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Germany: Former East German Head May Benefit From Loophole

  • Roland Eggleston

The trial of a senior official of the former East Germany is now in its final stages before the European Court of Human Rights in the French city of Strasbourg. Egon Krenz, the former head of the East German state, is appealing against a jail sentence for his part in ordering the killing of refugees fleeing to the West from the German Democratic Republic (GDR). RFE/RL's Roland Eggleston reports from Munich that Krenz's appeal could succeed because of a surprising legal loophole.

Munich, 14 November 2000 (RFE/RL) -- Former East German leader Egon Krenz was sentenced to six-and-a-half years imprisonment by a German court for being co-responsible for the "shoot-to-kill" order on the Berlin Wall.

The conviction was confirmed by Germany's federal appeals court, but Krenz and his lawyers are now appealing the claim in Strasbourg on grounds it may violate the European Convention on Human Rights.

Legal experts in Germany believe Krenz has a chance of winning. If he does, it could mean re-opening the trials of some of the other East Germans convicted because of the shootings on the Berlin Wall.

The appeal to the human rights court was lodged by Krenz jointly with former East German Defense Minister Heinz Keller, Deputy Defense Minister Fritz Streletz, and a border guard. Kessler and Streletz are also appealing against jail sentences for giving orders resulting in the death of those fleeing the country.

A German legal expert, Hannes Riester, says the case does not depend on the facts, which are not disputed, but whether Krenz and the others should benefit from an interpretation of the law.

Riester says Krenz does not deny he confirmed the "shoot-to-kill" order. But, Riesler notes, an action taken 50 years ago by the German government in regard to the Human Rights Convention may allow Krenz to argue he should not be convicted of any offense.

The appeal hangs on article seven of the convention. The first paragraph says no one should be found guilty of any criminal offense which was not a criminal offense under national law at the time it was committed.

Krenz's lawyers argue that under East German law it was legal to shoot those trying to flee the country illegally, and therefore Krenz should not be prosecuted.

But the German courts convicted him on the second paragraph of the convention. This says that people can be tried and punished if what they did was considered criminal "according to the general principles of law recognized by civilized nations."

Riester says the position taken by German court was that this allows for the prosecution of Krenz and others in his position.

But Krenz's lawyers discovered a surprising loophole. In the 1950s, Germany decided not to accept this second paragraph, making it the only European state not to do so. Germany's decision at the time was based on a desire not to put on trial large numbers of former Nazis, but only some of the party's leaders and those responsible for murders and other criminal actions.

Germany's reservation on the paragraph is still in force today and it forms the basis of Krenz's appeal. A prominent former judge of the federal appeals court, Wolfgang Schomburg, said if Krenz succeeds, he expects other convicted officials of the East German regime to appeal for a new trial and acquittal.

Riester says such appeals would mean little in practice because Germany has shown leniency in most of the 249 cases of shootings and other violence along the Berlin Wall and other parts of the border between the two Germanies. Only 15 of those charged were sent to jail and most were released early. Another 88 were convicted but were given suspended sentences, and several other cases were withdrawn for ill health or other reasons. Around 50 were acquitted.

Krenz is already benefiting from this leniency. He began his six-and-a-half-year sentence in January, but he has permission to attend all the court sessions in Strasbourg. He is also allowed to make daily visits to his office outside the jail where he works for a firm which has business contacts with Russia.

Two members of the East German Politburo who were sentenced earlier this year to more than three years in jail were released in September, and other senior officials have been freed for ill health or age.

Germany has also shown leniency to ordinary soldiers who fired the killing shots. Acknowledging the fact the soldiers had little choice but to obey orders, courts have issued mostly suspended sentences.

The last man killed on the Berlin Wall was 20-year-old Christopher Gueffroy, who died in February 1989. The border guard who shot him, 24-year-old Ingo Heinrich, was put on probation without any jail sentence attached.

The human rights court decision on Krenz's appeal is expected to be handed down early next year.