Settling Accounts with a Secret Police: The German Law on the Stasi Records

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EUROPE-ASIA TUDIES,Vol. 50, No. 2, 1998, 305-330

Settling Accounts with a Secret Police:The German Law on the Stasi Records

JOHN MILLER

SometimesI wondered whether we couldn't have destroyedthem all sight unseen.

(InteriorMinisterWolfgang Schauble on the Stasi records)

We contributeour bitter and proud experienceat the threshold between accommodationand resistance.(Prime Minister Lothar de Maiziere, 19 April 1990)'

I was angry with myfriend:I told my wrath,my wrath did end.

I was angry with myfoe:I told it not, my wrath did grow.

(WilliamBlake, 'A Poison Tree')

WHEN TYRANNIESAREREPLACED YDEMOCRACIESOWADAYS, hesedemocracies nherit

a baffling problem in the shape of the tyranny's state papers. Should these papers be

keptand used in the

publicinterest-for the

prosecutionof the old

regime'scrimes,

the rehabilitation of its victims or the purging of its public service? Despite frequent

public demand for such settlement of accounts with old regimes, twentieth century

responses have been by no means clear-cut.

Democratic governments may prefer to 'draw a line' under disturbing past historyand to resist the settling of accounts-which can so easily become the settling of

scores. This was a typical reaction when fascist regimes were overthrown: post-war

Italy, post-Vichy France, Spain after Franco-even the United Kingdom in respect of

the liberated Channel Islands. Federal Germany was notoriously late and feeble in

dealing with many former Nazis in public life (although lack of access to the relevant

archives played a part here). After a few trials the restored Greek democracy burnt

the records of the Junta and Civil War.Post-communist governments in Europe-Russia and the Czech Republic, for

example-have tended towards a different approach: the use of their executive powerto purge or punish the personnel of the old regime. Not surprisingly, this has led to

charges of executive secrecy, partiality and arbitrariness; 'settling accounts with the

past' may come to look (especially to the opposition of the day) like an opportunistic

grab for political advantage. In yet a third approach, post-apartheid South Africa has

set up a Truth and Reconciliation Commission, empowered to offer amnesty to peoplewho confess to political crimes within two years, after which those who have not

come forward may be prosecuted. It is too early to pass judgement on this project, but

0966-8136/98/020305-26 ? 1998University

ofGlasgow

http://www.jstor.org/page/info/about/policies/terms.jsp



JOHN MILLER

primafacie it looks like an attemptto have popularparticipation orrect the defects

of bothbureaucratic ndlegal procedures.Manydemocraticgovernmentsof the kind

we are consideringwould be nervous about the effects of such participationon an

alreadydamagedsocial cohesion.

A fourthoption is 'corrective ustice'-the settling of accountsby the systematic,

public and impartialmeans of law. Despite an apparentattractiveness his is a course

that has been followed surprisingly arely.Manysocieties, afterexperiencing yranny,arein no state to agreeon adoptingcorrective ustice, nor on the personnelthey trust

to carryit out. It is hardfor correctivejustice to be effective withoutbreachingits

own legal principles.The scale of judicial work involved may be daunting,without

its social outcomes being at all clear. And it diverts resources from other measures

of reconstruction.2 he focus of this articleis thus on a ratherunusual case: a recent

attemptat correctivejustice, and, within that, an attemptto use a dictatorship'srecordsto help society settle accounts with thatdictatorship. ts aimis, first,a detailed

analysis of the GermanLaw on the Documentsof the State SecurityService of theFormer German Democratic Republic.3This leads to some consideration of the

legislation's impact on society in the formerGDR, and thence to some thoughtson

the place of law and legal methods in post-communist ransitions n general.The communistregimeof the GDR collapsedin late 1989 under a combinationof

popular pressure,withdrawalof Soviet supportand its own sclerosis, and the civil

rightsactivists who seized the initiative then arerightlycreditedwith Germany'sfirst

bloodless democratic revolution. But-great as their achievement was-the 1989

revolutionarieswere not representativeof a dispiritedGDR society. The first free

elections of March 1990 rejected them, and the democraticgovernmentthat was

formedin April faced a massive populationexodus. It soon found itself appealing,

with increasingnervousnessand ever fewer conditions,for accession to the FederalGerman ystem.Germanunificationwas thus nojoint ventureby equal partners.From

this flow two unusualfeaturesof the 'post-communist ransition' n Germany.First andmost important,an efficient administrative ndlegal systemwas available

fromthe moment of unification.Whereaselsewherepost-communistnstitutionshave

had to be built up from scratch,in societies often inexperienced n law, democracyand the market, in East Germany,with only minor exceptions, Federal law was

simply extended to the 'new Lander', together with thousands of qualified West

Germanpersonnel.Second was the transition'sunusual ocus. Energiesthatelsewhere

were expendedon institutionbuildingcould here be directed towards an accountingwith the past, a task (it was widely felt) that had been mishandled after the Third

Reich.

Despite the East Germanregime's illegitimacy,almost everyonewith administrat-

ive andmanagerial kills had been associatedwith it. TherulingSocialistUnity Party

(SED) had includedevery fifth employee andevery sixth adult in its ranks-and the

proportionhad been far higher amongwhite-collaroccupations.Many of the revolu-

tionaries of 1989 were ex-communists,some still in searchof a purified'socialism'.

The Eastern Christian Democrats who led the 1990 governmenthad a record of

cooperationwith, indeed subservienceto, the SED. Thus, whilst the public mood

had long been bitterlyhostile to the regime in general, and to some of its specific

policies (like the Berlin Wall, the shootings along it and pervasive political police

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THE GERMANSTASI RECORDS

surveillance),it would be wrong to infer a personal hostility towards communists

from this. On the West German side, memories of the Nurembergtrials and of

denazification, he ban on retroactivepunishment n the Basic Law (Article 103 (2)),indeed the whole elaboratestructureof the Rechtsstaatof which FederalGermany s

so proud-all set limits on what could be done with the old regime.It was extremelydifficult to use the methods of law againstcommunists as a class or againstactions

andpolicies which had been 'legal' in the GDR. For both these reasons the pressurein the new Ldnder was less for revenge than for personalclarification(Aufkliirung)of the hiddenforces that hadblightedpeople's lives for so long. People wanted above

all simply to find out, and therebyto regain some sense of personalcontrol of their

future and some measure of trust in public life.4

Against this backgroundthe basic legal-constitutionaldecisions concerning the

former GDR regime, its leadershipand supporterswere as follows:5

(i)To initiate

prosecutionof a limitednumberof

peoplefor

orderingor

committingstate-sponsored rimes.They were to be triedunderparagraphs ommon to the

penal codes of the Federal Republic and the GDR; where interpretationor

penaltiesdiffered,the milderof the two codes was to prevail. In October 1996

the Federal ConstitutionalCourtrejectedclaims that convictions in such cases

amounted to retroactive ustice.6

(ii) To quasha wide rangeof politicalcourt sentences and administrative cts of the

GDR, and to rehabilitateand compensatetheir victims.7

(iii) Beyond the small group prosecuted,to encourage the exclusion from publicservice of figuresfromthe old regimeon threegrounds:8ack of qualifications r

personalunsuitability; ffences against nternationally ecognisedhumanor legal

rights, where these offences made employmentunreasonable o the employer;and-subject to the same proviso-acting in any form for the GDR Ministryof

State Security.Such disqualificationsare not considered retroactive ustice, as

the Basic Law's ban applies only to punishmentsunder the Penal Code; but

employers'decisions arejusticiablebefore the LabourCourts(Arbeitsgerichte).

(iv) Otherwise o ignoreSED membershipand service in the GDR statebureaucracy;of themselves these were not to be groundsfor discrimination.9

For all these purposesvital evidence lay in the massive archivesof the Ministryof

StateSecurity(abbreviatedo 'Stasi'),and these recordswere what East Germanshad

most in mind when they pressed for the opportunityof personalclarification.For

many people, therefore,access to the Stasi archiveswas the urgentprerequisite o areckoningwith the GDRpast.But for others the decision to open the recordswas not

so clear cut.

The Stasi records and their problem

The Ministryof StateSecurityhad a full-time staff of some 90 000, andwas assisted

by a furthergroup of 'unofficial collaborators'estimatedat 170 000-making Stasi

personnel n total about a quarterof a million or 2% of the adultpopulation.Full-time

staff and unofficials together accumulatedrecords said to cover between 180 and

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JOHNMILLER

200 km of shelvingand to includereportson six million persons (compare his figurewith the 16 million populationand 12.5 million adults of the GDR!).'1Most of the

materialwas in hardcopy-paper, film, microfiche,tapes; computerised ndexes had

been installed,but little primarymaterialseems to have been storedelectronically.In

1995, after five years of processing, some 20% of the material had yet to be

scrutinisedby Federalarchivists,'1and access underthe presentLaw is confined to

those records which have been processed.The records are not complete.Whilst most provincialStasi centres were occupied

by citizens in earlyDecember1989, its Berlinheadquarterswere not taken over until

mid-January1990, and between then and June 1990 unsupervised (sometimes

unidentified)Stasi personnelcontinuedto be employed in the winding down of its

operations.In this period some records were destroyed,sanitised or tamperedwith;others were removed and often remainin privatehands or are offered for sale; still

others came by obscure means into the possession of Federal German security

services. The recordsmost affectedby these vicissitudes would seem to be those onpersonsin a position to gain access to them in early 1990, those on public figuresof

the late 1980s, and those on the Stasi's foreign (includingWest German)operations.In February 1990 the Modrow regime allowed the destruction of the electronic

indexes, making subsequentsearches much more difficult.'2Nevertheless-a pointthatwas laterto assumeimportance-those now in chargeof the recordsare confident

of their ability to reconstructand interpret hem and to detect falsifications.13

What was theproblemposed by these records?The FederalMinisterof the Interior

says he toyed with the idea of destroyingthe lot, sight unseen-and his was not an

isolated voice. Much of the informationwas deeply painful andpotentiallythreaten-

ing to citizens; much of it had been collected illegally and could never be legally

used; some of it mightbe false-tampered with, the productof malice, or merely of'planfulfilment';why not put the whole damnosahereditasbeyond temptation,and

guarantee hat its secrets stayed secret? But destructionor sealing off would involve

serious difficulties.Therewas so muchhere of vital importance o legal cases, to the

compensationof victims, to the constructionof competentadministrationn the new

Ldnder,to research and public education-and above all to thatprocess of personalclarification Aufkldrung).The dispersalof some of the files and the black market n

them strengthenedhe argument or controlledpublic access to the rest: therehad to

be trustworthymeans of confirmingor refuting speculation,myth making,leaks and

smears.14

Federal German urisprudenceon privacyadded anothercomplication.On the one

hand a far-reaching udgementof the ConstitutionalCourtin 1983 had established a

personalrightof 'informational elf-determination'n relationto the state.Individuals

had the rightto know who was collecting, keeping andusing what informationabout

them and for what purposes; subject to public interest and the rights of other

individuals,a breachof these rightswas a breach of the personal rights in AA 2 (1)and 1 (1) of the Basic Law.15Who in 1990 stood more in need of such 'informational

self-determination' han the victims of Stasi surveillance?On the other hand the same

decision of the ConstitutionalCourt made it illegal for Federal authoritieseven to

keep most of the Stasi records. Clearly, unless they were to be totally destroyed,their status and use had to be regulated.And the conflict of rights and interests

308





involved suggests the balance that such a regulationmust try to achieve: personal

rightsboth of access andprivacyhad to be securedfor individuals,and thesepersonal

rights had to be weighed against a public interestin the use of the files for other

purposesarisingfromthe

collapseof the

GDR-prosecutionof state

crimes,compen-sation of their victims, administrative reconstruction and public education. The

legislative task was an urgent and pioneering one, and the parliamentarydebates

convey a sense both of concern to uphold the Rechtsstaat and of barely contained

anger that a Rechtsstaat was so poorly equipped to settle accounts with state

oppression.Still wider dimensions of the problem are suggested by the experience of Ger-

many's CentralEuropean neighbours. Legislative attemptsat 'lustration'-the ex-

clusion from responsible posts of communist and political police officials-came to

nothingin Poland andHungary, n the latter struckdown by the ConstitutionalCourt,in the formerrejectedby the Sejm, after a periodin which politicianshad soughtto

make capitalout of their access to the files.16 n both these countriespolitical policesurveillancehad been less pervasive, 'decommunisation'had begun in practice longbefore 1989, and the ousting of the communistregime had been to some extent a

negotiatedone. In Czechoslovakia,by contrast, he old regimehadclung to powerto

the end and its political police networkhad been on a scale comparablewith the

Stasi's; here a controversial ustration aw was passed in October1991, two features

of which should be singled out.17 Assessments are conductedby the Ministry of

InternalAffairs (the repositoryof the political police files), which issues certificates

to employers concerning employees' affiliations in the 1948-89 period; for those

certified as political police collaborators here was initially no appeal. Second, the

process was vitiated from a legal point of view when lists of collaborators(partly

inaccurate)were leaked and publishedin May 1992.Not all of this was known duringthe Germandebate of 1991, but enough signs

could be read.They seem to have suggestedthreelessons. First,since the temptationwould be strongfor politiciansin power to use the files for tacticalpurposesif theyhad access, management and work on the files should be removed from the

governmentof the day and transferredo an independent nstitution. To protectthe

privacyof victims andthe legal rightsof alleged collaborators, he institutionshould

work with the maximum of confidentiality.And if wildcat and vigilante operationswere to be avoided, it should be seen to be effective.

The Law: purposes, definitions and principles

The Law and the 'Gauck Authority' (??35-41)

What emergedon 20 December 1991 was the Law on the Documents of the State

SecurityService of the FormerGDR (Stasi-Unterlagen-Gesetz,bbreviated o StUG).When it came into force on 29 December 1991 it replaceda numberof temporary

provisions in or connected with the Unification Treaty, which had themselves

replaced a somewhat hasty GDR law of August 1990.18The Law was sponsored,ratherunusually,by all threemainstreamparties n the Bundestag,the CDU/CSU,the

SPD and the FDP. Not unexpectedly, the PDS, the successor party to the SED,

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JOHNMILLER

opposed the Law on many counts. The Greens also voted against it, principallybecause the Law set up central rather than federalised managementof the Stasi

records; n most otherrespectstheirproposalswere similarto the successful Law.19

Several minor amendmentswerepassed

in1994,

and moresignificant

ones in late

1996.20

The Law puts the Stasi recordsin the chargeof a FederalCommissioner Bundes-

beauftragter) or the Documentsof the StateSecurityServiceof the FormerGDR, an

independentofficial elected by the Bundestagfor a five-yearterm,and removablefor

reasons,and by procedures,similarto the dismissal of judges.21The first (and so far

only) Commissioners JoachimGauck,a ProtestantpastorfromRostock,afterwhom

the Federal Commission has come to be called the 'GauckAuthority'.Gauckplayeda leadingrole in the East Germancivil rightsmovement,was placed in chargeof the

Stasi central archives by the Volkskammer n August 1990, and confirmedin that

positionby the Federalgovernmenton unification.22He is one of the few figuresfrom

the 1989 revolutionto be successful in post-unificationpolitics.

Purposes (?1)

The Law's purposesare set out in its firstparagraph:

(i) To allow the individual access to informationstoredby the Stasi abouthimself,so thathe can clarify the influence of the Stasi on his personalfate;

(ii) To protectthe individualfromimpairmentof personalrightsarisingfrom use of

informationstoredby the Stasi abouthimself;

(iii) To ensureandpromotehistorical,political and legal analysisof the activitiesof

the Stasi;

(iv) To put at the disposalof public andprivateinstitutions he informationrequiredfor the purposes specified in this Law.

Purposes(i) and (ii) lie in the field of personalrights,while (iii) and (iv) are publicinterestpurposes.In general one would expect an element of conflict among such

purposes,and legislation of this kind anywheremust adjudicate among conflictingclaims, especially between personal rights and public interest. Thus the conflict

between the privacypurpose(ii) and the public interestpurposes(iii) and (iv) is a

familiarone for law in developed societies. Not so familiarperhapsis the role of

purpose (i),which I shall call the Law's clarificationor

Aufkldrungpurpose,and

which (to judge from its position) has a certainpriority.It seeks to vindicate the

personalrightsof the Stasi's victims,but-it is implied-this cannot be done without

disclosing the names of Stasi agents and hence infringing their rights to privacy.

Somethingshould be emphasisedhere. Many acts of Stasi agents were criminal,and

purpose(iv) includes the gatheringof evidence for theirprosecution.But some were

not: it was not illegal to pass on the damaging gossip that went into many of the

records.23Nevertheless, says this Law, there is a public interestin purpose (i), the

Aufkldrungpurpose, and before that public interest some personal rights of Stasi

agents, irrespectiveof their conduct, must give way. It is the most innovative and

controversialaspect of the Law.

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THE GERMAN STASI RECORDS

Definitions and classification of persons (?6)

Where possible, the Law derives its basic concepts from the Federallegislation on

archives and privacy:24 he distinctions, for instance, between personal and non-

personal nformation,between the rightsof ordinarycitizens andof public figures,orthe notion of 'anonymising'a recordentry.But in many respects this is pioneering

legislation and its draftershad to develop their own definitions and categories.This

is particularlyhe case with the classification Einstufung)of the personsnamedin the

records,somethingcentral to the Law. As the records areprocessed,personsreferred

to in them are to be fitted into one of four main categories:

(i) 'Affected persons' (Betroffene,?6 (3)): an affectedpersonis anyone who was

the targetof a deliberate nformation-gatheringroject by the Stasi, unless the

purposewas the monitoringof its own personnelunder(ii) or (iii) below. For

a personto count as 'affected' we shouldpicturea directive or the equivalent

being issued to open a file on him or her. (Wheresuch directives were kept,they now serve as useful aids in the location of records.)

(ii) 'Collaborators'(Mitarbeiter,?6 (4)): collaborators are either former official

employees of the Stasi or other persons who 'declared themselves ready to

supply information' to it ('Personen, die sich zur Lieferung von Informationenbereiterkliirthaben'). The latter definition of informeror 'unofficial collabora-

tor' is thus couched in terms of documented ntent, ratherthan of the fact of

supplyinginformation.The Stasi kept registersof its informers and as a rule

sought undertakingsfrom them, usually in writing, of readiness to supplyinformation25-and the fact that such undertakingswere kept on file is crucial

to the workingof the Law. But there were exceptions to this rule, and some

commentators hink the definitionin terms of intent is unduly restrictive and

serves to protect people who should be treatedas collaborators.The Law itself

shows marks of this controversy.In one specificcontext (?13 (5)) it introduces

the notion of delators or denouncers(Denunziante); hese are not defined,but

the notion suggests a definition n terms of fact rather han intent. These issues

will be discussed below.

(iii) 'Advantagedpersons' (Begiinstigte, ?6 (6)): those who received substantial

advantages rom the Stasi, typically in the form of materialor career advance-

ment, or of protectionfrom prosecution.26

(iv) 'Third parties' (Dritte, ?6 (7)): any other persons about whom the Stasi

collected information and who do not fit into categories (i)-(iii). Importantamong 'thirdparties'arepersonsaboutwhom informations on file, but without

themhavingbeen the objectof a deliberate nformation-gatheringxercise as in

(i) above; the information was gathered incidentally to anotherexercise, or

casually or speculatively.But for information o be about a thirdpartyit must

have been collected with a view to use; the waiter who appears n a filmedpub

interrogation, r the bartenderwho hires out the room,are not thirdparties;nor,unless they fit one of the earlierdefinitions,arepublic figuresmentioned n the

files.27

These four categories resolve themselves for the greaterpart of the Law into two

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JOHN MILLER

broaderones. In general(i) and (iv), affectedpersonsand thirdparties,are bracketed

together and have similar rights, and it will be convenient to use the shorthand

'victims' for these two categories.28 o too collaboratorsand advantagedpersonsare

treatedsimilarly

and have similarrights

underthe Law.

Before personal information in the files may be used outside the Authority,the

personsreferred o in them (those who have rightsunder the Law) must be allocated

to one of these four categories.And it makes a considerable difference in which of

them a personis placed. It is extraordinarilyesponsiblework. Many files have been

interfered with and must be reconstructed.Most collaboratorsare referredto bycover-names, and the identity of a cover-name with that of a real person must be

established unambiguously (eindeutig, ?13 (5)). Further,it will be apparentthat

many persons must fit into more than one category:the affected person of one file

will be the thirdparty in another;many advantaged persons may also have been

collaborators; he same personmay have been an affectedperson and a collaborator

at different times or even simultaneously. The Law's ruling, therefore, is thatpersons are to be categorised separatelyfor each record-indeed each context-in

which they appear (?6 (8)). Clearly evidence may need to be brought from

elsewhere to establish, for example, that someone had signed an undertakingto

collaborate; but it is the role played by a person in the particularcontext that

determines how he or she is classified for thatcase. One may be an affected person,entitled to an affected person's rights, in one context, and a collaborator,with

considerablyfewer rights, in another.

More important still are two other principles of the Authority's work. First,decisive for the above classification is 'the purpose for which information was puton file' ('mit welcher Zielrichtung die Informationen in die Unterlagen aufgenom-

men wordensind', ?6 (8))-and, it should be noted immediately,the 'purpose'herewas that of the Stasi. Thus the Authority'sclassification of persons as collaborators

amountsto a claim, not that they were collaborators,but that the Ministryof State

Security treated them as such.29Second, the Authorityis allowed to work 'accord-

ing to archival principles' only.30 Its job is thus the location, compilation and

exposition of Stasi purposes insofar as they can be documentedplainly from the

files; it is not the impositionof political,judicial or even (one is sometimes temptedto think) scholarly interpretationon them. The precise boundarybetween work on

archival principles and interpretationseems not to have been fully clarified.

Research-informedinterpretationof Stasi 'structure, methods and practices' is

allowed forpurposes

ofpublic

education, and thismay

extend to certain,verylimited, types of public comment about persons.31 But it is not clear whether the

Authority-in the reconstructionof shreddeddocuments, for example-may go on

from forensic to stylistic, Quellenkritikmethods-and this does not exhaust the

possible questions about 'archival principles'. The implications of this for legal

challenges to the Authoritywill be taken up below.

It is clear from this that GauckAuthorityclassifications are not meant to be acts

of judgement, and that the Authority is not meant to exercise judicial functions.

But-one cannotrefrain from adding-the Law's provisions for this crucial matter

are 'buried'in two very inconspicuousphrases.Thousandsof ordinarypeople (evensome lawyers) who sought to use it plainly did not grasp their significance.32

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Principles of access (??3-5)

Againstthe backgroundof these definitions,the Law offers five generalprinciplesof

access to and use of the records:

(i) Any person is entitled to be told whether informationabout himself or herself

is in the records, and, if so, to be given access to and copies of those records

without charge-though on different terms, dependingon the role he or she

plays in them (??3, 12-18, 42). Circumstancesallowing identification of the

particular ase should be cited in an application,but otherwiseno reason need

be given for it-the fact of being named constitutes a legitimate interest in

access. Priority n processingis given to applicationsneededfor legal cases, bythose formerly mprisonedby the GDR or confined to its psychiatric nstitutions,or by the terminally ll (?12 (3)).

(ii) Where records contain personal information about victims other than the

applicant,such informationmust be blanked out ('anonymised') in the copiesshownandsuppliedto the applicant-unless all othervictimsagreeto its release,or the information s trivial (?12 (4)).

(iii) After a stipulatedperiod victims may apply to have informationconcerningthemselves deleted from the originalrecords(?14).

(iv) Other persons or institutions may have access to certain records for a fee

(??19-23, 25-26, 29-34, 42), but only where they have a legitimateinterestin

the information,wherethat interest s one sanctionedby this Law, andprovided

they use the informationonly for the purposecited in the application,and not

as they see fit. Unlike the Federal Archives Act, StUG imposes no '30-yearrule'-but neither does it countenancefishing expeditions.

(v) With an importantexception, personal information about victims may not beused to those victims' detriment(?5 (1)).

Access to records and use of their contents

By early 1996 more than three million applicationsto see files had been submitted,morethana thirdof themfor access to the applicant'sown files;of this lattercategoryabout half of the applicantsfound that the Stasi kept a file on them. The flow of

applicationsincreased in late 1994 and, at the time of writing, shows no sign of

abating.33The present section examines access to the personalrecords, the central

concern of the Law. This may be either access to records aboutoneself, or access to

records about otherpeople, the latterprincipallyfor StUG public interestpurposes.

Access to personal information about oneself (??12-18)

Affectedpersonsandthirdpartieshave a rightto be told what information oncerningthemselvesis held in processedStasi recordsand,on furtherapplication, o sight such

records and to receive copies of what they are shown (?13). In what is shown or

copied to the applicant personal informationabout other affected persons or third

partiesis anonymised,but not names of or referencesto collaboratorsor advantaged

persons;these are disclosed to the applicant ?12 (4-5), ?13 (4)). If the collaborator's

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JOHN MILLER

(or, in writtendenunciations, he delator's)name is a cover name, the applicantmay

apply for a furthersearch to be made for the real name, and to be told it, if it can

be identified unambiguously.However, where the pseudonymouscollaboratorwas

aged under 19 at the time when the information was laid, it is thought better to

presumediminishedresponsibilityand the real name is to be keptsecret(?13 (5-6)).34

Finally, victims may use any information hey obtainfrom the Authorityas they see

fit, within the law (?3 (2)); in particular hey may confront informerspersonally,or

use theirknowledge for court actions, or publish it.

Two furtherprovisionspromotetheprivacyof informationabout victims. First,the

Authority may transfer the records' contents into electronic form only in order to

facilitate location of files or identificationof persons (e.g. by compilationof indexes

or catalogues). It is forbidden to set up any automatic retrieval or transmission

procedures ?41). Second,once the Law has been in force for a statedperiod,victims

may apply to have informationconcerningthemselves anonymisedin the original

records and to have their names deleted from the Authority's indexes-unlesspreservationof the informationremains imperativefor legal or historical reasons

(?14). If anonymising s impossible,the record(e.g. a film) is simply to be destroyed.In the original legislationsuch applicationswere scheduled to begin in January1997,when the Law had been in force for five years;the amendmentsof 1996 postponedthem until 1999, on the groundsthat the processing of the archives would not be

completeduntil then.

Access to and use of material about themselves by collaboratorsand advantaged

persons(??16-17) differlittle from the above. They have access, first,to information

in files kept on themselves (ie personnel files) on the same terms as victims

(anonymityof other victims but not of othercollaborators).Second, StUG anticipates

a particular easonwhy collaboratorsmay wish to see records-to document a claimthat their collaborationwas less thanalleged:in such cases the Authoritywill answer

the initial applicationwith a summaryof the applicant'sactivity for the Stasi-how

frequently he or she submitted reports, about what sort of people etc. Third,collaboratorsmay have access to reports hey themselvesprepared-they may refresh

theirmemoryin fact-if they can satisfy the Authority hatthey have a legal interest

in this and one which outweighs the interestof victims in privacy;a case in point

might be an attemptto disprovean accusation of denunciation.35

Finally, where informationin the records is challenged or proved incorrect,the

recordsmust be so annotatedandpreviousrecipientsof incorrect nformationmustbe

notified of this (?4 (2-3)); but the Law makes no otherprovisionfor notifyingpeoplethatthey have been classifiedby the Authority,nor does it offer them an opportunityto state theircase, nor remedies for incorrect classification.

Access to personal information about other persons (??19-34)

Access to the records,includingaccess to personalinformationabout otherpersons,

may be sought by public andprivate organisations n theirformalcapacity,and also

by the media and researchers. t will be useful to considerthese two groupsof user

together,but to treat the case of intelligence services separately.A common set of groundrules applies to use of the recordsby public andprivate

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organisations ??19, 29). They may use the recordsonly for purposes specifiedin the

Law, andnobody-including thejudiciary,thepolice and the Authority tself36-mayinitiate speculative searches for potentiallyuseful material.Applicantsmust satisfythe Authority hat theirpurposeis one permittedby this Law, thatit falls within the

formal competenceof the applicant,and that use will be confined to that purpose.Thus employersmay inquirewhethertheir managerialemployees have a history of

Stasi collaboration-but they may not inquireabout the rest of the workforce,nor

about past employees, nor about court convictions among their managers. Such

inquiriesmay be institutedby the directors,but not by the elected works council

(Betriebsrat).If an employerdecides after inquiryto employ a formerStasi worker

(not uncommon in the police forces) it may not use this information for other

purposes,for instance, to justify withholdingpromotion.37

Any public or private organisation(but the provisions are aimed particularlyat

courts and stateprosecutors)may applyfor a generalsearchto be madefor evidence

towards cases of specified types: examples are rehabilitationand compensationofvictimsof the GDR state,unresolved nquests,disputesaboutpropertyownership,and

defence of personal rights (??20-21 (1) nos 1-5). The same proceduremay be used

for criminal nvestigations wherechargeshavebeen laid),but for most criminalcases

the search must be confined to non-personal iles and files concerningcollaborators

and advantaged persons (?23 (2)). Only in the case of state-sponsoredcrimes or

especially serious crimes (eg murder,arson,kidnapping,hijacking, drug trafficking)

may the searchbe extended to the personalrecords of victims, and in these cases

alone personal informationmay be used against the interests of the victims (e.g.disclosed in court); the importanceof these prosecutionsis held to outweigh the

encroachmenton personal rights (?23 (1)).

Checksby employers(??19, 20-21 (1) nos 6-7) have formedthe largestcategory,almost 60% of applications.An employer, whether state, private organisationor

business, may ask for checks on specified senior employees (or applicantsfor such

posts) to enable it to decide whetherthey were Stasi workersor collaborators. f theywere, if this makes themunsuitable or thejob in question,andif they wereagedover

18 at the time, that is a legitimate ground for dismissal, as laid down in the

UnificationTreaty.Also derived from the Treaty s the criterionused at this point:it

is activity (Tdtigkeit)for the Stasi, ratherthan preparedness o supply information.

The list of posts whose incumbentsmay be checked includesministers,parliamentar-ians, public servants, ocal councillors, udges and solicitors,directorsand managers,office bearersof politicalpartiesandchurches,andjobs requiring ecurityclearance.38

The search must be conducted with the knowledge or consent of the person

investigated,39ndmust be directed nitiallyto the non-personal iles; only if thatfails

to clarifythe issue may resort be had to personalfiles. The checks may continuefor

15 years (until December2006), after which the fact of Stasi collaborationmay not

be used to a person's detriment.40

The Law spells out carefullythat the Authoritymakesno judgementsandplays no

judicial role in employmentchecks. Its duty is to issue employerswith notifications

(Mitteilungen)-statementsof the evidencethat the Stasidid or did not view someone

as a collaborator;hey are compiled on archivalprinciplesand have no legal force.

On this basis employershave to make their own employmentdecisions, subjectto

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JOHN MILLER

labourlaw, as modifiedin this case by the UnificationTreaty.If a notification does

not resolve a case, the employer may (and is urged to) seek clarificationthroughaccess to the files. Litigationhas made it clear thatprinciplesof naturalustice apply:each case must be decided

separatelyand the burden of

prooflies with the

employer.41 iguresfor the proportionof notifications hatallege collaboration ange,for differentprofessions,from fourto 22%; t is claimed thatup to 30% of these result

in dismissals. This might suggest dismissals of the order of perhaps60-100 000 by1996. Another source refers to 'more than 10 000 dismissals of GDR state servants

for Stasi collaboration'.42

Confinement to specified purposes and minimal intrusion into the privacy of

victims are thus characteristicof the rules governingaccess to other people's files.

The tension of balancingpersonalrights against public interestemergeswith particu-lar force in the paragraphs ??32-34) governing access and use by the media and

political and historical researchers-provisions which were toned down at the last

minuteafter a hostile media campaign.43Researchersandjournalistshave access tothreetypes of record.These are, first, records that contain no personalinformation,andcopies that have been completelyanonymised.Any personalfile, second, may be

seen with the writtenpermissionof its subjects.Third and most important,personalrecordsmay be used withoutprior permissionwhere they concerncollaboratorsand

advantagedpersons,or public figuresand office bearers nsofar as these latter are not

victims; but the Authority may withhold recordswhich disclose privateor intimate

details unconnected with the person's role in the files. Thus the fact of Stasi

collaborationor one's activities as an official are not protected,but one's sexual

preferencesare.44

Similar rules govern publicationof personalinformation from the Stasi archives,

whether obtained directly from the Authority or (for example) from victims:personal information may be published, first, about collaborators, advantaged

persons, public figures and officials, and only insofar as it concerns them in these

roles and does not encroach on their personal rights-or otherwise only with the

consent of its subjects.Verbatimpublicationof personalinformationabout victims

attracts a penalty of up to three years imprisonment (?44), but-one of the

last-minute concessions StUG provides no sanctions against publication of a

summary of the same information, nor against other breaches of its disclosure

provisions.45One majorcategoryof use of otherpeople's files remains:

The Stasi records and security services (?25)

The Stasi had been engaged not just in domestic surveillance but in espionage,

counter-espionage ndsubversiondirectedat foreigncountries; n particularhe GDR

had pouredmassive resources into its intense strugglewith the FederalRepublic.It

is not surprising herefore that the Stasi archives should include classified material

aboutand from other statesincludingtheirsecurityservices,nor that the latter should

have shown stronginterestin the fate of the Stasi and its knowledge and assets. It

seems clear that some of the archives had come into the hands of Federal German

securityagencies before unification.46On the other hand there was strongfeeling in

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the formerGDR, especially among the 1989 revolutionaries, hat the Stasi records

shouldnever againbe used by or for intelligencepurposes,and the FederalRepublichadundertakenin an addendum o the UnificationTreaty)to respectthis principle.47The conflict between

publicinterest and

protectionof

personalrightswas at its most

acute here.

Where documents of Federal German institutions above a certain securityclassification are found in the Stasi archives, they must be handed over by the

Authority to the Federal Minister of the Interior;copies may be kept, but theymust be storedseparatelyand not used except with ministerialpermission.Restric-

ted documents of foreign states and international organisations, where the

Federation has a duty of confidentiality, must also be transferred (without

being copied) to the Minister. Stasi-produceddocuments about intelligence agentsof the Federation and its allies, the employees of 'other intelligence services', and

about means and methods of espionage, counter-espionageand terrorismmust also

be stored separately with restricted access, and if they constitute a particularsecurity risk may be taken over by the Minister.48Where, on the other hand,

intelligence services of the Federationhold Stasi records about affected persons,these must be handed over in full, without promptingor copying, to the Authority(?8 (1), (3)).

Under ?25 the Authority is charged not to let any record containing personalinformation about the Stasi's victims be used 'by or for' an intelligence service.

There are two exceptions to this. Where the victim worked for an intelligenceservice of Federal Germanyor one of its military allies,49and the informationis

needed to protect that person or service, recordsmay be disclosed insofar as theycontain personal information relevant to this purpose. And they may also be

disclosed where the victim worked for 'another' intelligence service (meaning,

surely, the KGB above all) and the information s needed for counter-espionage.In

both cases use must be confined to the specified purpose and not made to the

victim's detriment:a Stasi victim whom the files show to have been a KGB agent

may be debriefed but not prosecuted or dismissed because of it.50 Files on

collaboratorsand advantagedpersons, on the otherhand, are accessible to German

and allied intelligence services if they contain informationrelating to espionage,

counter-espionage,violent extremism or terrorism;here too use must be confined to

the specified purposes. Finally, non-personalfiles are freely accessible to securityservices.

It is evident that thelegislature

did notkeep fully

to theundertaking

odenyintelligence services access to the files. But Stasi files on agents of other security

services posed a problemof substantialpublic interest which (for whateverreason)was not identifiedin the undertaking. ts resolution seems a sensible and consistent

one.51

Criticalanalysis

The analysis so far has revealed a throughand coherentattemptto balance privacy

against public interest.But the Law has had its critics also, and some of this criticism

has not been allayed with time.

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JOHNMILLER

The definition of collaboration

StUG restricts he rightsof Stasi employeesand collaborators: t limits their access to

certainjobs and it provides for the disclosureof their identity to victims. This was

clearlythe legislature'sintention and a particularlynnovativeaspectof the Law, butequallyclearly there was unease about it and a sense that it tested the Rechtsstaatto

its limits.52This promptsseveralquestions.Whatexactly was it aboutStasi collabo-

rationthat, in the minds of its authors,warranted hese restrictions?Can the Law

achieve their objectives efficiently?How does it standin regardto the Rechtsstaat?

In his articleon the use of corrective ustice againsterstwhile communistregimes,Offe distinguishesthe three aims, disqualification,retributionand restitution. It is

clear that the primarypurposeof this Lawlies in the firstfield, thatof disqualification

(although t also contains measures for the supplyof evidence for criminalprosecu-tions andcompensationclaims);StUGis a 'legally-mandated ct designedto deprive

categoriesof

perpetrators... of ... material

possessionsand civil status'.53

Purpose(iv) of StUG(see above) includes the provisionof evidence for the disqualification f

Stasi collaborators rom certaintypes of employment. Purpose(i), it is held, cannot

be realised without the disclosureof collaborators'names, which disqualifiesthem

from privacy rights enjoyed by other citizens.

Disqualification s clearly not a penalty for particularacts that collaboratorsmayhave committed:not all of these were culpablein law, and those that were could be

dealtwith underit. Their fault was not secret informing,which privatedetectives do

as well. Nor was it membershipof or association with an institution hattrampledon

personal rights: that applies equally to the SED.54I think ratherthat the peculiarly

blameworthyfeature of Stasi collaborationshould be sought in a combination of

these: in a secretand,to the public, deceptive relationshipbetween collaboratorsandan oppressiveinstitution.55 everal featuresof StUG become clearerif we see secret

relationships as its target. This is why the definition in terms of intent is so

important-a secretrelationshiphas to be a voluntaryone. It is why Stasi associates

and not, for example, SED members are the subjectof this special legislation. And

it is why advantaged persons, anothergroup whose actions were not necessarily

culpable, are usually bracketed with collaborators.For Gauck such secret relation-

ships did more damage to public trust than the open authoritarianism f the SED.

Hence Aufkliirungwas for him more thanjust a need of privateindividuals-it was

a projectto help restore trust n publiclife through he systematicdisclosureof secret

roles played in the GDR.56 t called not just for the assertion of victims' rightsbut

for the public disclosure of collaborators.There is a public interest,he claims, in

rebuildingpolitical confidencein the new Ldnder,and it requiresthese disclosures.

The decision is, he admits,ultimatelya political one, and hence it is important hat

he persuadedmost of the Bundestag.s57How effective is the Law's definition of these secret relationships?Its success

is impaired,to my mind, by an ambiguityin the definition of unofficial collabora-

tion58-one which was always present but which was exacerbatedby changes at

the bill's committee stage in 1991. In the original draft unofficial collaborators

were defined as those (a) who had declaredtheir readiness to supply information

to the Stasi or (b) who 'had otherwise collaborated with it beyond the call

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of official duty'; the latterclause (with its focus on actions ratherthan intent) was

then deleted becauseof the difficultyof definingofficial duties in the GDR system.59In general, therefore,and in particularwhere disclosure of identity may result, the

Law's definition of unofficialcollaborators s that of ?6 (4):they

arepersons

who

'declared hemselvesreadyto supplyinformation',a definition n termsof intent. But

for purposes of employmentchecks the Authority is asked to determine whether

someone was 'active for' the Stasi.

Two different criteriaof collaborationmay thus be drawnfrom differentpartsof

the Law, andthey seem to imply two different 'sets' of collaborators,argelybut not

completelyoverlappingeach other.Included n one set, but not in the other,could be

people whose undertakingsare on file but who cannot be shown to have done

anythingabout them. More important, here could be others whose collaborationcan

be documented,but not their readiness to inform (if the file has been purged, for

example);this might in turn lead to their names being withheld from victims.

Authoritypractice,court udgementsand the Bundestaghave reduced the inconsis-tencies in treatmentarising from this discrepancy.First, intent to inform may be

deduced on circumstantialgroundsfrom behaviourpatternssuch as regularly kept

appointments.60econd, in employmentdisputesthe courts have insisted on evidence

of 'deliberateand voluntary' (bewufltes und gewolltes) collaboration;61 ismissalshave been overturned n cases of unwitting supply of information,or of written

undertakingsunaccompaniedby evidence that informingactuallytook place. These

led to the 1996 amendmentsgrantingamnestyin the case of undertakingshat did notlead to transmission of information.Nevertheless flaws still remain in the Law'sdefinition of collaboration.

The first concerns denunciation,and especially casual denunciation,often by

telephone;delators,clearly, need not necessarily have been recruited as unofficialcollaborators.The Law refers to denunciationn one place only, in the contextof the

rightof victims to learn the true names of pseudonymouscollaborators;t then addsthat the provision 'applies also to otherpersonswho denounced the affectedpersonin writing' (?13 (5-6)). This recognisesthat delators are not identical with unofficial

collaborators,but does not tell us how they are to be classified under StUG, in

particular hose who did not denounce in writing.62There is a second problemoverthe so-called 'social collaborators' GesellschaftlicheMitarbeiterSicherheitor GMS),

persons in prominentpositions in the GDR who assumed thatgiving information o

the Stasi was partof thejob, or were otherwisenot made to give undertakingsor 'a

handshake might suffice'). We may class here some other informants, amongchurchmenand the intelligentsia, or instance,fromwhom the Stasi thought t prudentnot to extractformalcommitments.63uchpeople were often smartor well-resourced

enoughto put nothingin writing-and in early 1990 they often had good opportuni-ties to remove or clean up their files. Despiteresortto circumstantialvidence, it maythus be difficult to bringsome of the most responsibleandprivilegedof collaborators

to book. Geiger,who worked with the Authority,concedes that it has been easier to

apply the Law to petty collaborators.64

Further,n the Law as it was passed, cooperationwith the Stasi in the line of dutywas treated n the same way as any othercollaboration;t did not take into account,for instance, that conscripts were drafted into the Stasi.65 Where an NCO

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JOHN MILLER

reported o the Stasi aboutthe soldiers in his frontierunit, or a social workerpassedon opinions aboutyouth hooliganismbefore the Leipzig Fair,66we note the Stasi's

tendency to usurpthe functions of the army and the ordinarypolice, and we may

deplore the informants'confused professionalethics-but they answeredquestionsthat tend to get asked in democraciestoo, and it seems harsh to equatetheir conductwith secret work for the Stasi.

The definition of 'collaborator' s thus not precise enough: it may still lead to

disqualificationof people who from a common sense perspectivedid not seek secretcollaborationor do not deservepenalty,and it may allow some serious collaboratorsto escape disqualification.

Powers and accountability of the Gauck Authority

We have seen thatthe GauckAuthority s essentiallya researchbureaucracy nd not

a judicial institution.Yet it is plain that an incorrect disclosure of someone as acollaborator(following perhaps from an erroneousclassification), or an incorrect

notification to an employer,would damage personalrights in a way hard to repair.Whatrightshave individuals and organisations o challengethe Authority'swork or

get them reviewed? Whilst the Basic Law (A19 (4)) provides a generalrecourse tothe courts for persons who claim their rights have been damaged by a public

authority, he practicalitiesof such recoursein the case of StUG are rathercomplex.Pride of place in German administrative aw has classically been given to the

Verwaltungsakt,he official 'act of administration'which has a direct effect on the

recipient's legal position;administrative cts in this formal sense must be communi-

cated to those they affect, opportunity or hearingmust be given, and they are open

to specificforms of legal challengewhich can lead to their revocation.67Rejectionbythe GauckAuthorityof applications or informationor access are administrative cts,and they may be appealedbefore the AdministrativeCourtof Land Berlin.68But itis clear that officials in generaldo a good many things that arenot Verwaltungsakte,and two importanttasks laid by StUG on the Authority would seem not to be

administrativeacts in a formal sense. These are the classification (Einstufung)of

persons named in the files, and the Authority's notifications (Mitteilungen) to

employers.What is the legal status of these operations?I thinkthey are cases of a

'simple administrativeprocedure'(schlichtes Verwaltungshandeln), residualcate-

gory of official actions which are not meant to have direct legal consequences; itincludes the internalprocessingof documents within a state organisation.A 'simpleadministrativeprocedure' carries no entitlement to a hearing, and legal recourse

againstit is limited to actions to stop the procedureor for compensationor damagesfor its effects.69This interpretation f the Authority'sclassifications andnotifications

is suggested by the restriction of its documentarywork to the use of archival

principles,by the limitedscope of its obligationswhen files are shownto be incorrect,andby the care takento place the legal onus for dismissalson employers,not on the

Authority.It is confirmedby phrasesused in legal judgements.70Recourse against the Authority'smost important'decisions' is thus not easy-

becausein law it does not make decisions, it compiles andpresentsevidence to other

people. This has its positive side. Responsibilityfor what is done about this evidence

320





by a reader-victimor employerrests squarelywith that individual,not with lawyersor bureaucrats.Victims arefree to use knowledgedisclosed to them aboutcollabora-

tors as they choose, provided they stay within the law; employersare free to hire or

fire, within labour law. Their choices are not ordainedfrom above norsubject

to a

collective rule of thumb,but must be worked out case by case. Such an offer of

personal responsibility-to people who had felt powerless, in a society where so

much had been determinedin detail by the state-is to treat them as adults and

citizens, and this can only be conducive to morale. And this impactwould seem to

be confirmedby the increasingnumber of applications or file access and by surveyevidence.71n its smallway it is anexampleof thatempowermenthatso many hopedfor frompost-communist egimes, andin which many feel disappointed. t is also the

use of law in a traditionallydemocraticway: not to prescribe,but to set bounds to the

permissible,within which, it is assumed, people may and will do what they like.

There is a disadvantageof course. The lack of provision for hearing of the

Authority's documentarywork, its apparentshelteringbehind executive privilege,promptedsustainedcriticism,not just from 'the left' but from lawyers.72And theyseem to have had a point,because the Authority'spowerswere widely misinterpreted

by its clients. It was all very well for labour aw to stipulatecase-by-case proceduresfor dismissals,with the onus of proofon employers;such legal niceties seem to have

been widely misunderstoodor ignored in practice, and many employers appearto

have treatedAuthoritynotifications as legally binding verdicts or 'certificates' of

collaboration.73It will be recalled that such certificates are used in the Czech

Republic, and a comparisonwith the early stages of denazificationmust also have

occurred to many people.) And such responsesfrom employers in the new Linder

were hardlysurprising.The economy had collapsed, there were hundreds of thou-

sandsof cases to be processed,and few employerswere familiarwith the new legalprinciplesor could affordlegal expenses. GauckAuthoritynotificationsoffered them

a convenient rule of thumb,and they seemed to reverse the burden of proof back to

the employee.This has openedthe way to perceptionsof collectivejustice, of holding'all membersof a group ... automaticallyiable' and thusplacingthemin an unequal

position before the law.74

It has also prompteda flood of litigationfor wrongfuldismissal-often mountedbyresourcefuland energetic professionals (professors, lawyers) with much to lose. A

number of these challenges have been successful, and the courts have often been

robustin their treatmentof Authorityevidence. A 'simple administrativeprocedure'

performed on archivalprinciples' may be privileged,but by the same token it loses

much of its independentevidential force. Threetendenciesmay be observedin these

judgements:75

(i) 'Activity for the Stasi' is interpretedo mean a deliberateand sustainedpatternof collaboration,directedagainstfellow citizens. The formersoldier who thoughthe had been dealing with militarycounter-espionageandwhose informinghad

been confined to armyservice)has been mentionedabove;anotherwas exoner-

ated when he showedhe had workedonly in monitoringWest Germancommu-

nications;a thirdperson had wound down his Stasi contacts after the Prague

Springand his dismissal was overturned.76

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JOHN MILLER

(ii) The courts have been reluctant o endorse dismissalsif the only evidence is Stasi

documents-material acquired llegally by an organisationutterlyhostile to law.

They have looked instead for independentcorroboration uch as witnesses or

material n thealleged

informer'shandwriting.

f theonly

evidence isempty

files

bearingthe informer'sname, the latter has sometimes been reinstated(thoughthe files might have been emptied deliberatelyby the plaintiff or his case

officer). Writtenstatementsof preparedness o informhave been discountedif

therewas no evidence thatinforming actuallytook place. In one case the court

accepted evidence that such an undertakingwas not in the plaintiff's hand-

writing.77(iii) And the courts have been determined to confine the Gauck Authority to

compiling and deploying the evidence, and to exclude it from any apparent

trespass upon the judicial role.78After some ratherbruising court encounters

Gauck commentedruefullythat his staff were torn between 'on the one hand(as

called for by the Law), a descriptionof file contents that takes account ofestablished Stasi rules, and, on the other hand, evaluative commentarynot

foreseen by the Law'.79

Nevertheless the social standing and the psychological and financial resources of

many of these plaintiffsshouldbe stressed. A differentpicture,by contrast,emergesfrom the 'Gauck victims' interviewed in Karau& Vetter's collection: typically in

petty white-collarjobs (social workers, school teachers, clerks), they appear as

depressedand bewilderedpeople with little sense of the differencebetween law and

state power.80In some quarterstherefore the employment provisions of StUG are

likely to have strengthenedperceptionsof collective justice and of victors' and rich

men's justice. This must have been a blow to Gauck's dream of strengtheningpublicconfidencein politics-and helps explain a PDS vote that has stabilised around20%

in the new Ldnder.

Legal means of redress against 'simple administrativeprocedures'do however

exist. Suppose that the Authority has classified someone as a collaborator and

disclosed the latter's name, and that the disclosed person makes good a denial of

collaboration.Such a person may seek redressin the courts-if not for violation of

personal rights (since a simple administrativeproceduredoes not formally affect

rights), then by means of an injunction against the Authority.There seem to have

been surprisingly ew such cases-a sprinklingof injunctionclaims, and the Auth-

orityadmits to a case of mistaken dentificationof a collaborator.81We

mayattribute

this (as does Gauck) to the high calibre of his staff and the safeguardsaround

disclosure of identities-but we cannot escape the suspicion that the Authority's

procedures hemselves look obscure and dauntingto many people.There is a second majorline of criticism of the Authority'sbureaucraticpowers.

Work confined to what the Stasi chose to document cannot by its nature entertain

complexities, especially of motive, that Stasi officers did not, or could not, put on

record.Many informers collaboratedunder duress or blackmail82-and if it can be

shown that collaborationwas involuntary, he courts take this seriously.But Stasi case

officers had strongincentives not to documentexactly how they gained cooperation.And they had strong incentives to fulfil their work norms83or to present innocent

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contactsto their superiorsas collaboration.To problemssuch as these, documentarywork simply cannotgive a satisfactoryanswer. This has led to calls for the buildingof motive into a more nuanced definitionof collaboration.84

The dilemmais dramatisedby the case of ManfredStolpe, for many years before

1989 head of the ManagementBoard (Konsistorium)of the Evangelical Churchof

Berlin-Brandenburgnd Chief Secretaryof the GDR Union of EvangelicalChurches;since 1990 he has been Premierof LandBrandenburg.n early 1992 he publishedan

account of his long-termcontacts and negotiationswith the Stasi, in pursuance,he

claims, of a commission from his Church;yet the Gauck Authorityarguedthat its

records of the informercodenamed'Sekretar'arerecordsof Stolpe and show him to

have been an important ollaborator.Stolpewon an injunction n 1993 to stop Gauck

calling him a collaborator,but failed to stop Gauck commenting on him more

generally.A majorityof a Committee of Inquiryof the BrandenburgLandtagfound

(on partylines) that Stolpe had maintained 'deliberateand voluntary'contactswith

the Stasi and had been registeredas an unofficial collaborator;but it could not beproventhat he had given undertakings, ndhe had not pursuedobjectives prescribed

by the Stasi, nor that damaged his Church. The litigation continues.85Two final

thoughtson this tortuouscase: it is unlikelythat even judicial methodscan convince

us where Stolpe's primary loyalties lay (especially if we accept the possibility of

self-delusion); but documentarymethods certainly cannot. And-with the 'Gauck

victims' still in mind-not everyone has the skills or chances of a ManfredStolpe,re-elected with an increasedmajority n 1994.

Possible alternatives?

Could these problemshave been avoided? Assuming, as seems likely, that publicopinion would have insisted on some measures of disqualification or collaborators,the principleconsideredin Hungaryis attractive:once a primafacie case has been

established,offer the collaboratora privatechoice between voluntaryresignationor

the chance of future disclosure.This has the merit of increasingthe role of personal

responsibilityand avoidingperceptionsof collective justice. But it does not disclose

collaborators' dentities to victims, and this, as we have seen, was at the heart of

Gauck'sproject.Could that objective have been retained but subjected to judicial process? If

everyonewho had been 'adversely'classifiedby the Authorityhad been notifiedand

offered the opportunityof a public hearing, this would have jeopardisedvictims'

privacy. The problem with an ombudsman working in private-perhaps on the

analogy of the military ombudsman,the Wehrbeauftragter-is that it would have

been hardto find a lawyeroutside the Authoritywith the appropriate xperience;such

an official would not have found it easy to maintain ndependenceof the Authority.Yet something along these lines shouldperhapshave been tried. Given the records'

prejudicedorigins and later interferencewith them, there could be more cases (likethe Stolpeone) open to conflictinginterpretation. he recordshave not yet been fully

explored and tomorrow's discoveries could falsify yesterday's conclusions. This

writer shares the unease about analysis as a 'simple administrativeprocedure'done

on 'archivalprinciples'.86

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JOHNMILLER

The alternativeof amnestywas supportedby many public figures87 nd broached

by the Bundestagin 1996; particular eatures of the amendmentsof that year are

partialamnestiesfor collaboration hat had stopped by the end of 1975, for collabo-

rationduringconscription,

and for thesigning

ofundertakings

which did not lead to

the supply of information.88But by 1996 much of the damage had arguablybeen

done.

Conclusions

Why attemptcorrective ustice in the firstplace? Why-with Mandela's South Africa

in mind-have we heard no hint of 'reconciliation' between the two German

'systems' formerly n conflict? For two reasons,I think.First,the cases of politically

organisedreconciliation that have come closest to success seem to be those that

emerge from hard-woncompromise n which the defeated are defeated,yes, but still

hold considerableresources;they allow, for instance, leaders like Pinochet or deKlerk still to hold political office.89But both the SED and the GDR collapsed from

within, and nobody (not even the PDS) tries to defend Leninism or the Russian

connectionnowadaysin the way that officer families in Latin Americamay still tryto defend military'honour'.Second, we may underestimate he legalistic element in

post-warWest Germanpolitical culture. The ParliamentaryCouncil that draftedthe

GermanBasic Law in 1948-49 was overshadowedpsychologically by the experienceof Weimarand the ThirdReich-and it wrote a Constitutionas proof as possible not

only against hijackingbut also against populismand mass emotion in politics. Little

room was left for 'common sense' or the 'reasonableman', because these had shown

they could not be trusted.The outcome was a political elite and process in which

lawyers played a major role, and it was intrinsically likely that the problems ofunification would be addressedby legal methods.

Given this approach,how should we evaluate the Stasi Records Law? And what,if anything,does the case suggestabout the place of corrective ustice in post-commu-nist transitions,and about means of promotinga legal culture?

First,the Law's provisionsfor victims' personalAufkldrungwould seem to be its

most attractive eature. Direct sociological evidence is sparse,but, if my estimatesin

this article are reasonable,perhaps half a million persons have read their Stasi

file-compared with at most a fifth of that numberwho have incurreddisqualificationin employment.In the case of the formergroupone can readily imaginethatthis will

havestrengthened

heir confidence inpublic

affairs-albeitagainst

abackground

n

which many other provisions of unification-concerning property ownership,resti-

tution andprivatisation-worked in the oppositedirection.By contrast, he provisionsfor disqualificationn employment-though greatly superior o the Czech approach-were still too readily misunderstood and misused by employers, with consequent

damageto the Authority's reputationand the rule of law. And the means by which

Authorityproceduresare shieldedfrom scrutinyand challengeare surelytoo sophis-ticated.They may be constitutionallyunimpeachable,but from ordinaryperspectivesthe Authoritydoes take importantdecisions affectingpeople's lives, and to deny this

sounds like casuistryand paternalism.Second, what does the study add to our understandingof correctivejustice? It

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confirms two things, I think. The Law could hardly have worked at all if it had not

been for the legal and administrative system of Federal Germany; if East Germans

had not been a minority in the united Germany; and if they had not been familiar with

the Rechtsstaat tradition since the eighteenth century. Its success has depended on

their basic confidence in an impartial, uncorrupt, leak-proof public service, in judgesand due process, and in each other's law-abiding behaviour.90 And it has worked best

where it draws on simple legal principles or familiar moral ones. To generalise:corrective justice is a luxury which can hardly be attempted except in an established

legal culture. And it follows that it has no place in many of the post-communist

transitions, those in countries unfamiliar with law.91It is a bleak conclusion: the best

chances for law, as for democracy and the market, are in those places that alreadyhave some experience of them.

Can anything be done then to promote a legal culture among people unconvinced

or disdainful of its advantages? It is an elementary point but it bears repeating:

legislation by itself cannot create a Rechtsstaat. No amount of rule making can bringpeople to respect rules; that comes about through long-term, positive experience of

polities that practice the rule of law. The Stasi Records Law reminds us of some waysof fostering such experience, as well as of some temptations better avoided.

La Trobe University

Quotations rom WolfgangSchiuble, Der Vertrag:Wie ich liber die deutsche EinheitverhandelteStuttgart, 991)p. 273, andNeuesDeutschland, 0 April 1990,p. 5. I should ike toacknowledgekind assistance n the preparationf this article romMartinChanock,Ross Martin,JamesMcAdams,RudolfPlehwe,KlausRichter,J6rgSchadtandSpencerZifcak.

For recent critiquesof corrective ustice see Bruce Ackerman,The Future of LiberalRevolutionYale UniversityPress, 1992) especially pp.69-98, andClausOffe, 'Disqualification,

Retribution,Restitution:Dilemmas of Justice in Post-CommunistTransitions',The Journal ofPoliticalPhilosophy, , 1, 1993,pp. 17-44.German ourcesquotePopeInnocent in 1414onleavingthis kind of task to theJudgement f God.

The followingeditionsand/orcommentariesn the Law havebeenused:Hansj6rgGeiger(ed.),Stasi-Unterlagen-GesetzNordlingen, 993);H. Geiger&HeinzKlinghardt, tasi-Unterlagen-Gesetzmit Erlduterungenur die Praxis (Koln, 1993);DietmarSchmidt & Erwin D6rr,Stasi-Unterlagen-Gesetz:Kommentarur Betroffene,Wirtschaftund VerwaltungKoln, 1993); KlausStoltenberg,Stasi-Unterlagen-Gesetz:ommentarBaden-Baden,1992). Valuable also are theseminar roceedingsWinfriedHassemer& KarlStarzachereds),Datenschutz ndStasi-Unterlagen:Verdringen derBewdltigen?ForumDatenschutz, and1,Baden-Baden,993).Stoltenbergs beston the evolution of the Law andprintsthe relevantparliamentaryebates;Geigerwas DeputyCommissioneror the Stasi Recordsat the time he publishedhis works.

See in particularoachimGauck,Die Stasi-Akten: as unheimliche rbe der DDR(Reinbek,1991),pp.91-92, 96-100, also in Hassemer& Starzacher, . 21, in 'Dealingwith a Stasi Past',

Daedalus,123,1,Winter1994,pp.278-80, 283,and n Das Parlament, 996,44-45, p. 17;comparethe Bundestag peeches n Stoltenberg, p.357, 400-402, 408-410.See RudolfWassermann,Rechtssystem',n W. Weidenfeld& K-R.Korte eds),Handbuch

zurdeutschenEinheit Bonn, 1993),pp.557-565;Friedrich-Christianchroeder,Die AhndungdesSED-Unrechtsdurchden Rechtsstaat',Aus Politik und Zeitgeschichte,1995, 38, pp. 17-29. Athoughtful urveyof the issues involved is A. JamesMcAdams, The HoneckerTrial:The EastGermanPastandthe GermanFuture',The Reviewof Politics, 58, 1, Winter1996,pp.53-80.

See the 'Mauerschtitzen'udgement f 24 October1996(BVerfG,2 BvR 1851, 1853, 1875and1852/94).AnothermportantConstitutional ourtudgementof 15 May 1995largelyexcludedfromprosecutionGDRcitizenswho hadspiedonthe FederalRepublic BVerfG,2 BvL 19/91,2 BvR1206/91, 1584/91,2601/93).Here andbelow,I am indebted or Constitutional ourtmaterialsoPressemitteilungesBundesverfassungsgerichtsInternet:ttp://www.jura.uni-sb.de/Entscheidungen/Bundesgerichte/BVerfg/)nd to GLAWGermanCase Law (http://www.uni-wuerzburg.de/glaw/index.html).

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This is the purpose of the First and Second Gesetze zur Bereinigung von SED-Unrecht, of 29October 1992 and 23 June 1994, the first dealing with legal and the second with administrative

(including SED) acts; see Bundesgesetzblatt (hereafterBGBI), 1992, PartI, pp. 1814-1821, and 1994,

I, pp. 1311-1321. A Versorgungsruhensgesetzwithdrew state pensions and benefits awarded by theGDR on political grounds (ibid., 1991, I, p. 1684).

See Annexe I to the Einigungsvertrag, chapterXIX, section A III, paragraphs1 (4) and 1 (5).One must say 'encourage' at this point because most public service is a Land, not a Federal matter.There is in consequence some variation in public service employment practice among the Linder;

compare, for instance, the precise terms of unsuitability for it in the legislation of Mecklenburg,Sachsen and Thtiringen, reprintedin Geiger (ed.), pp. 168-170, 179-180, 190.

Compare Schauble, pp. 267-68, and the Constitutional Court judgements of 8 July 1997,BVerfG 1 BvR 1243/95, 1247/95, 2111/94 (Pressemitteilung des Bundesverfassungsgerichts, 1997,Nr. 64).

10 See Gauck, Akten, pp. 11-12, 106-107; Geiger (ed.), p. xii; Hans-Georg Golz, 'Seri6seZahlen zum IM-Bestand', Deutschland Archiv, 1994, 4, pp. 343-344.

1 Gauck quoted in Das Parlament, 1995, 40-41, p. 14. Processing will not be completed beforethe end of 1998.

12 See Gauck, Akten, pp. 13-15, 76-90, 109, and Geiger & Klinghardt, pp. 7-8. For trade inStasi documents see Hassemer & Starzacher, pp. 42-43, 52, 58; for the involvement of Federal

security, see the partisancollection of Ulla Jelpke, Albrecht Maurer & Helmut Schr6der (eds), DieEroberungder Akten (Mainz, 1992), pp. 29-32, 47-48, 129-149. For a detailed description of current

holdings and their state, see Zweiter Tatigkeitsberichtdes Bundesbeauftragtenfar die Unterlagen des

Staatssicherheitsdienstes der ehemaligen DDR, 1995 (Berlin? 1995), pp. 39-72.13 See Gauck, Akten, pp. 94-95 and in Hassemer & Starzacher,p. 29.14 For the controversy, closure versus access, see Gauck, Akten, pp. 90ff; Ackerman, Liberal

Revolution, pp. 80-89; Offe, 'Disqualification, Retribution ...'; Spiros Simitis & Bruce Ackerman inHassemer & Starzacher,pp. 33-36, 44-47; Neal Ascherson, 'Bum the lot or publish the lot, but the

days of secret service files are over', Independenton Sunday, 25 February1996; Timothy GartonAsh,The File: A Personal History (London, 1997), especially pp. 194-201.

15This judgement had halted the 1983 Census, largely because of the use the state might be ableto make of some of its findings; see Donald P. Kommers, The Constitutional Jurisprudence of theFederal Republic of Germany (Duke University Press, 1989), pp. 332-336; David P Currie, TheConstitution of the Federal Republic of Germany (University of Chicago Press, 1994), pp. 320-321.

16

Sources on Hungary: Hassemer & Starzacher, pp. 60-61; Ackerman, Liberal Revolution,pp. 109-110; plus information from Gabor Halmai of Hungary's Constitutional Court at a seminar ofthe V World Congress of Central and East European Studies, Warsaw, 9 August 1995. For Poland:Hassemer & Starzacher, p. 35; RFE/RL Daily Report, 1994, 129, 11 July 1994. Compare also

Ascherson.17 See Jiri Pehe, 'Parliament Passes ControversialLaw on Vetting Officials', Report on Eastern

Europe, 1991, 43, pp. 4-9, and Paulina Bren, 'Lustration in the Czech and Slovak Republics',RFE/RL Research Report, 1993, 29, pp. 16-22.

18 See (a) Gesetz iiber die Sicherung undNutzungderpersonenbezogenen Daten des ehemaligenMinisteriums far Staatssicherheit, 24 August 1990, reprinted in Geiger (ed.), pp. 203-210; (b)Einigungsvertrag, Annexe I, Ch. II, section B II (ibid., pp. 13-15); (c) Vereinbarung zwischen derBRD und der DDR zur Durchfihrung und Auslegung des ... Vertrages ..., 18 September 1990, Art.1 (pp. 20-21); and (d) Vorliiufige Ordnung far die Nutzung personenbezogener Unterlagen des

ehemaligen MfS, 12 December 1990, (pp. 191-202). For the relationship among the first three see

Schauble, pp. 275-279, and Stoltenberg, pp. 48-61.19For the Greens' draft see Stoltenberg, pp. 273-289.20 For the 1994 amendments see BGBI, 1994, I, pp. 334, 1748 and 2325, with commentary in

Zweiter Tatigkeitsbericht ..., pp. 105-106, and by Stoltenberg in Deutsch-deutsche Rechts-Zeitschrift(hereafter DtZ), 1994, 12, pp. 386-390. For 1996 see BGB1, 1996, I, pp. 2026-2027, with Das

Parlament, 1996, 50, p. 15 and 1997, 1-2, p. 17. For the Bundestag debates preceding the 1996amendments see Deutscher Bundestag-Plenarprotokolle, 98 Sitzung, 18 April 1996, and 136

Sitzung, 8 November 1996 (Internettexts).21 See ??35-37 of StUG. The office is modelled on that of the Commissioner for Data Protection

(established 1977); it is responsible to the Ministry of the Interior in matters of public serviceconditions and specified matters of national security, but is otherwise subject only to the law.

22 His title in 1990-91 was 'Special Commissioner'. The Authority's work thus dates back to

August 1990, but its terms were greatly expanded in December 1991 by the present Law. Gauck wasre-elected for a second term in 1995.

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23Otherwise, as Offe (p. 33, n. 39) remarks,private detectives would have been in trouble too.

Comparethe precise coverage of the Federal Penal Code in respect of defamation (??185-189), illicit

acquisition of information (??201-202a) or breach of confidence (??2034). In 1951 a crime of

'casting political suspicion' (?241a) was introduced into the Penal Code, clearly with GDR conditionsin mind, but Federal courts found it difficult to apply; see Schroeder, 'Die Ahndung ...', pp. 25-26.

24 In particularthe Bundesarchivgesetz of 1988 and the Bundesdatenschutzgesetz of 1990, thelatter codifying the principles of the 1983 Constitutional Court judgement.

25 See especially Gauck, Akten,pp. 22-23, 30-38, 57-58, 66, 74; compare Geiger & Klinghardt,

p. 4, and Manfred Stolpe, Schwieriger Aufbruch (Berlin, 1992), pp. 127-128.26 The last phrase refers inter alia to West German terroristswho had been given haven by the

Stasi.27 See Geiger & Klinghardt, pp. 43, 137; Schmidt & D6rr, pp. 85-86. There are thus residual

groups who fall outside the four categories and have no particularrights under this legislation.8 The main difference between them is that third parties, not having been the targets of

deliberate information-gatheringexercises, are obliged to provide more detail in their applicationsabout the circumstances in which information may have been gathered about them (?13 (7)).

29 Best in Stoltenberg, pp. 111-112, 189, 201, 218, 226-227.30

Compare ibid. and Stoltenberg in DtZ, 1993, 7, p. 208; S. Simitis, 'Die "Gauck-Beh6rde":

Drei Jahre danach', Neue Juristische Wochenschrift (hereafter NJW), 1994, 2, p. 100; Schmidt &

Dorr, p. 227.3r See StUG ?37 (1) no. 2, ?39 (2) no. 2, with commentary in Stoltenberg, plus the findings of

the Berlin Administrative Court in the Stolpe case, NJW, 1993, 39, pp. 2548-2550. Perhaps the

closest approach to a definition of archival principles is that in Zweiter Tdtigkeitsbericht ....

pp. 41-42.32 Ilse Staff claims that StUG is unconstitutional, apparently because of bad drafting; see

'WiedervereinigungunterRechtsgesetzen. Ein Beitrag zur Verfassungskonformitatdes Stasi-Unterla-

gen-Gesetzes', Zeitschriftfiir Rechtspolitik(hereafter ZRP), 1992, 12, pp. 462-469, especially p. 463,and in Hassemer & Starzacher,pp. 63-64. But I shall argue below that, whilst I share many of her

doubts, the Law was carefully designed to preserve constitutional form; certainly it seems not to havebeen taken to the Constitutional Court.

33 See Zweiter Tdtigkeitsbericht ..., pp. 11, 110-113; Plenarprotokolle, 98 Sitzung; Das Parla-

ment, 1996, 44-45, p. 17.34 It has been claimed that 6-10% of unofficial informers were young people (Der Tagesspiegel

(Berlin), 3 February 1996, p. 4, 5 February, p. 3); informing was especially common in thecompetitive atmosphere of pre-university school classes.

35 See Geiger & Klinghardt, p. 79.36 ??27-28 concern the Authority's duty to notify prosecutors, employers et al. if in the course

of its duties it detects serious crimes, threats to public security or Stasi collaborators in high office;but the Authority may not set out to look for such evidence.

37 See Geiger & Klinghardt, pp. 84-92, 129-131.38 Positions in education come under the public service heading. There is no specific provision

for checks on media employees (Schmidt & D6rr, p. 152). The inclusion of business personnel in the

list helps combat the widespread perception that the Stasi 'laundered' resources and personnel intothe privatised economy; see Geiger & Klinghardt, p. 100. The amendments of 1996 add the staff of

parliaments, parliamentariansand political parties to the list.39 Consent in the case of employees of private organisations, and of all applicants for jobs.40 But in an importantexception former collaboratorsmay still be excluded after 2006 from the

public service; see Schmidt & Dorr, p. 164; Geiger (ed.), p. 155.41 See Stoltenberg, pp. 226, 345, 418-419; Geiger & Klinghardt, p. 98; F. Lansnicker & T.

Schwirtzek, 'Der Beweiswert von Stasi-Unterlagenim Arbeitsgerichtsprozel', DtZ, 1994, 5, pp. 162-

165; A. Stapelfeld, 'Zum aktuellen Stand der Rechtsprechung und zur Praxis des Sonderktindi-

gungsrechtes im Einigungsvertrag wegen Tatigkeit fur MfS/AfNS', DtZ, 1995, 6, pp. 186-192.42 See Zweiter Tdtigkeitsbericht ..., pp. 7-8, 22-23, 33; Das Parlament, 1997, 29, p. 1. Apart

from those dismissed under this legislation, other Stasi employees and collaborators will have taken

early retirement, or else are no longer in employment that calls for checks under StUG.43 See Stoltenberg, pp. 75-77, 196-209 and the Bundestag speakers, pp. 380, 393-394, 414.44 See Geiger & Klinghardt, p. 137.45 See Stoltenberg, pp. 235-239; Geiger & Klinghardt, pp. 170-171. Sanctions against illegit-

imate disclosure are thus weaker than under the Datenschutzgesetz, nor would the Penal Code

necessarily offer remedy.46 See Gauck, Akten, p. 109, and Jelpke, Maurer& Schroder, pp. 30, 129-149, who reproduce

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JOHN MILLER

official Federal claims that this was with the agreement of the then GDR Interior Minister,Peter-Michael Diestel.

47 See Geiger & Klinghardt, pp. 9-11, 119-120; Gauck, Akten, pp. 86, 109-110, 113; article 1

no. 8 of Vereinbarung ... zur Durchfiihrung ..., in Geiger (ed.), pp. 20-21.48 See StUG

?11 (2), ?37 (1) no.3, ?32 (2), ?25 (4).49 Namely NATO allies, but not such friendly countries as Austria, Ireland, Israel, Sweden orSwitzerland.

50Geiger & Klinghardt, p. 121; Schmidt & D6rr, pp. 185-186.

51Compare the arguments reproduced in Stoltenberg, pp. 349, 373, 440, 462-463. The Soviet

Union was of course still in existence when StUG was passed.52

Compare the speeches in Stoltenberg, pp. 367, 370, 372-374, 376, 394-395, 418-419, 428,451, 472.

53 See Offe, pp. 22-23, 27-35.54 Thus I am uneasy when Stoltenberg (pp. 47, 133) writes about a 'reversal of purpose' of the

files, 'for the victims and against the perpetrators', or Schmidt & D6rr (p. 62) about collaborators

being liable for their activities as 'instruments of the apparatusof oppression'.Compare Thomas von Lindheim, 'Zum Begriff der Zusammenarbeit des inoffiziellen und

hauptamtlichenMitarbeiters mit dem MfS', DtZ, 1993, 12, pp. 358-361.56 See Gauck, Akten, pp. 91-92, 96; Daedalus, 123, 1, Winter 1994, pp. 279, 282, Stoltenberg,

p. 440; Hassemer & Starzacher, pp. 20-21; compare Simitis, ibid. pp. 31-32, 37-38. In the draftHungarian legislation, by contrast, the balance between public interest and personal rights favouredthe latter rather more: collaborators were given a choice between disclosure and withdrawal from

public life. It is an approachI suspect Gauck would reject because it does not seek to dissipate publicdistrust.

57 See Hassemer & Starzacher,pp. 22-23. Note that the Greens as well as the CDU/CSU, SPDand FDP supported the disclosure of collaborators' identities.

58 Two other problems with the Law's definitions should be noted in passing. That of

'advantaged person' may be too broad: some of those protectedby the Stasi may have been protectedwith intentions of infiltrationor provocation, and should be better classified as victims (Stoltenberg,pp. 109-10). Besides monitoring its own officials the Stasi may have monitored other GDR officialsfor reliability, and material so collected could lead to such people being classified as victims, andhence (for example) to other victims being denied access to the names of people who treated them

unjustly; see Schmidt & D6rr, pp. 85-86; Stoltenberg, pp. 105-106, 200.

59 See Stoltenberg, pp. 70-71, 107-108, with ?4 (5) of the government draft, p. 249.60 See Geiger & Klinghardt, p. 40; Schmidt & D6rr, pp. 81-82; von Lindheim, p. 358.61 See, for example, Neue Justiz, 1992, 8, p. 371 (ArbGBerlin 64 A Ca 28177/91, 1 April 1992);

DtZ, 1993, 4, p. 107 (LAG Berlin 7 Sa 26/92, 13 August 1992); DtZ, 1993, 4, p. 126 (BAG 8 AZR

537/91, 11 June 1992); and compare von Lindheim, p. 358.62

Compare Stoltenberg, pp. 70, 108, 201; Geiger & Klinghardt,pp. 43, 70-72; Schmidt & Dirr,

pp. 86, 118-119. Geiger is in a position to know, but does not specify how delators are classified.63 See Gauck,Akten,pp. 32, 57-58, 66, 74; Daedalus, 123, 1, Winter 1994, pp. 281-282; Geiger

(ed.), p. xv; Geiger & Klinghardt,p. 4.6 See Geiger (ed.), pp. xv, xx; Schmidt & Dorr, pp. 81-82.65 As confirmed by the backgroundto a case before the Federal Supreme Court (Bundesgericht-

shof, BGH) on 14 March 1994; see DtZ, 1995, 2, p. 57 (AnwZ (B) 78/93).66 From the cases 'Horst' and 'Juirgen' n Gisela Karau & Jens Vetter, Gauck Opfer (Berlin,

1995), pp. 20-32. In a BGH case rathersimilar to that of 'Horst', an ex-soldier won an appeal against

debarmentfrom legal practice with the defence that he thoughthe had been supplying the informationto military counter-espionage; see DtZ, 1994, 9, pp. 314-315 (AnwZ (B) 58/93, 21 February 1994).The 1996 amendments allow amnesty for collaboration in the course of conscript service, providedit was confined to that period and no personal information was passed on.

67 See Verwaltungsverfahrensgesetz,??28, 35-52, with I. Richter & G. F. Schuppert,Casebook

Verwaltungsrecht (Munich, 1995), pp. 123-154, 166-215. The latter suggest that Verwaltungsaktewere of central importance in the establishment of the Rechtsstaat, but that the increased role and

complexity of contemporaryadministrationhas led the Verwaltungsaktto be supplemented by a rangeof other, less clearly conceptualised administrativeprocedures.

68 See Geiger & Klinghardt, pp. 55-56, 68, 133-134, 145; Schmidt & Dorr, pp. 205-206, 221;StUG ?31.

69 See Richter & Schuppert,pp. 246-265. The English legal tradition made similar distinctions

concerning the applicability of rules of natural justice to administrative action, but the scope ofnatural justice has been considerably extended since the 1960s; see M. Aronson & N. Franklin,

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Review of Administrative Action (Sydney, 1987), pp. 91-106, 118-122, 137-140. Richter &

Schuppert cite one case (pp. 259-261, 265, BVerwGE 38, 336, 'Gerichtsarzt') which suggests asimilar trend in German law.

70 See, for instance, the Administrative Court of Berlin in the Stolpe case: 'basic rights protectthe citizen

againstunlawful

impairmentof

anykind,

includingthose

arisingfrom schlichtes

Verwaltungshandeln' (NJW, 1993, 39, p. 2549); or the Berlin Labour Court judgement of 1 April1992, Neue Justiz, 1992, 8, pp. 370-372.

71 In a small sample (197 victims) surveyed by the Hamburg Psychological Institute, 95% said

they were glad they had read their files, and 80% that they felt psychologically less burdened

thereafter;see Zweiter Tdtigkeitsbericht ..., pp. 16-17.72 See Ackerman, Liberal Revolution, especially pp. 84-89; Offe, pp. 23-24, 27-35; Ilse Staff,

ZRP, 1992, 12, pp. 462-469; Hassemer & Starzacher, pp. 45-47, 63-67, 72; Lansnicker &

Schwirtzek, DtZ, 1994, 5, pp. 162-165; Jelpke, Maurer & Schr6der,passim; Das Parlament, 1996,44-45, p. 17.

73 See in particularSimitis, NJW, 1994, 2, p. 100, and the interviews in Karau & Vetter, mostof which make or imply the same charge; compare Hassemer & Starzacher, pp. 64, 66. The basic

purpose of Stapelfeld's article is to remind employers of the law in accessible language, and theZweiter Tdtigkeitsbericht ..., pp. 19, 21, 98, 100 shows the same concern.

74 See Hassemer & Starzacher, pp. 40, 73; Stoltenberg, DtZ, 1993, 7, p. 208; quotation from

Offe,p. 32.Offehave sought common ground in the opposing interpretationsof Lansnicker & Schwirtzek

and of T. Kunze, 'Nochmals: Der Beweiswert von Stasi-Unterlagen im ArbeitsgerichtsprozeB',DtZ,1994, 12, pp. 399-401. Compare also C-H. Germelmann, 'Das Arbeitsrecht in den neuen Bundes-

landem', Neue Justiz, 1992, 9, pp. 391-393. The eight cases decided in the Constitutional Court

judgement of 8 July 1997 (Pressemitteilung des Bundesverfassungsgerichts, 1997, 64) serve toconsolidate the jurisprudence in this field.

76 See DtZ, 1994, 9, pp. 314-315 (BGH AnwZ (B) 58/93, 21 February 1994); DtZ, 1995, 2,pp. 57-58 (BGH AnwZ (B) 78/93, 14 March 1994; Pressemitteilung des Bundesarbeitsgerichts,1995, 44, 14 September 1995 (BAG 2 AZR 862/94, 13 September 1995); Pressemitteilung des

Bundesverfassungsgerichts, 1997, 64, 8 July 1997 (BVerfG 1 BvR 195/95, 2189/95).77 See DtZ, 1994, 3, pp. 121-123 (BAG 8 AZR 561/92, 26 August 1993); DtZ, 1993, 4, p. 107

nn. 7, 18, 21, 43; DtZ, 1994, 5, p. 163 (LAG Berlin 7 Sa 26/92, 13 August 1992); Neue Justiz, 1992,8, pp. 370-372 (ArbG Berlin 64 A Ca 28177/91, 1 April 1992)-where the dismissal was reinstated

on appeal after the hearing of witnesses; DtZ, 1994, 5, pp. 162-163 with nn. 9, 20 (LAG Berlin 3 Sa100/92, 19 January 1993).

78 Examples in Neue Justiz, 1992, 8, pp. 372-375 (ArbG Berlin 82 Ca 18774/91, 6 April 1992);Neue Justiz, 1992, 7, pp. 320-321; NJW, 1992, p. 1975 (BGH 2 BJs 15/92-5, 5 May 1992; DtZ, 1993,4, p. 107 (LAG Berlin 7 Sa 26/92, 13 August 1992); NJW, 1993, 39, pp. 2548-2552 (VG Berlin VG1 A 449/92, 3 June 1993).

79 See Zweiter Tdtigkeitsbericht ..., p. 23.80 See Karau & Vetter, Gauck-Opfer,and confirmedby Stapelfeld, p. 190. Notice the emergence

of the slang neologism 'gegauckt' which needs no translation.81 Gauck expresses surprise in Zweiter Tdtigkeitsbericht ..., pp. 102, 104; Hassemer &

Starzacher,pp. 75-76. Injunctions were sought by Gregor Gysi (Das Parlament, 1995, 24, p. 5) andManfred Stolpe (NJW, 1993, 39, pp. 2548-2552). James McAdams (privatecommunication) was toldof the mistaken identification while interviewing at the Authority.

82 See Gauck, Akten, pp. 28-30, 35-38; Stolpe, pp. 128-129; Stoltenberg, p. 411.83

Compare Stolpe, p. 139.84 See Rolf G6ssner in Stoltenberg, p. 472 and in Jelpke, Maurer & Schr6der, p. 55. The

ambiguities and moral and psychological complexities that lie behind documentation is one of GartonAsh's principal themes in The File; see for example pp. 75-114, 179-184.

85 See Stolpe, Schwieriger Aufbruch, chapter 4, pp. 111-142, first published in Spiegel, 20

January 1992; NJW, 1993, 39, pp. 2548-2552 (VG Berlin, VG 1 A 449/92, 3 June 1993); EhrhartNeubert (ed.), Abschlufibericht des Stolpe-Untersuchungsausschusses des Landtages Brandenburg(Koln, 1994), especially pp. 134-135; Das Parlament, 1997, 22-23, p. 16.

86Compare Stoltenberg, p. 218.

87See, for example, former President von Weizsacker in press reports of 21 January 1995; the

Chairmanof the Bundestag Legal Committee, Horst Eylmann, in press reportsof 18 March 1995 and4 February 1996; H. Geiger quoted in Stapelfeld, p. 192. In 1993 65% of people in the new Ldnder

apparently supported amnesty; see Reuters, 'Germans Want Amnesty for Stasi Spies, Survey Says',11 August 1993.

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88 See references above, no. 20. Even so the Bundesrat insisted on postponing until August 1998the amnesty for collaboration more than 20 years old.

89This at any rate is how I read Priscilla B. Hayner, 'Fifteen Truth Commissions-1974 to

1994: A Comparative Study', Human Rights Quarterly, 16, 1994, pp. 597-655.90

Compare the superb rebuttal in the Bundestag of fears that opening the files would promptpersonal vengeance: 'in that case, our people [in 1989] would have come out on to the streets, notwith candles, but with knives' (Stoltenberg, p. 408).

91 As was urged very early by Offe (pp. 20-21) and Ackerman (in Hassemer & Starzacher,

pp. 46-47; Liberal Revolution, pp. 101-112).

Settling Accounts with a Secret Police: The German Law on the Stasi Records

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