The Banality of Justice in a German Courtroom


Berlin. -- The dreaded secret police chief of the now-defunct East Germany slouches inside a bullet-proof plastic cage. He identifies himself to the judges and mumbles, "I feel terrible," and "Somebody swiped my hat," but otherwise says nothing, even in response to simple questions.

"The banality of evil" leaps to the pen of several reporters. The 84-year-old Erich Mielke is too frail to stand more than an hour and a half per week in court, doctors have certified. The popular press accuses him of dissembling. The agony and the evasions come in teaspoonfuls.

Justice, too, can be banal when Germans try to cope with both of their unsavory pasts. No normal legal system can possibly set right the terrible abnormality of Nazi -- or even of less lethal (German) Communist -- crimes. Some East German victims of the Communist system despair of ever seeing their tormentors punished. In the most dramatic moment of the trial so far one of these victimes, Kornelia Voight, takes retribution into her own hands and after the first recess lunges, not at Mr. Mielke, but at his defense lawyer, Juergen Wetzenstein-Ollenschlaeger.

"You ruined my life!" she shouts, and tells anyone who will listen how she was jailed for 10 months for political dissidence at the age of 16 by this very lawyer in his previous job as chief judge of the East Berlin court, nicknamed the "Stasi court."

It was the "Stasi" or state security police that Mr. Mielke headed, and that often told East German judges what sentences to hand down in political cases. Once upon a time his men could wiretap or murder, with impunity, or kill would-be escapers at the Berlin wall, or incarcerate sane dissenters in psychiatric wards. He administered one of the most thorough systems of internal spying ever devised, with a ratio of agents to population far exceeding the Gestapo.

As more and more heart-rending stories have poured out about East German husbands betraying wives to the Stasi, writers informing on fellow writers, secret caches of manuscripts, "IMs" or part-time spies honeycombed in every peace demonstration, environmental club and even in the grass-roots political parties that sprang up in late 1989, a conspiracy theory has spread among East Germans. The Stasi themselves must have staged the entire peaceful revolution of 1989 that brought down the Berlin Wall, this theory runs; they foresaw the coming collapse and acted to assure their own survival by steering that collapse.

Is Mr. Mielke, who once shared such autocratic power with the Communist chief Erich Honecker, in fact senile? The argument rages, as it has ever since he appeared before the East German parliament to answer questions, for the first time in his 30-year reign, four days after the Berlin Wall opened in November 1989. He could not understand then why the non-Communist supernumerary delegates suddenly took offense at being addressed as "comrades." He stumbled and blurted out the immortal phrase, "But I love you all!"

Whatever the real state of Mr. Mielke's mental grip, his lawyers carry on without him. And Mr. Wetzenstein-Ollenschlaeger and his colleagues have a strong case, for in this bizarre trial, what Mr. Mielke stands accused of has nothing whatever to do with the charges of abuse of power and treason that he was arrested for by the reform Communist East German government of December 1989, or with the 40 years of Communist misrule.

Instead, Mr. Mielke is accused of having killed two policeman 60 years ago in the pre-Nazi era. No witnesses to this event are still alive today; street violence was in that period the order of the day; the charge rests entirely on an indictment prepared under the Nazis, and the expiration date for prosecution passed decades ago, unless a string of contrary technicalities can be established. It is a difficult case for the prosecution.

The fact that the prosecution is bringing it to court anyway is widely deemed a response to public pressure from East Germans, who want to see some big fish tried along with the teen-aged border guards who have been convicted for shooting escapers at the Berlin Wall. The frustration is palpable. Mr. Honecker eluded trial by fleeing to Moscow; that left only Mr. Mielke as the number two. Yet the complicated indictment for his actions as Stasi chief would take many more months, or even years, to prepare.

He could not be tried for violating West German laws, since those laws did not apply to East Germany. Tortuous as the process might be, he could only be charged with violating laws of the state he helped to run -- but only in such specific instances as, for example, sanctioning execution of spies when the East German constitution forbade the death sentence. Here his individual responsibility would have to be established in black and white, however.

And if he were to be accused of "crimes against humanity," as the East German legal system picked up this concept from the post-World War II Nuremberg trials of Nazis, this would require an even more complex set of proofs. The prosecutors therefore settled for indicting Mr. Mielke fast on the 60-year-old charge, and bringing more serious charges only later, if he survives.

This farce, as some East Germans call it, certainly does not satisfy Kornelia Voight or others of the 200,000 who were imprisoned over the years of dissidence. Yet it is part of the painful learning process the East Germans are going through in adjusting to messy and unpredictable democracy. It raises new doubts about the vetting procedure that admitted Mr. Wetzenstein-Ollenschlaeger to the bar in united Germany. It is forcing more soul-searching about how an open society can correct the injustices of an entire perverted system without committing new injustices of its own. And it will continue to insist that these uncomfortable questions be faced week after week after week as the Mielke trial drags on.

"There will be deep dissatisfaction no matter how it comes out," comments Richard Schroeder, an [East] German Protestant philosopher with an impeccable record of not having compromised his conscience under the old regime. "But how can you avoid that?"

Elizabeth Pond, a former Christian Science Monitor foreign correspondent, is a John D. and Catherine T. MacArthur Fellow in Europe.

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