Courts played key role in Germany's reconciliation with past

By Jochen Neumeyer Aug 9, 2011, 2:06 GMT

Berlin/Karlsruhe - His back was to the border fencing and he had already given up his getaway attempt, when a gunshot coming from 40 metres away struck him in the heart.

On February 6, 1989, 20-year-old Chris Gueffroy became the last refugee to be shot dead along the Berlin Wall.

Four former border soldiers faced a Berlin court over that killing for two and a half years. The trial launched the process of bringing those responsible for East Germany's deadly border policies to trial.

The West German judiciary was half-hearted and slow in pursuing Nazi crimes after World War II. In the case of East Germany, it wanted to do better - but there were serious legal obstacles along the way.

In East Germany, soldiers guarding the border did not face penalties for killing refugees - on the contrary. 'You did a great job,' the soldiers who shot at Gueffroy were reportedly told by their company commander.

East German border regulations explicitly allowed the usage of firearms, and West German law could not simply be applied retroactively to the case.

In order to punish the killers of Gueffroy, their act should have been punishable both under West German and the former East German law, Berlin law professor Gerhard Werle explains.

The Federal Court of Justice, however, found a way out of the quandary. Under human rights agreements recognized by East Germany - the judges in Karlsruhe argued - the border regulations should have been interpreted differently.

The killing of unarmed refugees was 'such a horrific act without any reasonable justification' that even 'indoctrinated individuals' should have been aware of 'the elementary prohibition against killing,' the court said. Germany's Federal Constitutional Court and the European Court of Human Rights endorsed its stance.

The soldier who killed Gueffroy received only a suspended sentence.

'The defendant was at the bottom of the military hierarchy. In a certain sense, he is also a victim of the border regime,' the court wrote.

In general, the higher-placed the accused from the East German power structure have been, the harsher the punishment.

Former East German defence minister Heinz Kessler was handed the toughest penalty - seven and a half years in prison. Former border troops chief Klaus-Dieter Baumgarten got six years, while the last head of state and party leader Egon Krenz was sentenced to six and a half years.

The trial of long-time head of state Erich Honecker, however, could not be completed. After a legal back-and-forth, Berlin's constitutional court ordered the closure of the proceedings in January 1993, because Honecker was suffering from cancer. He went into exile with his wife to Chile, where he died in 1994 at age 81.

The last trial against border guards ended exactly 15 years after the fall of the Berlin Wall on November 9, 2004. The Berlin district court found four former East German officers guilty of accessory to murder.

Altogether, a total of 385 verdicts were handed out for 'violent acts on the border.' Among them, 110 ended in acquittal, while the offender was punished in 275 cases.

'Given the complexity of the cases and the high number of lawsuits,' that result is 'substantial,' says Werle, who has investigated the legal pursuit of East Germany's crimes.

The rulings had left no doubt that 'formal legality is not protected from punishment in serious human rights violations,' he said.

The German courts had also ruled in a moderate and balanced fashion, for which reason they could not be regarded as 'victors' courts,' the professor said.