Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
Section A. Cooperation between States
Germany’s Law on International Legal Assistance in Criminal Matters (1982) states:
§ 1 Scope of application
(1) Legal assistance in criminal matters with foreign countries is based on this law.
(3) Provisions of international agreements, insofar as they have become directly applicable domestic law, have priority over the provisions of this law.
In 2010, in the DRC case, Germany’s Federal Court of Justice decided to remand in pre-trial custody a national of the Democratic Republic of the Congo (DRC) who had been living in Germany. The Court summarized the facts of the case as follows:
The subject of the arrest warrant is the allegation that as the president of the paramilitary militia organization “Forces Démocratiques de Libération du Rwanda” [Democratic Forces for the Liberation of Rwanda] (hereafter FDLR), which is operating in the provinces North Kivu and South Kivu of the Democratic Republic of [the] Congo … , the accused is criminally liable because he is responsible as superior for crimes against humanity and war crimes and as the ringleader of a terrorist group abroad.
The Court held:
6. The particular conditions necessary for extending pre-trial custody beyond the period of six months … are fulfilled. Because of particular difficulties faced by the investigations and due to their sizable scope, it has not yet been possible to reach a judgment and therefore the continuation of pre-trial custody is justified.
After the accused’s arrest, a number of investigations were conducted, some of which were extensive and time-intensive. The crimes were largely committed in the DRC and thus in a Central African country. Their prosecution by the German criminal authorities required inter alia
various investigative measures involving mutual assistance requests to foreign authorities. Submitting requests for mutual assistance to other countries and the United Nations requires a sizable effort. This is particularly true for the questioning of witnesses in the DRC. The situation there requires that intensive measures be taken to locate witnesses and to prepare and carry out the questioning.
In 2010, in its report on German human rights policy in the context of foreign relations and other policy areas between 1 March 2008 and 28 February 2010, which was submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
The office of the prosecutor responsible for the prosecution of crimes under the VStGB [International Crimes Code] is the Federal Prosecutor General at the Federal Court of Justice. Together with the Central Unit for the Fight against War Crimes of the Federal Criminal Police Office, the Federal Prosecutor General keeps an eye on the human rights situations in the hotspots and crises around the world. To this end, the Federal Prosecutor General established various observation procedures which make it possible to initiate targeted investigation proceedings on short notice if information on international crimes that can be used for judicial purposes is received. Moreover, he stays in touch … with national war crimes units of other States in order to ensure information exchange.
In 2010, in its report on the implementation of UN Security Council Resolution 1325 on “Women, Peace and Security” between July 2007 and July 2010 submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
On the basis of international treaties and domestic law, Germany is … providing legal assistance to foreign authorities … carrying out criminal proceedings against those responsible for genocide, crimes against humanity and war crimes. Since May 2007, members of staff of the focal points with jurisdiction over persons responsible for genocide, crimes against humanity and war crimes have been meeting annually. The Federal Prosecutor General has initiated proceedings concerning genocide in Rwanda which involve comprehensive cooperation within the framework of mutual legal assistance.