Berlin Test Case: Can Border Guards Be Punished for Shootings at Wall? : Germany: A major question centers on possible convictions for actions not criminal at the time.

A major test case opened here Monday to determine whether it is legally possible to punish those responsible for fatally shooting some 200 people who attempted to flee the East German police state.

Although the trial itself focuses on the single case of four young, former East German border guards, accused of killing a 20 year-old youth as he tried to cross the Berlin Wall to the West in February, 1989, the real import of the proceedings lies in a larger principle: Can an East German be convicted for committing an act that was not a crime at the time?

In an opening statement, Rolf Bossi, the chief defense lawyer, argued that the trial should be immediately terminated because such shootings were legal under the former East German law. “The East German citizen had no right to freely exit the country,” he told the court.

His motion for immediate adjournment was rejected, but much of the case is expected to turn on this point.

Berlin government prosecutors are said to possess well-documented evidence that the four defendants fired several rounds at Chris Gueffroy, 20, and his friend Christian Gaudian, as they tried to scale the wall in a remote area of the city. Gueffroy was killed, while Gaudian was seriously wounded. Gaudian later was sentenced to three years in prison for attempting to flee the country but was released after the collapse of the East German Communist regime.

If convicted, the four defendants would face a maximum 15-year prison sentence. They have pleaded not guilty, stating that they were merely following the orders of their superiors.

Although the shooting brought a groundswell of outrage in West Germany at the time, the mood Monday was more of curiosity as the four men, all ages 26 or 27, entered the courtroom with heads bowed, looking lost and uncertain.

Many Germans have expressed frustration that the first to go on trial for such shootings were the soldiers rather than their superiors. Acknowledging this mood, Berlin judicial officials stressed that they were pursuing more responsible individuals, too.

They, along with other legal experts, believe that the outcome of the case against the four border guards is almost certain to influence legal actions under way against some 300 members of the former Communist state, including former party boss Erich Honecker; the country’s onetime prime minister, Willi Stoph; and former Defense Minister Heinz Kessler.

But the fact that only one trial of a major figure in the former East German state has so far run its course reflects the difficulty Germans have had since unification in trying to fulfill the public desire to bring to justice those who held high positions in the Communist regime.

(Harry Tisch, a former trade union leader and the lone East German leader who was convicted, walked free from a Berlin courtroom last spring, despite having been sentenced to 18 months in prison because he had served enough time in pretrial custody.)

German officials hope that the recent failed putsch against Soviet President Mikhail S. Gorbachev has altered the political situation there to a point where they can win Honecker’s return from Moscow to face trial in Berlin. Soviet authorities spirited Honecker out of a military hospital near Berlin last March shortly before Berlin Justice Department officials came to detain him on charges of issuing shoot-to-kill orders in order to stop those trying to flee East Germany.

An estimated 200 persons died during the 28 years that East Germany sealed its Western frontier to all but its elderly and a privileged few of its own citizens. About 80 of those deaths occurred in or around the Berlin Wall; those who know the wall’s history best say the exact number of victims may never be known.

Writing in Monday editions of the Berliner Zeitung, a former East German border guard, Lutz Rathenow, said guards were constantly fed information and rumors that well-armed groups were planning to crash the frontier and would not hesitate to kill any soldier who tried to stop them.

“It was a classic Western situation, either them or us,” he wrote. “In other words, they tried to keep us constantly ready to kill.”