The New Worker

The Weekly paper of the New Communist Party of Britain

Persecution in Germany's courts

Statement by :-
Professor Dr Manfred Gerlach
Dr Hans Reichelt
Dr Hans Modrow
Gerald Getting
Professor Dr Gerhard Fischer

SIX years after German reunification the Federal Republic of Germany is increasingly engaged in a persistent political incrimination of citizens of the former German Democratic Republic (GDR).

New investigations of, and trials for, activities which were sanctioned by the constitution and laws of the GDR are now daily events. Numerous trials have already been concluded and decisions handed down.

More than ten thousand cases are pending or being prepared for trial.

On 12 November 1996 the Federal Constitutional Court, which is the highest German court, rejected an appeal -- in the name of Heinz Kessler, Minister of Defence of the GDR, his assistant Fritz Streletz, Hans Albrecht, General Secretary of the SED (Party of Socialist Unity), and one border guard -- against the lengthy prison terms to which they have been sentenced.

With this decision, the court abrogated the principle of "no penalty where no law applies" in the case of GDR citizens. It thereby created a two-tiered legal system in Germany and gave a signal for continuing, indeed broadening, the politically segregated administration of law. Following the Constitutional Court's decision, citizens of the former GDR, who had been sentenced, had their bail revoked and were immediately imprisoned.

Those sentenced to, or threatened with, particularly severe prison terms are important political figures and officers of the people's army of the former GDR. They are accused of being responsible for fatalities at the border between the GDR and Federal Republic of Germany (FRG).

This completely overlooks the fact that this was the border which separated Nato and the Warsaw Pact countries, a border across which two opposing, heavily armed military forces faced each other for over forty years, and where, unfortunately, there were fatalities on both sides.

Similarly the historically documented fact is not taken into account, that decisions to do with that border were, in the final analysis, not under the jurisdiction of the GDR but of the Soviet Union, the leading power of the Warsaw Pact.

On the opposite side, things were not that different; the United States, as the dominant power in Nato, also had the final say. The human tragedies that occurred at the border between Nato and the Warsaw Pact countries are part of the history of the Cold War and an expression of its "balance of terror".

Judges and state attorneys are being tried and convicted for legal proceedings and decisions which were in keeping with the constitution and penal code of the GDR.

Particularly grievous are the trials and convictions of venerable men and women from the legal profession, who, as anti-fascists were persecuted by the courts in Nazi Germany, and whe then,after the Second World War, sentenced fascist war criminals and mass murderers in accordance with the Potsdam Treaty.

For that they are now being put on trial by the judicial authority of the FRG and being classed as criminals.

Leading officials and their staff from the ministries and administrative offices of the GDR are being indicted and convicted.

Hundreds of officers of political parties and organisations are being subjected to judicial persecution. They are all being incriminated now because they fulfilled their sovereign duty according to laws passed by the Volkskammer (People's Assembly) -- the highest elected body in the GDR.

The extent to which citizens of the former GDR are being persecuted by the judicial authority of thc FRG is shown by the fact that a special central office has been set up in Berlin solely for this purpose.

Those working in this office, as well as in the state's attorneys' office and the chambers of the respective courts of justice, are, almost exclusively civil servants and judges from the west of Germany.

Thus a special segregated administration of justice is established; and it will continue its activities, according to Bonn, well into the next century, turning more and more groups of former GDR citizens into citizens with a criminal record.

It is understandable that many of these former GDR citizens are very apprehensive about the interrogations, hearings and trials. They live in a state of permanent legal uncertainty.

They have experienced injury to their dignity and self-esteem, and deem these proceedings by the power of the state to be vengeful conquerors justice.

Even those who are not directly affected feel incriminated and degraded to second class human beings.

The judicial persecution of citizens of the former GDR by west German court officials is the resuit of a mandate from the FRG government. This mandate was given, during the 15th convention of German lawyers in September 1991, by the erstwhile minister of justice -- the present foreign minister Klaus Kinkel, cloaked in the demand that the GDR and "the SED regime be made illegitimate".

The goal being to deny the GDR, which had only been recognised by the FRG against its will anyway, the right to its existence after the fact, to defame it as an "evil empire", and to incriminate all who served it.

These massive interrogations, hearings and court proceedings are clearly cases of political trials, of ideological justice, even if this is denied in the courtroom.

These procedures by the executive power of the FRG violate basic principles of international law, judicial norms binding for all countries.

It violates international law which requires equal treatment and the sovereignty of all member states of the United Nations, in accordance with the UN charter.

The GDR was, like the FRG, a member of the UN, a sovereign state, subject to international law: it was recognised by 130 nations. The FRG does not have the right to negate GDR sovereignty after the fact or to pass judgement on another member state of the UN.

It violates the basic contract between the FRG and the GDR signed on the 21 December 1972. Article Six of the contract states: "The German Democratic Republic and the Federal Republic of Germany will act on the principle that the sovereign power of each of the two states shall be restricted to within its territory. They will respect the independence and self- determination of each of the two states with respect to internal and external affairs". Even after the unification of the two states the contract cannot be retropectively cancelled.

It violates the 2+4 contract of 1990 between the governments of the GDR and the FRG on the one hand and with the four main victorious powers of the Second World War on the other, through which the unification of the two states was made possible. This contract granted neither side the authority for judicial retaliation.

It violates the unification contract of 31 August 1990 which specifically decrees that citizens of the GDR can only be indicted for actions that were punishable under the laws of the GDR.

It violates the generally applicable international ex post facto principle which is also binding for Germany.

Its own constitution states in Article 10S (2) "An act can be penalised only if the penalty was written into law before the act was carried out".

The FRG also signed the "Fifth Convention for the Protection of Human Rights and Basic Freedoms" of 4 November 1950, in which it clearly stated: "No person can be convicted for an act, or a negligence, which at the time it was carried out was not subject to penalty under national or international law.

It also violates all statutes of limitations. The judicial authority of the FRG is allowing citizens of the former GDR to prosecuted for acts that, by now, are far beyond the statute of limitation, besides not having been punishable under GDR law.

This has been made possible by way of retaliatory law specially created to settle accounts with the GDR and its citizens.

In addition to violating norms of international law, the judicial authority and the courts, in actual practice, violate their regulations and duties insofar as they consider and present only burdening evidence and hardly ever that which exonerates.

The right to be considered innocent until proven guilty is also seldom recognised by their procedure.

In particular, state attorneys and judges refuse to take into account the loyalty pledges which office holders in the GDR made to their country. Such pledges existed there just as they do in any other country.

In this way the special segregating justice the FRG uses against the citizens of the former GDR, sets itself above intemationally accepted legal norms and interprets the law exclusively according to the will of the present government.

The decision handed down by the Federal Constilutional Court in November 1996 ignores all the aforementioned international, as well as national, legal norms that would hinder criminal prosecution of persons for sovereign acts within the former GDR.

It abrogates the basic principle "no penalty where no law exists" and, by invoking an unwritten and undefined "natural law", creates insecurity in legal matters for all citizens of the former GDR who were loyal to their country.

In an intolerable manner, this decision makes clear: In Germany, justice can be turned into its opposite, when political conditions undergo fundamental change.

Those Germans who, for more than six years, have been inundated with investigations and trials by the police and courts of the FRG, for their sovereign activities in the former GDR, are in many cases men and women who actively participated in the resistance against Hitler's fascism.

In the GDR they were: active in politics, in state administration, in the courts and the armed forces.

Their prosecutors belong to the realm of judges and state attorneys who, since the founding of the FRG, have intentionally avoided prosecuting and penalising Nazis and war criminals.

One of them is senior State's Attorney Jantz, prosecutor in the case against members ofthe SED "Politburo". He boasts of having personally dismissed 59 out of 60 trials against fascist court officials.

Although every attempt to equate Nazi Germany with the GDR is self-evidently ludicrous,it is typical of the current situation in Germany that: Up to the present day, prosecution of Nazis end with a dismissal, excused by references to statutes of limitation, "emergency mandates" and other legal constructions.

For former GDR citizens, on the other hand, special laws are created, in order to make their prosecution become possible.

Nazi officials and even SS commanders or their relatives, receive high pensions. Those who were persecuted during the Nazi regime and then held positions in the GDR, on the other hand, are subjected to cuts or even eliminationn of the retirement pay that is due them.

In view of this, the judicial persecution of anti-fascists and of citizens educated in the spirit of anti-fascism in the former GDR, is a mockery of all victims of fascism.

This is part and parcel of the historical revisionism supported by conservative forces m Germany. Its goal is to relativise the Nazi regime and toban its crimes from memory.

All in all, the greatest possible avoidance by the FRG of any serious political orjudicial confrontation with the darkest chapter in German history -- the Third Reich -- takes from them, both historically and morally,the right to pass judgement on the citizens of the other German state, in which, as is internationally known, despite all the defects in its developmenf consequences were drawn from German history.

During a state visit by Nelson Mandela, President of South Africa, he was greeted by applause from all factions of the federal parliament for his commitment to reconciliation and for his having abstained from retaliation or revenge after years of the apartheld regime.

The President of the Parliament, Professor Rita Sossmuth, praised Mandela' s reconciliation agenda as a sign of humane dignity, capable of healing the wounds of the past and opening the way for a good future in his country.

While the German parliament and the federal government heaped praise on a foreign government for its steps toward reconciliation and internal peace, the same federal governmentand a majority of the parliament, gruffly rejected every gesture, even the humblesf toward dosing the gulf between east and west in their own country. Here the prosecution of citizens from the former GDR, who took on the sovereign tasks of their state, continues. Here too, there is to be no rehabilitation for citizens of the old Federal Republic who were robbed of their freedom and civil rights during the Cold War for resisting remilitarisation.

These are contradictions which point to the fact that the Cold War is being continued by many in positions of political responsibility.

German history has been subjected to many changes. All the more do our European neighbours look upon current events in Germany with scepticism and apprehension.

It cannot be in the interest of Europe's future, if in Germany, and particularly by way of the criminal justice system, citizens are subjected to injustice in the name of justice and if an ever wider gulf is built between east and west.

In the name of reason, of justice and of stability in Europe, this must be prevented.

Berlin, November 1996.