to allow the lawyers to comment on the investigations before they are terminated. As a justification for denying access to the files during the ongoing investigations, the reason given was that the represented victims were still potential witnesses. But in the end the file was closed without hearing any statement from the victims and without allowing access to the files. At the very latest upon the decision not to have any victims testify, access to the files should have been granted - also following their own reasoning - but was again denied. Procedural rights have hence been violated continuously.

Surprisingly, the Federal Prosecutor also terminated the investigations regarding all alleged crimes under the regular German criminal code. Only the Public Prosecutors' Offices of the federal states are permitted to make this decision, but not the Federal Prosecutor. The latter must refer a case dealing with pure German criminal law back to the competent Public Prosecutor's Office in a federal state, if there is insufficient evidence for the commission of an international crime such as a war crime. For this reason, a request has been filed with the Public Prosecutor in Dresden to continue the previous investigations.

The investigations under national criminal law are - regarding a possible justification of the act - also based on relevant provisions of the Geneva Conventions and their Additional Protocols as well as on customary rules. These provisions are slightly different from those of the German Code of Crimes against International Law. The subjective view of the suspect is less relevant, instead the perspective of a reasonable third person is decisive for the decision to attack.

The German army announced in August 2010, that possible disciplinary measures will not be taken and no provisions of the German military code have been violated.

Even a negative decision by the prosecutors' offices may be subject to judicial review. A higher district court has the competence to decide whether the prosecutors' decisions were correct. There are also complaint mechanisms available on the international level, e.g. regarding the duty to conduct genuine investigations, which is part of various human rights treaties.