The German Border Guard Cases and International Human Rights

2 The Border Guard Cases

In the border guard cases, East German soldiers who had killed fugitives or other trespassers on the GDR or East Berlin border were tried on charges of homicide. Those found guilty were sentenced to prison terms.⁴ Government officials, such as members of the GDR National Defence Council, held responsible as the guards' superiors, were similarly brought to trial.⁵ On appeal from the judgments of the trial courts, the Bundesgerichtshof (the federal court for civil and criminal matters having jurisdiction as a court of last instance for the entire Germany) gave its approval to the trial courts' opinion, holding that the acts the defendants were accused of were crimes which could not be justified by reference to the laws of the GDR.

Since the cases were rather similar it may suffice to report the facts of only two of them in order to illustrate the situations faced by the Court.

In the first of the border guard cases to come before the Bundesgerichtshof⁶ the defendants, two young soldiers of the GDR Border Guard Troops, shot at a 20 year-old East German trying to escape over the wall to West Berlin during the night of 1 December 1984. When the fugitive climbed the wall on a ladder he had brought with him, one of the defendants shouted at him to freeze and, after firing some warning shots in the air, both of the soldiers fired at him with automatic rifles in order to stop the escape, even at the cost of the fugitive's life. The man, hit by bullets in his back and knee, fell from the ladder. After some time he was dragged to a watchtower by two other soldiers where, despite his repeated requests for medical treatment, he received no attention. Since the incident had to be kept secret no civilian or other person on emergency duty was allowed to be called. Only after two hours was the fugitive taken to a police hospital, where he died shortly afterwards.

Most of the cases followed the same pattern: fugitives trying to climb over the border installations or to swim across the border at points where it ran through waters separating East from West Berlin. One case, however, seemed to be slightly different. There the Bundesgerichtshof⁷ had to review a case in which the fatal shots were not directed at a fugitive from the GDR, but at two West Berlin sunbathers - a 42 year-old man and his 21 year-old daughter, both wearing swimming suits - who were sitting in a small inflatable motor boat coming from West Berlin waters at noon on 15 June 1965. Apparently they did not realize that the border fence was situated well behind the line where East Berlin territory began. When they had inadvertently intruded into East Berlin waters to a distance of about 10 metres, the defendant fired some warning shots from his watchtower. Although the father and daughter turned the boat around right away and headed for the West Berlin side, the defendant fired at them, immediately before the boat crossed the border line again, hitting each of them with several shots. The boat floated to the West Berlin side. Both persons had been hit in the head; the man died on the spot, his daughter became irreversibly disabled. A GDR military investigation committee finally reported that the defendant had acted in accordance with his orders and deserved commendation.

All the cases showed some characteristics in common: first, the border guards had been instructed daily that under no circumstances were fugitives to be allowed to escape across the border line - in the last resort they had to be `annihilated' (`vernichtet'); second, the incidents had to be kept secret as far as possible, even at the cost of the fugitives' lives; third, border guards, successful in keeping fugitives from leaving GDR territory, merited commendation.

4 Between 3 October 1990 and 6 February 1997 a total of 78 persons were sentenced and 45 were acquitted (reported by Die Welt, 7 February 1997).

5 Judgment of 26 July 1994, BGHSt 40, 218.

6 Judgment of 3 November 1992, BGHSt 39, 1.

7 Judgment of 20 March 1995, NJW 1995, 2732 (5 StR 378/94).

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