Jurafuchs Podcast Spruchreif KLASSIKER: »Mauerschützenfall« / with Dr. Carl-Wendelin Neubert

To German Constitutional Court, Judgment from 24 October 1996 – 2 BvR 1851/94 u.a.

Conversation with Carl-Wendelin Neubert and Emanuel V. Towfigh

Podcast, 52:55 minutes • Recording Date: 27 March 2023 • Published on 28 July 2023


In their attempt to cross the inner-German border, more than 100 unarmed people were shot by GDR border guards between 1961 and 1989 or died in direct connection with the GDR border regime.
After the fall of the Wall, both former »Mauerschützen« and those politically and militarily responsible for the »shoot-to-kill« order of the SED regime were sentenced by German criminal courts.
In its highly regarded »Mauerschützen« decision, the Federal Constitutional Court upheld several criminal court rulings (decision of October 24, 1996 – 2 BvR 1851/94 et al.). The Constitutional Court found in favor of the law that the use of firearms was also punishable under GDR law and did not consider the conviction to be a violation of the retroactivity requirement (Article 103 II of the Grundgesetz).
Professor Emanuel V. Towfigh, Chair of Public Law, Empirical Legal Research and Legal Economics at the EBS University of Economics and Law, recalls this fundamental leading decision and embeds it in its context:

  • What was the practice of GDR firearms use at the inner-German border?
  • What were the legal bases for the use of firearms at the inner-German border under GDR law?
  • Why were the Mauerschützen and those behind them punished under the criminal law of the Federal Republic of Germany?
  • What does the prohibition of retroactivity (Article 103 II of the Grundgesetz) mean?
  • Why is there an exception to the prohibition of retroactivity in the present case?
  • How does Radbruch’s formula come into play here?
  • How should the decision be classified?
  • In the Smartbook Grundrechte by Professor Towfigh and Alexander Gleixner, you will find systematic explanations of the prohibition of retroactivity, the Mauerschützen case, and the other fundamental rights of justice.
    You can find a detailed treatment of the Mauerschützen decision on the Jurafuchs learning platform (here).

    Click here for the court ruling. You can learn more about Spruchreif and Jurafuchs at www.jurafuchs.de.


    [Translated by DeepL]