Kunduz: Constitutional Complaint Lodged

18 March 2011 As part of an effort to achieve further criminal prosecutions in the case of the September 2009 air attack on Kunduz, ECCHR is supporting a constitutional complaint by a father who lost his two sons in the attack. The aerial attack took place on 4 September 2009, at the order of the German Army Colonel, Georg Klein. Following the cessation of the federal prosecutor's investigation in April 2010, the Düsseldorf Higher Regional Court rejected an appeal to examine the procedures involved in the case.

In November 2010 Attorney Wolfgang Kaleck had filed a petition to the higher regional court in Düsseldorf calling for public charges and investigations against Colonel Klein and Sergeant Major Wilhelm regarding the air attack on Kunduz.

The extensive pleading attacks the inadequacy of investigations carried out to date through the General Federal Prosecutor, and includes substantial amounts of evidence. According to German proceedings to force criminal prosecution (the so-called ‚Klageerzwingungsverfahren'), those injured by a criminal act are entitled to call for a legal examination of any decision to suspend investigations.

The petition addresses numerous procedural mistakes made during the investigative proceedings and submits them to the court for judgment. The criminal evaluation argues principally that the accused failed to take adequate information measures before giving the order to attack. International law professor Marco Sassòli and Anne-Laurence Brugère (University of Geneva) support this argumentation in an expert legal opinion submitted as part of the petition. The opinion describes safety measures for conducting attacks as stipulated by international humanitarian law, and presents the relationship between such measures and the principle of proportionality. Another expert legal opinion by professor Florian Jeßberger (University of Hamburg) supports the request for further investigations, because the German Federal Prosecutor has not been competent to suspend the investigations completely.

The constitutional complaint submitted on 17 March 2011, primarily addresses the right of access to the courts to bring about an examination of the federal prosecutor's dismissal decision. The German prosecuting authority's handling of victims connected to the bombing also comes under the spotlight. Fur­ther­more, ECCHR criti­cizes German authorities for vi­o­lat­ing their du­ty under the Eu­ro­pean Con­ven­tion on Hu­man Rights to effectively in­vesti­gate deaths caused by state officials.