German Scales of Justice Seem to Tilt to Right

Already the object of widespread criticism, Germany’s beleaguered judiciary moves into the international spotlight again next week with verdicts due Monday in two controversial cases.

In the northern town of Schleswig, a state court is scheduled to decide the fate of two neo-Nazi youths accused of a racially motivated arson attack last year that killed three Turkish nationals.

The judgment comes in the wake of protests from human rights activists--domestically and abroad--at a string of unusually mild sentences handed out to other German youths convicted of racist attacks. Those sentences have helped feed international concern that those in positions of responsibility in Germany are underestimating the radical right threat.

Meanwhile, a Duesseldorf court is expected to rule Monday on the strange case involving one of the Cold War’s most famous spymasters, Markus Wolf, who faces the bizarre charge of betraying West Germany--the country he spied against .

The Wolf case reflects the German judiciary’s confused, erratic pursuit of former key players in the repressive former East German state using tactics that have let many of the most senior figures in the East German regime go free, convicted a few others on questionable legal grounds and seemingly left a handful of lowly border guards as its principal target.

Experts here say that deeply rooted reasons explain these actions, noting that in the present era of mass democracy and powerful media influence--in which judges and jurors nearly everywhere struggle to work amid growing public pressure--Germany’s judiciary has been left particularly exposed.

Traditionally a servant rather than an equal to the country’s lawmakers, the judicial system has proven more susceptible to the prevailing public and political mood--and Germany, despite its history, tends still to see a greater threat from the political left than the right.

Authorities here certainly have done little to foster confidence in the legal system with their handling of major prosecutions of East German Communists such as Wolf.

For years Wolf ran the East German version of the Soviet KGB. He headed what was arguably the most successful espionage network of the Cold War era, infiltrating agents in the most sensitive places, including the West German chancellor’s office.

But since last May, the 70-year-old former general has sat in a Duesseldorf court facing a charge of betraying his enemy. Even more curious, Wolf will be judged well before the Federal Constitutional Court in Karlsruhe rules on the legality of prosecuting former East German spies at all.

Spending even a few hours in the court listening to the judges probe areas largely unrelated to the formal charges leaves the uneasy impression that Wolf’s trial has little to do with justice.

“If Karlsruhe decides the trial is unconstitutional, it’s going to be very embarrassing,” admitted federal Justice Ministry spokesman Matthias Weckerling.

Other legal attempts to deal with events in the now-defunct Communist East have raised equally disturbing questions.

Why, for example, was Erich Mielke--a man described by a Berlin court as “one of the most feared dictators and police ministers in the book of history”--put on trial for none of his actions as the former East German minister for state security, the infamous agency known as Stasi?

Instead, Mielke, 84, was confronted with a murder charge dating back 62 years; after a surreal, 20-month trial, he was convicted and sentenced last month to six years’ imprisonment largely on the basis of Nazi-era testimony.

Why have leading figures in the East German hierarchy avoided prosecution while former soldiers involved in shootings along the former East-West frontier have been paraded through the courts?

Last month, a Karlsruhe court increased the sentence of one former East German border guard from six to 10 years’ imprisonment for shooting someone trying to escape to the West.

Meanwhile, Erich Honecker--the former East German leader who supervised the construction of the Berlin Wall and presided over the system that shot those who tried to flee--relaxed with his family in Chile after being released from German custody on health grounds.

German courts also have triggered alarm bells among human rights activists--especially abroad--for their relatively mild handling of self-styled neo-Nazi youths involved in street violence, mainly against foreigners.

Consider:

* Five rightist skinheads who beat a 23-year-old German to death and left eight of his friends seriously injured in the eastern city of Magdeburg in 1992 received suspended sentences last month ranging from 10 to 20 months. Many of the circumstances of the attack remained unclear, the presiding judge explained.

* Two of three neo-Nazis found guilty last month in a Dresden court of killing a 28-year-old Mozambican by throwing him out of a moving tram Easter Sunday, 1991, received 18-month suspended sentences; the third was given a two-year jail term.

* Two right-wing extremist youths firebombed an asylum-seekers’ hostel in the western town of Huenxe in October, 1991. The incident received national attention because an 8-year-old Lebanese girl was critically burned. Despite the public scrutiny, the youths charged in the case were given five and three years in prison; prosecutors gave up attempts to appeal the sentences. “There was no chance for success,” said chief prosecutor Martin Hein.

* Two neo-Nazi youths who confessed to setting the September, 1992, fire that destroyed one of the main buildings of the Sachsenhausen concentration camp memorial north of Berlin went free last month after they suddenly withdrew their confessions. “The prosecution went to sleep,” charged a judge familiar with the case. “Those young men never should have gone free.”

Many argue there is a connection between the attempts to prosecute former East German Communists and the mild sentences given neo-Nazis. They claim the two phenomena together confirm the unsettling message that German society tends to react more swiftly and aggressively to threats from the political left.

What is more, legal and political commentators argue, this is nothing new. They compare the present response to right-wing extremism with the reaction to political terrorism mounted from the left in the 1970s. The West German government declared the notorious Red Army Faction a threat to the nation’s stability, spent $8 million on a special high-security courtroom in Stuttgart and then applauded as judges condemned many of those arrested to life imprisonment.

A decade later, the courts exerted the full force of the law against those who blocked roads to protest deployment of new U.S. nuclear missiles in Germany.

“Such decisions make me doubt whether jurists really want to judge crimes from the left and right on the basis of the same criteria,” Monika Frommel, director of the Institute of Criminology in Kiel, said in an interview with the news weekly Der Spiegel.

Her comment came after a court in the eastern town of Eberswalde sentenced two right-wing youths to two- and four-year jail terms for killing an Angolan national employed at a local factory.

Judicial experts here note that the youth of many of the neo-Nazi suspects helps, at least in part, to explain the mild sentences, often issued by juvenile-court judges who are concerned that a long prison term can mean permanent criminalization for a first offender.

But Wilhelm Heitmeier, a Bielefeld University social scientist widely respected for his research on right-wing extremism, argued in an interview that Germany’s judicial imbalance is deeply rooted.

“Extremism from the left is directed against power, the state and its institutions,” he said. “Extremism from the right is directed against powerless individuals. In this country, the view has always been that it is more important to protect institutions than people.”

This view persists, even though Germany’s Nazi nightmare remains within the living memory of many of this country’s 80 million people.

“There’s definitely an attempt (by judges) not to brutalize (offenders), but it’s apparently not really dawned that this (right-wing extremism) is really serious,” said Bernd Pastewski, a jurist who now teaches law at Humboldt University in Berlin.

That German judges may be influenced by public opinion, analysts say, is not startling.

But there are circumstances that make Germany’s judiciary especially susceptible to the prevailing political mood. German legal experts note that, unlike the United States, Germany’s judiciary sits a degree beneath the legislative and executive branches of government in its influence. Although free of any direct meddling, it is exposed to the winds of political and public opinion.

Gerhard Mauz, veteran legal affairs correspondent of Der Spiegel, called the judiciary “the knife and fork” of the country’s political leadership. “Germany’s judiciary has developed as the servant of the state, not a third, equal power as it is in America,” he said.

The judiciary’s role in the Third Reich--in which the vast majority of judges vigorously enforced the most abhorrent of Adolf Hitler’s racism laws and then went largely unpunished afterward--remains what Mauz calls a “bitter fact” that clouds the present system.

As a consequence, many experts claim that the frustration among foreign observers at the mild sentences given to neo-Nazis is wrongly focused on the courts.

In Germany especially, they argue, the change must begin with the political leadership.

But with no less than 19 elections planned in Germany next year and the national mood shifting perceptibly to the right, few believe that the leaders of major parties will be willing to risk alienating right-wing voters by implementing tough measures to protect foreigners--a constituency that is neither especially liked nor has a vote of its own.