GERMANY

Human Rights Developments

The fall of the Berlin Wall on November 9, 1989 began an astonishingly rapid process of unification for the Federal Republic of Germany (BRD) and the German Democratic Republic (DDR). Initially, many celebrated the remarkable changes that were under way. It was only a short time, however, before East and West Germans began to realize how fundamentally different their experiences had been during the post-World War II period, and to sense that many difficult issues, from right-wing violence to economic collapse, would confront the newly united Germany.

As the euphoria died down, Germans found themselves confronted once again with the devastation caused by dictatorship. For the second time in this century, they were forced to ask fundamental questions about their past and were confronted with the difficult question of how to assess individual responsibility and guilt for the practices of a repressive regime.

Although the burden of dealing with the communist past falls primarily on East Germans, the role played by West Germany ensures that this process will be essentially different than in other post-communist countries, where there are concerns about political instability and about the lack of resources needed to rebuild the economy and state infrastructure.

At least in part because it possesses the necessary resources and political will, Germany has moved more rapidly to address the abuses committed during its communist past than have its neighbors in Eastern Europe. Germany quickly opened the secret police, or "Stasi," files, passing comprehensive legislation to regulate access to the files, to protect Stasi victims and to give them access to their own files. Germany also expeditiously moved to begin documenting and prosecuting past abuses.

Germany is in the process of reviewing the "political integrity" of its civil servants and "cleansing" the civil service of all those who are judged to have been politically compromised. Temporary regulations enacted pursuant to the Unification Treaty provide that former East German civil servants can be fired or not rehired in the united German civil service if they worked for the former secret police, violated basic human rights or legal norms, or are deemed to be unsuited for employment. Each state has responsibility for devising procedures for implementing this review process.

Although the procedures have varied from state to state, all civil servants, including police, judges, prosecutors, teachers, and train and postal workers, have been required to complete questionnaires regarding their professional and political backgrounds. Many employees have been asked a series of questions regarding their party membership (past and present), the political and employment history of their family members, their contribution to the fall of the DDR, their religious affiliation, and their views on the fall of the communist system. Local commissions evaluate the questionnaires and, in most cases, hold interviews with employees whose dismissal has been recommended.

The review process raises a number of due process concerns. The questionnaires, as well as questions asked during the hearings, exceed what isappropriate inquiry by a government employer and violate the individual's protected right to hold political opinions without government interference and to associate freely with others. Furthermore, while employees called before the review commission are notified that they face dismissal, they often are not told the reason why. The review commissions frequently appear to assume the employee's guilt and to place the burden of proof on the employee to prove otherwise.

Many employees have been dismissed without ever having been accused of any specific misconduct. Instead, most have been found unsuitable for continued employment in the civil service simply because they held political party or government positions under the previous system. No serious effort has been made to provide evidence that an individual carried out his or her duties in a manner that was repressive, unethical or criminal in nature. Instead, the assumption has been made that any employee who held his position over an extended period of time must have satisfied Party dictates and these dictates were inherently abusive.

Germany has a long history of requiring political loyalty from its civil servants. In West Germany, especially during the 1970s and 1980s, several hundred thousand civil servants or applicants for the civil service were reviewed for political loyalty. Individuals were fired or not hired because of their membership in political parties or organizations that were considered dangerous to the free and democratic order. This was true even though the employee was accused of nothing more than legal political activity.

Gradually, more liberal states did away with this practice. However, there are still an estimated five cases that have not been resolved, and individuals who lost years of income in the civil service have not received compensation. The Federal Constitutional Court upheld this practice in 1975.

After several years of investigation, the International Labor Organization issued a report criticizing West Germany for its loyalty requirements for the civil service. A press release from the ilo dated February 23, 1987 stated:

Suitability for employment should be the crucial issue....The principle of proportionality should be observed....[T]he question of whether an applicant for the civil service or a civil servant is suitable for admission to employment or continued employment should be judged in every individual case with reference to the functions of the employment in question and the consequences of the actual behavior of the person affect.

The German government appears committed to investigate, document and prosecute past abuses under the former communist regime. Special prosecutorial units have been established to investigate DDR government abuses. For example, a working group within the Berlin Ministry of Justice, with 58 prosecutors, is working on over 900 registered cases of abuses. This special prosecutorial unit was responsible for the widely publicized trial of two border guards, Ingo Heinrich and Andreas Kuhnpast, who were convicted on January 20, 1992 of manslaughter in the shooting death of Chris Gueffroy as he attempted to cross the Berlin wall in 1989. The presiding judge rejected the defense that the defendants were only following orders. While acknowledging that the defendants were "at the end of a long chain of responsibility," the judge stated that they had violated "a basic human right" by shooting at an unarmed civilian trying to leave his country.

The former communist leader Erich Honecker, who is charged with manslaughter and corruption in connection with the border guard shootings, returned to Germany in July from his refuge in the Chilean Embassy in Moscow and is expected to be brought to trial in the near future. Many other top government and party officials are under investigation or have already been indicted for past abuses.

The German government has also moved to rehabilitate victims of past abuses. The Unification Treaty states that parties to the treaty intend "that a legal basis be created as soon as possible so that all people who were victims of politically motivated criminal prosecutions or other illegal or unconstitutional court decisions can be rehabilitated." The German parliament also passed a law requiring speedy review of past criminal convictions, and rehabilitation and compensation of those wrongfully convicted and imprisoned.

A commission was appointed by the federal parliament in March to conducta comprehensive investigation of the 40-year communist dictatorship in the DDR. The commission will not have prosecutorial authority, but will take testimony from victims and review documents related to communist rule. Its report, due in 1994, is expected to be a thorough examination of communist rule, including, among other things, the tools used to solicit informers, monitor dissidents and indoctrinate the public. West German policies that may have influenced the speed of democratization in East Germany will also be examined.

Since unification, Germany has been confronted by a dramatic increase in right-wing violence especially against foreigners. The recent wave of violence has shocked the world and damaged Germany's international reputation. Rioting skinheads throwing Molotov cocktails at refugee shelters, onlookers applauding and cheering, slogans such as "foreigners out" and "Germany for Germans," physical injury, fear and humiliation have become daily experiences for foreigners in unified Germany.

From January to mid-November 1992, there were over 1,800 crimes motivated by anti-foreigner sentiment in Germany. Sixteen deaths resulting from right-wing violence were reported in this same period, as compared to three deaths at the hands of right-wing extremists in 1991.

Although violence against foreigners occurs in both East and West Germany, in proportion to the population, there are many more attacks on foreigners in the East, and the probability of becoming the victim of racially motivated violence is far greater there. Similarly, the response of the police and local officials appears to be qualitatively different in the eastern states, with significant evidence of police unwillingness or inability to respond promptly and effectively to calls for assistance and protection by foreigners.

The official response during violence in Rostock in August 1992 is perhaps the most vivid example of the failure of the police to provide protection for foreigners. Following two days of violence by right-wing skinheads in front of an asylum shelter, 200 asylum seekers, mainly Romanian Gypsies, had to be evacuated on August 24. However, approximately 150 Vietnamese guest workers who lived in a building next to the shelter were not moved.

That evening the police protecting the building withdrew to a nearby hill, giving skinheads gathered nearby the opportunity to throw molotov cocktails and storm the building. Over the next two hours, the Vietnamese, as well some German journalists were trapped in the burning building while the police watched from a distance. The police moved in only after the foreigners had escaped to safety.

Helsinki Watch documented numerous cases in which the police stood by and watched while foreigners were attacked. In other cases, the police have failed to investigate attacks on foreigners, thereby making prosecution very difficult.

Those right-wing skinheads who have been brought to trial and convicted of serious crimes such as assault causing bodily injury have received very short prison terms or suspended sentences with probation. The courts have appeared remarkably understanding of right-wing skinheads and the economic and social reasons that may motivate them, while disregarding the racist sentiments behind many of the crimes.

Over the past two years, as the violence against foreigners has grown, the federal government's primary response has been to call for an amendment to the German constitution guaranteeing the right to political asylum. Federal and state governments have coupled their condemnations of such violence with calls for restricting the number of asylum seekers in Germany.

In September, less than a month after Romanian Gypsies were attacked by neo-Nazis in Rostock, the German government announced that it had concluded a treaty with Romania that would provide for the deportation of Romanian citizens whose asylum applications had been denied. This step was viewed by many German experts and the press as directed against the large number of Gypsies among Romanian asylum seekers. The treaty was portrayed by the German government as, among other things, a new effort to combat right-wing violence in Germany.

In October, the government proposed to deport asylum seekers without a court hearing when the country of origin is deemed a "safe country." The United Nations High Commissioner on Refugees protested against this proposal as potentially violative of Germany's international obligations not to return refugees to face persecution.

In November, after a Turkish woman and two Turkish girls were killed when neo-Nazis firebombed their hostel in the West German town of Mölln, the Germangovernment responded by banning the National Front, a small neo-Nazi group believed to have organized attacks on foreigners. According to The New York Times, the Republican Party, a far-right party that won seats in the local parliaments of several states in the spring of 1992, was prevented from holding a convention because it would have threatened state security and public order.

The Right to Monitor

Helsinki Watch received no information regarding human rights observers that were prevented from conducting their investigations and reporting on their findings.

U.S. Policy

The U.S. government has had little public comment on the rise in right-wing violence in united Germany. When the most recent wave of violent attacks against foreigners began, the U.S. government remained publicly silent. However, the State Department has indicated that it expressed its concern privately to the German government. On September 9, in response to a question regarding the resurgence of "fascism" in Germany, a spokesperson for the State Department stated:

We have noted the rise of right-wing groups [in Germany] in recent years and the increasing incidence of right-wing violence, and have raised our apprehensions about this phenomenon repeatedly in meetings with German officials.

However, the spokesperson continued:

It is clear from these discussions that the German government is also deeply concerned and is taking such measures as it can to deal with the problem.... Leaders of all mainstream parties have strongly condemned right-wing violence against foreigners, and police have been working to prevent such incidents.... We applaud these efforts, and will continue to encourage German authorities to combat this problem with determination.

The State Department's claim that the police were working to prevent right-wing violence came only two weeks after the violence in Rostock, where the police had withdrawn from the scene of the attack by right-wing skinheads, leaving 150 Vietnamese trapped in a burning building.

The Work of Helsinki Watch

Helsinki Watch's work in Germany centered on two principle issues: the decommunization process and the violent attacks against foreigners. In April, Helsinki Watch sent a mission to Germany to investigate the decommunization process in the former DDR, focusing especially on the process of reviewing the political and professional integrity of civil servants. A report issued in December 1992 concluded, among other things, that:

[T]he national government, as well as the state governments, has authorized a review process that goes well beyond what can be considered proper inquiry. Although the government has acknowledged the need for procedural protections, in practice many individuals have been denied these procedural safeguards....

Helsinki Watch recognizes that a carefully documented investigation that guarantees candidates all procedural safeguards necessarily results in long delays. Many Germans, especially those who were active in the democratization effort in the DDR, have pointed out that these delays slow down the democracy-building process in East German institutions and they are understandably impatient for this process to be completed. However, one of the distinguishing trademarks that separates a democracy from a totalitarian state is the procedural safeguards that protect the individual from arbitrary state action. Conducting evaluations in an abusive manner does little to further democracy and the rule of law in East Germany.

Helsinki Watch closely monitored the treatment of foreigners in Germany during 1992. In May and June, Helsinki Watch sent a fact-finding mission to Germany to investigate the increase in violent attacks against foreigners. A Helsinki Watch representative visited numerous asylum shelters, and conducted interviews with many foreigners who had been victims of right-wing violence. Helsinki Watch also spoke to representatives of refugee organizations and those fighting racism in Germany, as well as with police and government officials.

On August 27, after the above-described shocking events in Rostock, Helsinki Watch sent a letter to Federal Minister of Interior Rudolf Seiters calling on the federal and state governments to

investigate thoroughly the conduct of the police whose duty it was to protect the asylum home in Rostock. The results of this investigation should be made public and, if the charges are substantiated, proper steps should be taken up to and including criminal prosecution.

Helsinki Watch condemned the German government's announcement that it had entered into a treaty with Romania that would facilitate the deportation of Romanian asylum seekers whose applications had been rejected, and particularly criticized the government's portrayal of the treaty as a measure to combat violence against foreigners in Germany. Helsinki Watch sent a letter on September 24 to Chancellor Helmut Kohl stating:

Helsinki Watch strongly protests the German government's attempt to deal with the severe problems of xenophobia and racist violence confronting Germany by seeking scapegoats among the victims. Gypsies in Germany have a long history of persecution, and they continue to face persecution and hatred. As such, they are an easy, and defenseless target.

On October 25, Helsinki Watch issued a report entitled Foreigners Out: Xenophobia and Anti-Foreigner Violence in Germany. The report documents cases of right-wing violence against foreigners and the failure of the police and local officials to intervene to protect foreigners or to investigate cases of violence against foreigners. It also criticizes local authorities for failing to investigate the weak police response in these cases and to take disciplinary measures when there is evidence of misconduct. In addition, the report criticizes the federal government's response to the violence against foreigners, charging that the government ignored early warnings that asylum seekers should not be transferred to East Germany until local authorities could be properly trained and equipped to protect them.

Helsinki Watch concluded that the German government has failed to give "clear and unwavering support for the protection of foreigners," sending ambiguous signals to local police and authorities, as well as to the population as a whole. The report states:

Although the federal and state governments have condemned violence against foreigners, this condemnation occurs in the context of calls for restricting the number of asylum seekers in Germany. By linking these two issues, the government fails to acknowledge the severity of the crimes being committed against foreigners by German citizens. Instead it subtly shifts the focus and the blame to the foreigners themselves.