## Facts

- Rudolf Hess was a senior Nazi leader and member of Adolf Hitler’s inner circle.
- Captured in 1941, Hess remained in custody through World War II.
- After the war, the International Military Tribunal at Nuremberg convicted Hess of war crimes and sentenced him to life imprisonment.
- Hess served his sentence in Spandau Prison in Berlin under a Four-Power administration (United States, United Kingdom, France, and the Soviet Union).
- Decisions on release or sentence modification required unanimous agreement among the Four Powers.
- After approximately 38 years of imprisonment, Hess—about 86 years old—sought release on humanitarian grounds.
- The Federal Republic of Germany requested Hess’s release on humanitarian grounds, but the Soviet Union refused to consent, preventing unanimity.
- Hess brought proceedings in German courts claiming that Germany, as his state of nationality, was legally required to continue pursuing his release through legal and other international measures.
- After unfavorable outcomes in the lower courts, Hess pursued constitutional relief before the Federal Constitutional Court, seeking to compel the Federal Government to take further action aimed at obtaining his release.

## Issues

1. Whether a German national has a judicially enforceable right to require the Federal Republic of Germany to exercise diplomatic protection, or take specific international measures, to secure his release from detention controlled by other states under a Four-Power regime.
2. Whether, and how far, German courts may review and direct the Federal Government’s choices in foreign affairs regarding efforts to obtain Hess’s release.
3. Whether constitutional guarantees or rules of public international law required Germany to pursue particular fora or legal avenues (including possible recourse to international bodies) to challenge or change Hess’s continued imprisonment.
4. Whether the duration of the domestic proceedings violated a constitutional right to a decision within a reasonable time.

## Decision

- The Federal Constitutional Court dismissed Hess’s constitutional complaint.
- The Court held Hess had no enforceable right to compel Germany to take particular diplomatic or international steps to obtain his release.
- The Court treated the selection and intensity of foreign-relations measures as largely committed to the Federal Government’s political judgment, with only narrow judicial control.
- The Court found no constitutional violation arising from Germany’s inability to achieve Hess’s release, given that release depended on unanimous Four-Power consent.
- The Court rejected the claim that delay in the domestic proceedings, in the circumstances of the case, amounted to a constitutional violation.

## Legal Principles

- Diplomatic protection in international law is generally a state prerogative; it does not normally create an individual, court-enforceable claim to have the state pursue a specific international strategy on the individual’s behalf.
- Courts may review foreign-affairs conduct only in a restrained way; they may check for clear constitutional breaches, but they do not direct diplomatic tactics or substitute their own evaluation for that of the political branches.
- Where the requested result depends on the agreement or actions of other sovereigns, domestic constitutional law cannot convert that dependency into an enforceable duty to achieve the result.
- In matters arising from the execution of post-war arrangements and an international criminal judgment administered by multiple powers, a national government’s room for unilateral action may be limited; constitutional duties cannot be read as requiring measures that would not overcome those external controls.
- A constitutional interest in completion of proceedings within a reasonable time does not mean any lengthy proceeding is unconstitutional; the assessment depends on the case context, including complexity and the nature of the questions raised.

## Conclusion

Hess v. Federal Republic of Germany holds that Hess could not use German constitutional litigation to force the Federal Government to pursue specific diplomatic or legal initiatives to obtain his release from Spandau Prison, because decisions in foreign affairs are largely for the political branches and Hess’s release depended on unanimous Four-Power consent; the Court also found no constitutionally unacceptable delay in the handling of his claims.


Hess v. Federal Republic of Germany, 90 ILR 387 (1980)