In a verdict with broad legal and social implications for Germany, a court convicted two former East German border guards of manslaughter on Monday but acquitted two others of the same charge in the fatal shooting of a youth who tried to flee across the Berlin Wall only months before the Communist regime collapsed.
The surprising and controversial judgment, which followed a 4 1/2-month trial, is the first of its kind to deal with the totalitarian aspects of the East German state.
As such, it is likely to have important ramifications for an avalanche of related cases, including those pending against individuals such as former East German leader Erich Honecker and members of his ruling inner circle.
The verdict is also expected to have a direct bearing on an estimated 300 criminal cases already filed in German courts over other shootings along the heavily fortified frontier that divided the two German states for much of the Cold War era.
More than 200 East Germans are known to have died while trying to flee to the West between August, 1961, when the Berlin Wall was erected, and when it collapsed in November, 1989.
On Monday, Ingo Heinrich, 26, and Andreas Kuehnpast, 27, were convicted of killing their young countryman, Chris Gueffroy, as he and a friend tried to cross the final barrier dividing East from West Berlin.
The court sentenced Heinrich, accused of firing the shots that killed Gueffroy, to 3 1/2 years in prison, a far stiffer punishment than the suspended sentences requested for all four defendants by presiding public prosecutor Herwig Grossmann.
“Whatever they’ve done wrong, they still do not belong in jail,” Grossmann said in his summation earlier this month. But in handing down the court’s verdict, presiding Judge Theodor Seidel said Heinrich “did not just fire bad shots randomly. It was an aimed shot tantamount to an execution.”
Kuehnpast, who also fired at the victim, received a two-year suspended sentence.
The court, made up of three professional and two lay judges, acquitted the other two guards: Mike Schmidt, 27, who ordered the men to begin shooting, and Peter Schmett, also 27, who fired a pistol during the incident but apparently aimed low to wound but not kill the two young men as they fled.
Attorneys for Heinrich and Kuehnpast said they will appeal the convictions.
“Naturally I’m disappointed, but I’m convinced this is not the last word in this case,” said Hubert Dreyling, one of Kuehnpast’s lawyers. “We will go to the Constitutional (supreme) Court if necessary.” Heinrich’s chief lawyer, Henning Spangenberg, dismissed the verdict as “an embarrassment for the court.”
While legal experts varied widely in their assessment of the unexpected verdict, they agreed it was as troubling as it is significant. The trial of the four young border guards occurred at a time when many of the main players of East Germany’s Communist hierarchy remain not only free but living relatively luxurious lives. This has been widely seen as unfair by the general public.
A Berlin judge, not directly involved with the trial, said she agrees with the court’s legal arguments in deciding the case. She described its verdict as “conclusive,” then admitted that the public image of Germany’s judicial system has probably been tarnished by jailing a border guard before acting against those who shaped the system under which he operated.
“It’s really bad and there is no one here who would not have preferred having higher people in the dock,” she said. “The problem is, it is easier to get the one who does the shooting than those who sat behind desks.”
Using terms set down in the treaty of unification between the two German states, the former border guards were tried under western German procedural rules but were charged under old East German law.
The conviction was based on the grounds that the East German law sanctioning the shooting was a violation of the victim’s basic human rights; the law, therefore, should not have been observed by any East German. “Such a law did not earn obedience,” Seidel said. “Obedience should have been rejected.”
Dreyling described the wall shooting as “naturally an injustice,” yet he condemned the verdict against his client as “a forsaking of basic legal principles for political reasons.”
“It raises a real danger to the independence of Germany’s judicial system,” he said. “This judgment was a pure political decision . . . a victor’s justice over the vanquished.”
He said the judgment ran contrary to several western German constitutional provisions, including those declaring an act can be considered a crime only if it was illegal before it was carried out. Setting aside the East German law three years after the crime was committed violates this principle, Dreyling said.
Despite the controversial nature of the verdict, legal experts agreed that the decision would make it easier to pursue Honecker and others responsible for shaping the policy that the guards carried out. But others, mainly those linked with the defense, argued that the verdict could only open a Pandora’s Box that would mean bringing thousands of East Germans to trial.
“The officers, the generals, the political leaders, every member of the Volkskammer (East German Parliament), anyone who had anything to do with that law must now be punished if you follow the court’s logic,” declared Dreyling. “And that’s just not technically possible.”