EUROPE-ASIA STUDIES, Vol. 50, No.

2, 1998, 305-330

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

Sometimes I wondered whether we couldn't have destroyed them all sight unseen. (InteriorMinister Wolfgang Schauble on the Stasi records) We contributeour bitter and proud experience at the thresholdbetween accommodation and resistance. (Prime Minister Lothar de Maiziere, 19 April 1990)' I was angry with my friend: I told my wrath, my wrath did end. I was angry with my foe: I told it not, my wrath did grow. (William Blake, 'A Poison Tree')
AREREPLACED BY DEMOCRACIES WHEN TYRANNIES NOWADAYS,these democraciesinherit

a baffling problem in the shape of the tyranny's state papers. Should these papers be kept and used in the public interest-for the prosecution of the old regime's crimes, 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 history and 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. and the Czech Republic, for Post-communist governments in Europe-Russia example-have tended towards a different approach: the use of their executive power to 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 people who 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 ? 1998 University of Glasgow

306

JOHN MILLER

prima facie it looks like an attemptto have popularparticipationcorrect the defects of both bureaucratic and legal procedures.Many democraticgovernmentsof the kind we are considering would be nervous about the effects of such participationon an already damaged social cohesion. A fourth option is 'correctivejustice'-the settling of accounts by the systematic, this is a course public and impartialmeans of law. Despite an apparentattractiveness that has been followed surprisingly rarely.Many societies, afterexperiencingtyranny, are in no state to agree on adoptingcorrectivejustice, nor on the personnelthey trust to carry it out. It is hard for correctivejustice to be effective without breaching its 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 The focus of this article is thus on a ratherunusualcase: a recent attempt at corrective justice, and, within that, an attempt to use a dictatorship's Its aim is, first, a detailed recordsto help society settle accountswith that dictatorship. analysis of the GermanLaw on the Documents of the State Security Service of the Former German Democratic Republic.3 This leads to some consideration of the legislation's impact on society in the former GDR, and thence to some thoughts on the place of law and legal methods in post-communisttransitionsin general. The communistregime of the GDR collapsed in late 1989 under a combinationof popular pressure, withdrawalof Soviet support and its own sclerosis, and the civil rights activists who seized the initiative then are rightly creditedwith Germany'sfirst bloodless democratic revolution. But-great as their achievement was-the 1989 revolutionarieswere not representativeof a dispirited GDR society. The first free elections of March 1990 rejected them, and the democratic government that was formed in April faced a massive population exodus. It soon found itself appealing, with increasing nervousness and ever fewer conditions, for accession to the Federal Germansystem. Germanunificationwas thus no joint ventureby equal partners.From this flow two unusual features of the 'post-communisttransition'in Germany. First and most important,an efficient administrative and legal system was available from the moment of unification.Whereaselsewhere post-communistinstitutionshave had to be built up from scratch, in societies often inexperiencedin law, democracy and 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'sunusualfocus. Energiesthat elsewhere were expended on institutionbuilding could here be directed towards an accounting with the past, a task (it was widely felt) that had been mishandled after the Third Reich. Despite the East Germanregime's illegitimacy, almost everyone with administrative and managerialskills had been associatedwith it. The ruling Socialist Unity Party (SED) had included every fifth employee and every sixth adult in its ranks-and the proportionhad been far higher among white-collaroccupations.Many of the revolutionaries of 1989 were ex-communists, some still in search of a purified 'socialism'. The Eastern Christian Democrats who led the 1990 government had a record of cooperation with, indeed subservience to, the SED. Thus, whilst the public mood had long been bitterly hostile to the regime in general, and to some of its specific policies (like the Berlin Wall, the shootings along it and pervasive political police

THE GERMAN STASI RECORDS

307

surveillance), it would be wrong to infer a personal hostility towards communists from this. On the West German side, memories of the Nuremberg trials and of denazification,the ban on retroactivepunishmentin the Basic Law (Article 103 (2)), indeed the whole elaboratestructureof the Rechtsstaatof which Federal Germanyis so proud-all set limits on what could be done with the old regime. It was extremely difficult to use the methods of law against communists as a class or against actions and policies which had been 'legal' in the GDR. For both these reasons the pressure in the new Ldnder was less for revenge than for personal clarification(Aufkliirung) of the hidden forces that had blightedpeople's lives for so long. People wanted above all simply to find out, and thereby to regain some sense of personal control 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 To initiateprosecutionof a limited numberof people for orderingor committing common to the state-sponsoredcrimes. They were to be tried under paragraphs penal codes of the Federal Republic and the GDR; where interpretationor penalties differed, the milder of the two codes was to prevail. In October 1996 the Federal ConstitutionalCourt rejected claims that convictions in such cases amountedto retroactivejustice.6 acts of the (ii) To quash a wide range of political court sentences and administrative GDR, and to rehabilitateand compensate their victims.7 (iii) Beyond the small group prosecuted, to encourage the exclusion from public service of figuresfrom the old regime on three grounds:8 lack of qualificationsor offences againstinternationally personalunsuitability; recognisedhumanor legal rights, where these offences made employment unreasonableto the employer; and-subject to the same proviso-acting in any form for the GDR Ministry of State Security. Such disqualificationsare not considered retroactivejustice, as the Basic Law's ban applies only to punishmentsunder the Penal Code; but employers' decisions are justiciable before the LabourCourts (Arbeitsgerichte). (iv) Otherwiseto ignore SED membershipand service in the GDR state bureaucracy; of themselves these were not to be grounds for discrimination.9 (i) For all these purposes vital evidence lay in the massive archives of the Ministry of to 'Stasi'), and these recordswere what East Germanshad State Security (abbreviated most in mind when they pressed for the opportunityof personal clarification.For many people, therefore,access to the Stasi archives was the urgent prerequisiteto a reckoningwith the GDR past. But for others the decision to open the recordswas not so clear cut.

The Stasi records and their problem

The Ministryof State Securityhad a full-time staff of some 90 000, and was assisted by a furthergroup of 'unofficial collaborators'estimated at 170 000-making Stasi personnelin total about a quarterof a million or 2% of the adultpopulation.Full-time staff and unofficials together accumulatedrecords said to cover between 180 and

308

JOHN MILLER

200 km of shelving and to include reportson six million persons (comparethis figure with the 16 million population and 12.5 million adults of the GDR!).'1 Most of the materialwas in hard copy-paper, film, microfiche, tapes; computerisedindexes had been installed, but little primarymaterialseems to have been stored electronically.In 1995, after five years of processing, some 20% of the material had yet to be scrutinisedby Federal archivists,'1and access under the present Law is confined to those records which have been processed. The records are not complete. Whilst most provincial Stasi centres were occupied were not taken over until by citizens in early December 1989, its Berlin headquarters mid-January 1990, and between then and June 1990 unsupervised (sometimes unidentified)Stasi personnel continued to be employed in the winding down of its operations.In this period some records were destroyed, sanitised or tamperedwith; others were removed and often remain in private hands or are offered for sale; still others came by obscure means into the possession of Federal German security services. The records most affected by these vicissitudes would seem to be those on persons in a position to gain access to them in early 1990, those on public figures of the late 1980s, and those on the Stasi's foreign (including West German)operations. In February 1990 the Modrow regime allowed the destruction of the electronic indexes, making subsequent searches much more difficult.'2 Nevertheless-a point thatwas laterto assume importance-those now in charge of the recordsare confident of their ability to reconstructand interpretthem and to detect falsifications.13 What was the problemposed by these records?The FederalMinisterof the Interior says he toyed with the idea of destroying the lot, sight unseen-and his was not an isolated voice. Much of the informationwas deeply painful and potentially threatening to citizens; much of it had been collected illegally and could never be legally used; some of it might be false-tampered with, the productof malice, or merely of 'plan fulfilment'; why not put the whole damnosa hereditas beyond temptation,and guaranteethat its secrets stayed secret? But destructionor sealing off would involve serious difficulties. There was so much here of vital importanceto legal cases, to the in the new compensationof victims, to the constructionof competent administration Ldnder,to research and public education-and above all to that process of personal clarification(Aufkldrung). The dispersal of some of the files and the black marketin them strengthenedthe argumentfor controlledpublic access to the rest: there had to be trustworthy means of confirmingor refuting speculation,myth making, leaks and
smears.14

Federal Germanjurisprudenceon privacy added anothercomplication.On the one hand a far-reaching judgement of the ConstitutionalCourt in 1983 had established a of in relationto the state. Individuals 'informational self-determination' personalright had the right to know who was collecting, keeping and using what informationabout them and for what purposes; subject to public interest and the rights of other individuals,a breach of these rights was 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' than 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

THE GERMAN STASI RECORDS

309

involved suggests the balance that such a regulation must try to achieve: personal rightsboth of access and privacyhad to be securedfor individuals,and these personal rights had to be weighed against a public interest in the use of the files for other purposesarising from the collapse of the GDR-prosecution of state crimes, compensation of their victims, administrativereconstruction 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 Germany's Central European neighbours. Legislative attempts at 'lustration'-the exclusion from responsible posts of communist and political police officials-came to nothing in Poland and Hungary,in the latterstruckdown by the ConstitutionalCourt, in the former rejected by the Sejm, after a period in which politicians had sought to make capital out of their access to the files.16In both these countriespolitical police surveillancehad been less pervasive, 'decommunisation'had begun in practice long before 1989, and the ousting of the communist regime had been to some extent a negotiatedone. In Czechoslovakia,by contrast,the old regime had clung to power to the end and its political police network had been on a scale comparablewith the Stasi's; here a controversiallustrationlaw was passed in October 1991, two features of which should be singled out.17 Assessments are conducted by 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 collaboratorsthere was initially no appeal. Second, the process was vitiated from a legal point of view when lists of collaborators(partly inaccurate)were leaked and published in May 1992. Not all of this was known during the German debate of 1991, but enough signs could be read. They seem to have suggested three lessons. First, since the temptation would be strong for politicians in power to use the files for tactical purposes if they had access, management and work on the files should be removed from the to an independentinstitution.To protect the governmentof the day and transferred of of the victims and legal rights alleged collaborators,the institutionshould privacy work with the maximum of confidentiality.And if wildcat and vigilante operations were 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 emerged on 20 December 1991 was the Law on the Documents of the State abbreviated to StUG). Security Service of the FormerGDR (Stasi-Unterlagen-Gesetz, When it came into force on 29 December 1991 it replaced a number of 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 three mainstream partiesin the Bundestag,the CDU/CSU, the SPD and the FDP. Not unexpectedly, the PDS, the successor party to the SED,

310

JOHN MILLER

opposed the Law on many counts. The Greens also voted against it, principally because the Law set up central rather than federalised management of the Stasi records;in most other respects their proposals were similar to the successful Law.19 Several minor amendmentswere passed in 1994, and more significant ones in late
1996.20

The Law puts the Stasi records in the charge of a Federal Commissioner(Bundesbeauftragter)for the Documents of the State Security Service of the FormerGDR, an independentofficial elected by the Bundestagfor a five-year term, and removablefor reasons, and by procedures,similar to the dismissal of judges.21The first (and so far only) Commissioneris JoachimGauck, a Protestantpastorfrom Rostock, after whom the Federal Commission has come to be called the 'Gauck Authority'.Gauck played a leading role in the East Germancivil rights movement, was placed in charge of the Stasi central archives by the Volkskammerin August 1990, and confirmed in that He is one of the few figuresfrom position by the Federalgovernmenton unification.22 the 1989 revolution to be successful in post-unificationpolitics.
Purposes (?1)

The Law's purposes are set out in its first paragraph: (i) To allow the individualaccess to informationstored by the Stasi about himself, so that he can clarify the influence of the Stasi on his personal fate; (ii) To protectthe individualfrom impairmentof personalrights arising from use of informationstored by the Stasi about himself; (iii) To ensure and promotehistorical,political and legal analysis of the activities of the Stasi; (iv) To put at the disposal of public and privateinstitutionsthe informationrequired for the purposes specified in this Law.

Purposes (i) and (ii) lie in the field of personal rights, while (iii) and (iv) are public interest purposes. In general one would expect an element of conflict among such purposes, and legislation of this kind anywhere must adjudicateamong conflicting claims, especially between personal rights and public interest. Thus the conflict between the privacy purpose (ii) and the public interest purposes (iii) and (iv) is a familiar one for law in developed societies. Not so familiar perhaps is the role of purpose (i), which I shall call the Law's clarification or Aufkldrungpurpose, and which (to judge from its position) has a certain priority. It seeks to vindicate the personalrights of 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. Something should be emphasisedhere. Many acts of Stasi agents were criminal, and purpose (iv) includes the gatheringof evidence for their prosecution.But some were not: it was not illegal to pass on the damaging gossip that went into many of the records.23 Nevertheless, says this Law, there is a public interest in purpose (i), the Aufkldrungpurpose, and before that public interest some personal rights of Stasi agents, irrespective of their conduct, must give way. It is the most innovative and controversialaspect of the Law.

THE GERMAN STASI RECORDS

Definitions and classification of persons (?6)

311

Where possible, the Law derives its basic concepts from the Federal legislation on archives and privacy:24the distinctions, for instance, between personal and nonpersonalinformation,between the rights of ordinarycitizens and of public figures, or the notion of 'anonymising' a record entry. But in many respects this is pioneering legislation and its draftershad to develop their own definitions and categories. This is particularly the case with the classification(Einstufung)of the persons named in the records, somethingcentralto the Law. As the records are processed, persons referred to in them are to be fitted into one of four main categories: (i) 'Affected persons' (Betroffene,?6 (3)): an affected person is anyone who was the target of a deliberateinformation-gathering project by the Stasi, unless the was the of its own purpose monitoring personnel under (ii) or (iii) below. For a person to count as 'affected' we should picture a directive or the equivalent being issued to open a file on him or her. (Where such directives were kept, they now serve as useful aids in the location of records.) 'Collaborators'(Mitarbeiter, ?6 (4)): collaboratorsare 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 Informationen

(ii)

bereiterkliirthaben'). The latter definition of informeror 'unofficial collaborator' is thus couched in terms of documentedintent, ratherthan of the fact of supplying information.The Stasi kept registers of its informers and as a rule sought undertakingsfrom them, usually in writing, of readiness to supply information25-and the fact that such undertakingswere kept on file is crucial to the working of the Law. But there were exceptions to this rule, and some commentatorsthink the definition in terms of intent is unduly restrictive and serves to protect people who should be treatedas collaborators.The Law itself shows marksof this controversy.In one specific context (?13 (5)) it introduces the notion of delators or denouncers(Denunziante);these are not defined, but the notion suggests a definitionin terms of fact ratherthan intent. These issues will be discussed below. (iii) 'Advantaged persons' (Begiinstigte, ?6 (6)): those who received substantial advantagesfrom the Stasi, typically in the form of materialor career advancement, 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). Important among 'thirdparties' are persons aboutwhom informationis on file, but without them having been the object of a deliberateinformation-gathering exercise as in the information was to another above; exercise, or (i) gathered incidentally or to be third But for information about a casually speculatively. party it must have been collected with a view to use; the waiter who appearsin a filmed pub or the bartender who hires out the room, are not thirdparties;nor, interrogation, unless they fit one of the earlierdefinitions,are public figures mentionedin the
files.27

These four categories resolve themselves for the greater part of the Law into two

312

JOHN MILLER

broaderones. In general (i) and (iv), affected persons and thirdparties, are bracketed together and have similar rights, and it will be convenient to use the shorthand So too collaboratorsand advantagedpersons are 'victims' for these two categories.28 treated similarly and have similar rights under the Law. Before personal information in the files may be used outside the Authority, the persons referredto in them (those who have rights under the Law) must be allocated to one of these four categories. And it makes a considerable difference in which of them a person is placed. It is extraordinarily responsible work. Many files have been interfered with and must be reconstructed. Most collaborators are referred to by cover-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 apparent that many persons must fit into more than one category: the affected person of one file will be the third party in another; many advantaged persons may also have been collaborators;the same person may have been an affected person and a collaborator at different times or even simultaneously. The Law's ruling, therefore, is that persons are to be categorised separately for 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 undertaking to collaborate; but it is the role played by a person in the particular context that determineshow he or she is classified for that case. One may be an affected person, entitled to an affected person's rights, in one context, and a collaborator, with considerably fewer 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 put
on file' ('mit welcher Zielrichtung die Informationen in die Unterlagen aufgenom-

men worden sind', ?6 (8))-and, it should be noted immediately, the 'purpose' here was that of the Stasi. Thus the Authority's classification of persons as collaborators amounts to a claim, not that they were collaborators,but that the Ministry of State Security treated them as such.29Second, the Authority is allowed to work 'according to archival principles' only.30 Its job is thus the location, compilation and exposition of Stasi purposes insofar as they can be documented plainly from the files; it is not the imposition of political, judicial or even (one is sometimes tempted to think) scholarly interpretationon them. The precise boundary between work on archival principles and interpretation seems not to have been fully clarified. Research-informed interpretation of Stasi 'structure, methods and practices' is allowed for purposes of public education, and this may extend to certain, very limited, types of public comment about persons.31 But it is not clear whether the Authority-in the reconstructionof shredded documents, 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 Authority will be taken up below. It is clear from this that Gauck Authorityclassifications are not meant to be acts of judgement, and that the Authority is not meant to exercise judicial functions. But-one cannot refrain from adding-the Law's provisions for this crucial matter are 'buried' in two very inconspicuousphrases. Thousandsof ordinarypeople (even some lawyers) who sought to use it plainly did not grasp their significance.32

THE GERMAN STASI RECORDS

Principles of access (??3-5)

313

Against the backgroundof these definitions,the Law offers five general principlesof 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, depending on the role he or she plays in them (??3, 12-18, 42). Circumstancesallowing identification of the particularcase should be cited in an application,but otherwise no reason need be given for it-the fact of being named constitutes a legitimate interest in access. Priorityin processing is given to applicationsneeded for legal cases, by those formerlyimprisonedby the GDR or confinedto its psychiatricinstitutions, or by the terminallyill (?12 (3)). Where records contain personal information about victims other than the applicant, such informationmust be blanked out ('anonymised') in the copies shown and suppliedto the applicant-unless all othervictims agree to its release, or the informationis trivial (?12 (4)). After a stipulated period victims may apply to have information concerning themselves deleted from the original records (?14). 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 legitimate interest in the information,where that interestis one sanctionedby this Law, and provided they use the informationonly for the purpose cited in the application,and not as they see fit. Unlike the Federal Archives Act, StUG imposes no '30-year rule'-but neither does it countenancefishing expeditions. With an importantexception, personal informationabout victims may not be used to those victims' detriment(?5 (1)).
Access to records and use of their contents

(ii)

(iii) (iv)

(v)

By early 1996 more than three million applicationsto see files had been submitted, more than a thirdof them for access to the applicant'sown files; of this lattercategory about half of the applicants found that the Stasi kept a file on them. The flow of applications increased in late 1994 and, at the time of writing, shows no sign of The present section examines access to the personal records, the central abating.33 concern of the Law. This may be either access to records about oneself, or access to records about other people, the latter principally for StUG public interest purposes.
Access to personal information about oneself (??12-18)

Affected persons and thirdpartieshave a right to be told what informationconcerning themselves is held in processed Stasi recordsand, on furtherapplication,to sight such records and to receive copies of what they are shown (?13). In what is shown or copied to the applicant personal information about other affected persons or third parties is anonymised,but not names of or references to collaboratorsor advantaged persons;these are disclosed to the applicant(?12 (4-5), ?13 (4)). If the collaborator's

314

JOHN MILLER

(or, in written denunciations,the 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 pseudonymous collaboratorwas aged under 19 at the time when the information was laid, it is thought better to presumediminishedresponsibilityand the real name is to be kept secret (?13 (5-6)).34 Finally, victims may use any informationthey obtain from the Authorityas they see fit, within the law (?3 (2)); in particularthey may confront informerspersonally, or use their knowledge for court actions, or publish it. Two furtherprovisions promotethe privacy of informationabout victims. First, the Authority may transferthe records' contents into electronic form only in order to facilitate location of files or identificationof persons (e.g. by compilation of 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 information concerning themselves anonymised in the original records and to have their names deleted from the Authority's indexes-unless preservation of the information remains imperative for legal or historical reasons (?14). If anonymisingis impossible, the record(e.g. a film) is simply to be destroyed. In the original legislation such applicationswere scheduledto begin in January1997, when the Law had been in force for five years; the amendmentsof 1996 postponed them until 1999, on the grounds that the processing of the archives would not be completed until then. Access to and use of material about themselves by collaboratorsand advantaged persons (??16-17) differ little 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 other collaborators).Second, StUG anticipates a particularreason why collaboratorsmay wish to see records-to document a claim that their collaborationwas less than alleged: in such cases the Authoritywill answer the initial applicationwith a summaryof the applicant's activity for the Stasi-how frequently he or she submitted reports, about what sort of people etc. Third, collaboratorsmay have access to reportsthey themselves prepared-they may refresh their memory in fact-if they can satisfy the Authoritythat they have a legal interest in this and one which outweighs the interest of victims in privacy; a case in point might be an attemptto disprove an accusation of denunciation.35 Finally, where information in the records is challenged or proved incorrect, the recordsmust be so annotatedand previousrecipientsof incorrectinformationmust be notified of this (?4 (2-3)); but the Law makes no otherprovision for notifying people that they have been classified by the Authority,nor does it offer them an opportunity to state their case, nor remedies for incorrectclassification.
Access to personal information about other persons (??19-34)

Access to the records, including access to personal informationabout other persons, may be sought by public and private organisationsin their formal capacity, and also by the media and researchers.It will be useful to consider these two groups of user together, but to treat the case of intelligence services separately. A common set of groundrules applies to use of the records by public and private

THE GERMAN STASI RECORDS

315

organisations(??19, 29). They may use the recordsonly for purposes specified in the Law, and nobody-including the judiciary,the police and the Authorityitself36-may initiate speculative searches for potentially useful material. Applicants must satisfy the Authoritythat their purpose is one permittedby this Law, that it falls within the formal competence of the applicant, and that use will be confined to that purpose. Thus employers may inquire whether their managerialemployees have a history of Stasi collaboration-but they may not inquire about the rest of the workforce, nor about past employees, nor about court convictions among their managers. Such inquiries may be instituted by the directors, but not by the elected works council (Betriebsrat).If an employer decides after inquiry to employ a former Stasi worker (not uncommon in the police forces) it may not use this information for other purposes, for instance, to justify withholding promotion.37 Any public or private organisation (but the provisions are aimed particularlyat courts and state prosecutors)may apply for a general search to be made for evidence towards cases of specified types: examples are rehabilitationand compensation of victims of the GDR state, unresolvedinquests,disputes aboutpropertyownership,and defence of personal rights (??20-21 (1) nos 1-5). The same proceduremay be used for criminalinvestigations(where chargeshave been laid), but for most criminalcases the search must be confined to non-personalfiles and files concerning collaborators and advantagedpersons (?23 (2)). Only in the case of state-sponsoredcrimes or especially serious crimes (eg murder,arson, kidnapping,hijacking, drug trafficking) may the search be extended to the personal records of victims, and in these cases alone personal information may be used against the interests of the victims (e.g. disclosed in court); the importance of these prosecutions is held to outweigh the encroachmenton personal rights (?23 (1)). Checks by employers (??19, 20-21 (1) nos 6-7) have formed the largest category, almost 60% of applications. An employer, whether state, private organisation or business, may ask for checks on specified senior employees (or applicantsfor such posts) to enable it to decide whetherthey were Stasi workersor collaborators.If they were, if this makes them unsuitablefor the job in question,and if they were aged over 18 at the time, that is a legitimate ground for dismissal, as laid down in the UnificationTreaty.Also derived from the Treatyis the criterionused at this point: it is activity (Tdtigkeit)for the Stasi, ratherthan preparednessto supply information. The list of posts whose incumbentsmay be checked includes ministers,parliamentarians, public servants,local councillors,judges and solicitors, directorsand managers, office bearersof political partiesand churches,andjobs requiringsecurityclearance.38 The search must be conducted with the knowledge or consent of the person and must be directedinitially to the non-personalfiles; only if that fails investigated,39 to clarify the issue may resort be had to personal files. The checks may continue for 15 years (until December 2006), after which the fact of Stasi collaborationmay not be used to a person's detriment.40 The Law spells out carefully that the Authoritymakes no judgements and plays no judicial role in employment checks. Its duty is to issue employers with notifications (Mitteilungen)-statements of the evidence that the Stasi did or did not view someone as a collaborator;they are compiled on archival principles and have no legal force. On this basis employers have to make their own employment decisions, subject to

316

JOHN MILLER

labour law, as modified in this case by the Unification Treaty. If a notificationdoes not resolve a case, the employer may (and is urged to) seek clarification through access to the files. Litigationhas made it clear thatprinciplesof natural justice apply: each case must be decided separately and the burden of proof lies with the Figures for the proportionof notificationsthat allege collaborationrange, employer.41 for differentprofessions,from four to 22%;it is claimed that up to 30% of these result in dismissals. This might suggest dismissals of the order of perhaps 60-100 000 by 1996. 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 governing access to other people's files. The tension of balancingpersonalrights againstpublic interestemerges with particular 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 minute after a hostile media campaign.43 Researchersand journalists have access to three types of record. These are, first, records that contain no personal information, and copies that have been completely anonymised.Any personalfile, second, may be seen with the written permission of its subjects. Third and most important,personal records may be used without prior permission where they concern collaboratorsand advantagedpersons, or public figures and office bearersinsofar as these latter are not victims; but the Authority may withhold records which disclose private or intimate details unconnected with the person's role in the files. Thus the fact of Stasi collaboration or one's activities as an official are not protected, but one's sexual preferences are.44 Similar rules govern publication of personal informationfrom 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. Verbatim publication of personal information about 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.45 One major category of use of other people's files remains:
The Stasi records and security services (?25)

The Stasi had been engaged not just in domestic surveillance but in espionage, and subversiondirectedat foreign countries;in particular the GDR counter-espionage had poured massive resources into its intense struggle with the Federal Republic. It is not surprisingtherefore that the Stasi archives should include classified material about and from other states including their security services, nor that the latter should have shown strong interest in 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 On the other hand there was strong feeling in security agencies before unification.46

THE GERMAN STASI RECORDS

317

the former GDR, especially among the 1989 revolutionaries,that the Stasi records should never again be used by or for intelligence purposes, and the FederalRepublic had undertaken (in an addendumto the UnificationTreaty)to respect this principle.47 The conflict between public interestand protectionof personal rights was at its most acute here. Where documents of Federal German institutions above a certain security classification 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 they must be stored separately and not used except with ministerial permission. Restricted 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 agents of 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 particular security risk may be taken over by the Minister.48Where, on the other hand, intelligence services of the Federation hold Stasi records about affected persons, these must be handed over in full, without prompting or copying, to the Authority (?8 (1), (3)). Under ?25 the Authority is charged not to let any record containing personal information 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 intelligence service of Federal Germany or one of its military allies,49 and the information is needed to protect that person or service, records may be disclosed insofar as they contain 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 informationis 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 other hand, are accessible to German and allied intelligence services if they contain information relating to espionage, counter-espionage,violent extremism or terrorism;here too use must be confined to the specified purposes. Finally, non-personal files are freely accessible to security services. It is evident that the legislature did not keep fully to the undertakingto deny intelligence services access to the files. But Stasi files on agents of other security services posed a problem of substantialpublic interest which (for whatever reason) was not identified in the undertaking.Its resolution seems a sensible and consistent one.51 Critical analysis The analysis so far has revealed a through and coherent attemptto balance privacy againstpublic interest.But the Law has had its critics also, and some of this criticism has not been allayed with time.

318 The definition of collaboration

JOHN MILLER

it limits their access to StUG restrictsthe rights of Stasi employees and collaborators: certainjobs and it provides for the disclosure of their identity to victims. This was innovative aspect of the Law, but clearly the legislature's intentionand a particularly a that it tested the Rechtsstaatto there was unease about it and sense equally clearly its limits.52This promptsseveral questions. What exactly was it about Stasi collaboration that, in the minds of its authors, warrantedthese restrictions?Can the Law achieve their objectives efficiently? How does it stand in regardto the Rechtsstaat? In his article on the use of correctivejustice against erstwhile communistregimes, Offe distinguishes the three aims, disqualification,retributionand restitution. It is clear that the primarypurposeof this Law lies in the first field, that of disqualification (althoughit also contains measures for the supply of evidence for criminal prosecuact designed to deprive tions and compensationclaims); StUG is a 'legally-mandated
categories of perpetrators ... of ... material possessions and civil status'.53 Purpose

of (iv) of StUG (see above) includes the provision of evidence for the disqualification Stasi collaboratorsfrom certain types of employment. Purpose (i), it is held, cannot be realised without the disclosure of collaborators'names, which disqualifies them from privacy rights enjoyed by other citizens. Disqualificationis clearly not a penalty for particularacts that collaboratorsmay have committed:not all of these were culpable in law, and those that were could be dealt with under it. Their fault was not secret informing,which private detectives do as well. Nor was it membershipof or association with an institutionthat trampledon personal rights: that applies equally to the SED.54I think ratherthat the peculiarly blameworthy feature of Stasi collaboration should be sought in a combination of these: in a secret and, to the public, deceptive relationshipbetween collaboratorsand Several features of StUG become clearer if we see secret an oppressive institution.55 relationships as its target. This is why the definition in terms of intent is so important-a secret relationshiphas to be a voluntaryone. It is why Stasi associates and not, for example, SED members are the subject of this special legislation. And it is why advantaged persons, another group whose actions were not necessarily culpable, are usually bracketedwith collaborators.For Gauck such secret relationof the SED. ships did more damage to public trust than the open authoritarianism Hence Aufkliirungwas for him more thanjust a need of private individuals-it was a projectto help restoretrustin public life throughthe systematicdisclosure of secret roles played in the GDR.56It called not just for the assertion of victims' rights but for the public disclosure of collaborators.There is a public interest, he claims, in rebuildingpolitical confidence in the new Ldnder, and it requires these disclosures. The decision is, he admits, ultimately a political one, and hence it is importantthat he persuadedmost of the Bundestag.s57 How effective is the Law's definition of these secret relationships?Its success is impaired, to my mind, by an ambiguity in the definition of unofficial collaboration58-one which was always present but which was exacerbated by changes at the bill's committee stage in 1991. In the original draft unofficial collaborators were defined as those (a) who had declared their readiness to supply information to the Stasi or (b) who 'had otherwise collaborated with it beyond the call

THE GERMAN STASI RECORDS

319

of official duty'; the latter clause (with its focus on actions ratherthan intent) was then deleted because of the difficulty of defining official duties in the GDR system.59 In general, therefore, and in particularwhere disclosure of identity may result, the Law's definition of unofficial collaboratorsis that of ?6 (4): they are persons who 'declaredthemselves ready to supply information',a definitionin terms of intent. But for purposes of employment checks the Authority is asked to determine whether someone was 'active for' the Stasi. Two different criteriaof collaborationmay thus be drawn from different parts of the Law, and they seem to imply two different 'sets' of collaborators,largely but not completely overlappingeach other. Includedin one set, but not in the other, could be people whose undertakingsare on file but who cannot be shown to have done anything about them. More important,there 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,courtjudgements and the Bundestaghave reducedthe inconsistencies in treatmentarising from this discrepancy. First, intent to inform may be deduced on circumstantialgrounds from behaviour patterns such as regularly kept Second, in employmentdisputes the courts have insisted on evidence appointments.60 of 'deliberate and voluntary' (bewufltes und gewolltes) collaboration;61 dismissals have been overturnedin cases of unwitting supply of information, or of written undertakingsunaccompaniedby evidence that informing actually took place. These led to the 1996 amendmentsgrantingamnesty in the case of undertakings that did not lead to transmission of information. Nevertheless flaws still remain in the Law's definition of collaboration. The first concerns denunciation, and especially casual denunciation, often by telephone; delators, clearly, need not necessarily have been recruited as unofficial collaborators. The Law refers to denunciationin one place only, in the context of the it then adds right of victims to learn the true names of pseudonymouscollaborators; that the provision 'applies also to other persons who denounced the affected person in writing' (?13 (5-6)). This recognises that delatorsare not identical with unofficial collaborators,but does not tell us how they are to be classified under StUG, in There is a second problem over particularthose who did not denounce in writing.62 the so-called 'social collaborators'(GesellschaftlicheMitarbeiterSicherheitor GMS), persons in prominentpositions in the GDR who assumed that giving informationto the Stasi was part of the job, or were otherwise not made to give undertakings(or 'a handshake might suffice'). We may class here some other informants, among churchmenand the intelligentsia,for instance,from whom the Stasi thoughtit prudent not to extractformal commitments.63 Such people were often smartor well-resourced enough to put nothing in writing-and in early 1990 they often had good opportunities to remove or clean up their files. Despite resortto circumstantial evidence, it may thus be difficult to bring some of the most responsibleand privileged of collaborators to book. Geiger, who worked with the Authority,concedes that it has been easier to apply the Law to petty collaborators.64 Further,in the Law as it was passed, cooperationwith the Stasi in the line of duty was treatedin the same way as any other collaboration;it did not take into account, for instance, that conscripts were drafted into the Stasi.65 Where an NCO

320

JOHN MILLER

reportedto the Stasi about the soldiers in his frontierunit, or a social workerpassed on opinions about youth hooliganism before the Leipzig Fair,66we note the Stasi's tendency to usurp the functions of the army and the ordinarypolice, and we may deplore the informants' confused professional ethics-but they answered questions that tend to get asked in democraciestoo, and it seems harshto equate their conduct with secret work for the Stasi. The definition of 'collaborator'is thus not precise enough: it may still lead to disqualificationof people who from a common sense perspective did not seek secret collaborationor do not deserve penalty, and it may allow some serious collaborators to escape disqualification.
Powers and accountability of the Gauck Authority

We have seen that the Gauck Authorityis essentially a researchbureaucracy and not a judicial institution. Yet it is plain that an incorrect disclosure of someone as a collaborator (following perhaps from an erroneous classification), or an incorrect notificationto an employer, would damage personal rights in a way hard to repair. What rights have individuals and organisationsto challenge the Authority's work or get them reviewed? Whilst the Basic Law (A19 (4)) provides a general recourse to the courts for persons who claim their rights have been damaged by a public authority,the practicalitiesof such recourse in the case of StUG are rathercomplex. Pride of place in German administrativelaw has classically been given to the the official 'act of administration'which has a direct effect on the Verwaltungsakt, acts in this formal sense must be communirecipient's legal position; administrative cated to those they affect, opportunityfor hearing must be given, and they are open to specific forms of legal challenge which can lead to their revocation.67 Rejection by the GauckAuthorityof applicationsfor informationor access are administrative acts, and they may be appealed before the AdministrativeCourt of Land Berlin.68But it is clear that officials in general do a good many things that are not Verwaltungsakte, and two important tasks 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 think they are cases of a a residual cate'simple administrativeprocedure' (schlichtes Verwaltungshandeln), gory of official actions which are not meant to have direct legal consequences; it includes the internalprocessing of documents within a state organisation.A 'simple administrativeprocedure' carries no entitlement to a hearing, and legal recourse against it is limited to actions to stop the procedureor for compensationor damages for its effects.69This interpretation of the Authority'sclassificationsand notifications is suggested by the restriction of its documentary work to the use of archival principles,by the limited scope of its obligationswhen files are shown to be incorrect, and by the care taken to place the legal onus for dismissals on employers, not on the Authority.It is confirmedby phrases used in legal judgements.70 Recourse against the Authority's most important 'decisions' is thus not easybecause in law it does not make decisions, it compiles and presentsevidence to other people. This has its positive side. Responsibilityfor what is done about this evidence

THE GERMAN STASI RECORDS

321

by a reader-victimor employer rests squarelywith that individual, not with lawyers or bureaucrats. Victims are free to use knowledge disclosed to them about collaborators as they choose, provided they stay within the law; employers are free to hire or fire, within labour law. Their choices are not ordainedfrom above nor subject 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 determined in detail by the state-is to treat them as adults and citizens, and this can only be conducive to morale. And this impact would seem to be confirmedby the increasingnumberof applicationsfor file access and by survey In its small way it is an example of that empowermentthat so many hoped evidence.71 for from post-communistregimes, and in which many feel disappointed.It 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 disadvantage of course. The lack of provision for hearing of the Authority's documentarywork, its apparentsheltering behind executive privilege, prompted sustained criticism, not just from 'the left' but from lawyers.72And they seem to have had a point, because the Authority'spowers were widely misinterpreted by its clients. It was all very well for labourlaw to stipulatecase-by-case procedures for dismissals, with the onus of proof on employers; such legal niceties seem to have been widely misunderstoodor ignored in practice, and many employers appear to have treated Authority notifications as legally binding verdicts or 'certificates' of (It will be recalled that such certificates are used in the Czech collaboration.73 a and Republic, comparisonwith the early stages of denazificationmust also have occurred to many people.) And such responses from employers in the new Linder were hardly surprising.The economy had collapsed, there were hundredsof thousands of cases to be processed, and few employers were familiar with the new legal principlesor could afford legal expenses. Gauck Authoritynotificationsoffered them a convenient rule of thumb, and they seemed to reverse the burdenof proof back to the employee. This has opened the way to perceptionsof collective justice, of holding 'all membersof a group ... automaticallyliable' and thus placing them in an unequal position before the law.74 It has also prompteda flood of litigationfor wrongfuldismissal-often mountedby resourceful and energetic professionals (professors, lawyers) with much to lose. A number of these challenges have been successful, and the courts have often been robust in their treatmentof Authorityevidence. A 'simple administrative procedure' performed'on archivalprinciples' may be privileged, but by the same token it loses much of its independentevidential force. Three tendencies may be observed in these judgements:75 (i) 'Activity for the Stasi' is interpretedto mean a deliberateand sustainedpattern of collaboration,directedagainstfellow citizens. The formersoldier who thought he had been dealing with militarycounter-espionage(and whose informinghad been confined to army service) has been mentionedabove; anotherwas exonerated when he showed he had worked only in monitoringWest Germancommunications; a third person had wound down his Stasi contacts after the Prague Spring and his dismissal was overturned.76

322

JOHN MILLER

(ii) The courtshave been reluctantto endorse dismissals if the only evidence is Stasi documents-material acquiredillegally by an organisationutterlyhostile to law. They have looked instead for independentcorroborationsuch as witnesses or If the only evidence is empty files materialin the alleged informer'shandwriting. the informer's the latter has sometimes been reinstated(though name, bearing the files might have been emptied deliberately by the plaintiff or his case officer). Written statementsof preparednessto inform have been discounted if there was no evidence that informing actually took place. In one case the court accepted evidence that such an undertakingwas not in the plaintiff's handwriting.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 rather bruising court encounters Gauckcommentedruefully that his staff were torn between 'on the one hand (as called for by the Law), a description of file contents that takes account of established Stasi rules, and, on the other hand, evaluative commentary not
foreseen by the Law'.79

Nevertheless the social standing and the psychological and financial resources of many of these plaintiffs should be stressed. A differentpicture, by contrast,emerges from the 'Gauck victims' interviewed in Karau & Vetter's collection: typically in petty white-collar jobs (social workers, school teachers, clerks), they appear as depressed and bewildered people with little sense of the difference between law and state power.80In some quarterstherefore the employment provisions of StUG are likely to have strengthenedperceptions of collective justice and of victors' and rich men's justice. This must have been a blow to Gauck's dreamof strengthening public confidence in 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 redress in the courts-if not for violation of personal rights (since a simple administrativeprocedure does not formally affect rights), then by means of an injunction against the Authority. There seem to have been surprisinglyfew such cases-a sprinklingof injunction claims, and the AuthWe may attribute ority admits to a case of mistakenidentificationof a collaborator.81 this (as does Gauck) to the high calibre of his staff and the safeguards around disclosure of identities-but we cannot escape the suspicion that the Authority's proceduresthemselves look obscure and dauntingto many people. There is a second major line of criticism of the Authority's bureaucratic powers. 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,the courtstake this seriously. But Stasi case officers had strong incentives not to documentexactly how they gained cooperation. And they had strong incentives to fulfil their work norms83or to present innocent

THE GERMAN STASI RECORDS

323

contacts to their superiorsas collaboration.To problems such as these, documentary work simply cannot give a satisfactoryanswer. This has led to calls for the building of motive into a more nuanced definition of collaboration.84 The dilemma is dramatisedby the case of ManfredStolpe, for many years before 1989 head of the ManagementBoard (Konsistorium)of the Evangelical Church of and Chief Secretaryof the GDR Union of Evangelical Churches; Berlin-Brandenburg since 1990 he has been Premierof Land Brandenburg. In early 1992 he published an account of his long-term contacts and negotiations with the Stasi, in pursuance,he claims, of a commission from his Church;yet the Gauck Authority argued that its records of the informercodenamed 'Sekretar'are records of Stolpe and show him to have been an importantcollaborator.Stolpe won an injunctionin 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 Brandenburg Landtagfound (on party lines) that Stolpe had maintained 'deliberateand voluntary' contacts with the Stasi and had been registered as an unofficial collaborator;but it could not be and he had not pursuedobjectives prescribed proven that he had given undertakings, the nor that his Church. The litigation continues.85Two final Stasi, by damaged on this tortuous case: it is that even judicial methods can convince thoughts unlikely 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 Manfred Stolpe, re-elected with an increased majorityin 1994. Possible alternatives? Could these problems have been avoided? Assuming, as seems likely, that public opinion would have insisted on some measures of disqualificationfor collaborators, the principle considered in Hungary is attractive:once a prima facie case has been established, offer the collaboratora private choice between voluntaryresignationor the chance of future disclosure. This has the merit of increasingthe role of personal responsibilityand avoiding perceptionsof collective justice. But it does not disclose collaborators'identities to victims, and this, as we have seen, was at the heart of Gauck's project. Could that objective have been retained but subjected to judicial process? If everyone who had been 'adversely' classified by the Authorityhad been notified and offered the opportunityof a public hearing, this would have jeopardised victims' 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 lawyer outside the Authoritywith the appropriate experience;such an official would not have found it easy to maintainindependenceof the Authority. Yet something along these lines should perhapshave been tried. Given the records' prejudicedorigins and later interferencewith them, there could be more cases (like the Stolpe one) open to conflicting interpretation. The 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 administrative procedure' done on 'archivalprinciples'.86

324

JOHN MILLER

The alternativeof amnesty was supportedby many public figures87 and broached in the of the features of amendments that year are 1996; by Bundestag particular for amnesties collaboration that had of the end for collabo1975, partial stopped by ration duringconscription,and for the signing of undertakingswhich did not lead to But by 1996 much of the damage had arguably been the supply of information.88 done.
Conclusions

Why attemptcorrectivejustice in the firstplace? Why-with Mandela's South Africa in mind-have we heard no hint of 'reconciliation' between the two German 'systems' formerlyin conflict? For two reasons, I think. First, the cases of politically organised reconciliation that have come closest to success seem to be those that emerge from hard-woncompromisein which the defeated are defeated, yes, but still hold considerable resources; they allow, for instance, leaders like Pinochet or de Klerk 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 connection nowadays in the way that officer families in Latin America may still try to defend military 'honour'. Second, we may underestimatethe legalistic element in Council that draftedthe post-war West Germanpolitical culture. The Parliamentary GermanBasic Law in 1948-49 was overshadowedpsychologically by the experience of Weimarand the ThirdReich-and it wrote a Constitutionas proof as possible not only against hijacking but also against populism and 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 of unificationwould be addressedby legal methods. Given this approach,how should we evaluate the Stasi Records Law? And what, if anything,does the case suggest aboutthe place of correctivejustice in post-communist transitions,and about means of promoting a legal culture? First, the Law's provisions for victims' personalAufkldrungwould seem to be its most attractivefeature.Direct sociological evidence is sparse, but, if my estimates in this article are reasonable, perhaps half a million persons have read their Stasi file-compared with at most a fifth of that numberwho have incurreddisqualification in employment.In the case of the formergroup one can readily imagine that this will have strengthenedtheir confidence in public affairs-albeit against a backgroundin which many other provisions of unification-concerning property ownership, restitution and privatisation-worked in the opposite direction.By contrast,the provisions in employment-though greatly superiorto the Czech approachfor disqualification were still too readily misunderstoodand misused by employers, with consequent damage to the Authority's reputationand the rule of law. And the means by which Authorityproceduresare shielded from scrutinyand challenge are surely too sophisticated. They may be constitutionallyunimpeachable,but from ordinaryperspectives the Authoritydoes take importantdecisions affecting people's lives, and to deny this sounds like casuistry and paternalism. Second, what does the study add to our understandingof corrective justice? It

THE GERMAN STASI RECORDS

325

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 judges and 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.91 It is a bleak conclusion: the best chances for law, as for democracy and the market, are in those places that already have 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 bring people 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 ways of fostering such experience, as well as of some temptations better avoided. La Trobe University Quotationsfrom Wolfgang Schiuble, Der Vertrag:Wie ich liber die deutsche Einheit 20 April 1990, p. 5. I shouldlike to verhandelte 1991) p. 273, and Neues Deutschland, (Stuttgart, kind assistancein the preparation of this articlefrom MartinChanock,Ross Martin, acknowledge JamesMcAdams,RudolfPlehwe, KlausRichter,J6rg Schadtand SpencerZifcak. For recent critiques of correctivejustice see Bruce Ackerman,The Future of Liberal Revolution(Yale UniversityPress, 1992) especially pp. 69-98, and Claus Offe, 'Disqualification, Restitution:Dilemmas of Justice in Post-Communist Retribution, Transitions',The Journal of PoliticalPhilosophy, sourcesquotePopeInnocent I in 1414 on leaving 1, 1, 1993,pp. 17-44. German this kind of task to the Judgement of God. The following editionsand/orcommentaries on the Law have been used: Hansj6rg Geiger (ed.), Stasi-Unterlagen-Gesetz 1993);H. Geiger& Heinz Klinghardt, (Nordlingen, Stasi-UnterlagenGesetz mit Erlduterungen fur die Praxis (Koln, 1993); DietmarSchmidt & Erwin D6rr, StasiKommentar und Verwaltung(Koln, 1993); Klaus Unterlagen-Gesetz: fur Betroffene,Wirtschaft Kommentar (Baden-Baden,1992). Valuable also are the Stoltenberg,Stasi-Unterlagen-Gesetz: seminar Winfried Hassemer & KarlStarzacher undStasi-Unterlagen: (eds),Datenschutz proceedings is best oderBewdltigen? Band1, Baden-Baden, Datenschutz, (Forum Verdringen 1993).Stoltenberg on the evolution of the Law and prints the relevantparliamentary debates;Geiger was Deputy Commissioner for the Stasi Recordsat the time he publishedhis works. Erbeder DDR (Reinbek, See in particular JoachimGauck,Die Stasi-Akten: Das unheimliche 1991), pp. 91-92, 96-100, also in Hassemer& Starzacher, p. 21, in 'Dealing with a Stasi Past', Daedalus,123, 1, Winter1994,pp. 278-80, 283, andin Das Parlament, 1996,44-45, p. 17; compare the Bundestagspeechesin Stoltenberg, pp. 357, 400-402, 408-410. See RudolfWassermann, in W. Weidenfeld& K-R. Korte(eds), Handbuch 'Rechtssystem', 'Die Ahndungdes Einheit(Bonn, 1993), pp. 557-565; Friedrich-Christian zur deutschen Schroeder, SED-Unrechts durch den Rechtsstaat',Aus Politik und Zeitgeschichte,1995, 38, pp. 17-29. A thoughtfulsurvey of the issues involved is A. James McAdams,'The HoneckerTrial:The East Past and the German German Future',The Reviewof Politics, 58, 1, Winter1996, pp. 53-80. See the 'Mauerschtitzen' judgementof 24 October1996 (BVerfG,2 BvR 1851, 1853, 1875 and 1852/94).Anotherimportant Constitutional Courtjudgementof 15 May 1995 largelyexcluded fromprosecution GDRcitizenswho hadspiedon the Federal Republic(BVerfG,2 BvL 19/91,2 BvR Courtmaterialsto 1206/91, 1584/91, 2601/93). Here and below, I am indebtedfor Constitutional des Bundesverfassungsgerichts (Internet: Pressemitteilung http://www.jura.uni-sb.de/Entscheidungen/ and to GLAWGerman Case Law (http://www.uni-wuerzburg.de/glaw/ Bundesgerichte/BVerfg/) index.html).

326

JOHN MILLER

This is the purpose of the First and Second Gesetze zur Bereinigung von SED-Unrecht, of 29 October 1992 and 23 June 1994, the first dealing with legal and the second with administrative (including SED) acts; see Bundesgesetzblatt (hereafter BGBI), 1992, Part I, pp. 1814-1821, and 1994, I, pp. 1311-1321. A Versorgungsruhensgesetz withdrew state pensions and benefits awarded by the GDR on political grounds (ibid., 1991, I, p. 1684). See Annexe I to the Einigungsvertrag, chapter XIX, section A III, paragraphs 1 (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, reprinted in 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, 'Seri6se Zahlen 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 before the end of 1998. 12 See Gauck, Akten, pp. 13-15, 76-90, 109, and Geiger & Klinghardt, pp. 7-8. For trade in Stasi documents see Hassemer & Starzacher, pp. 42-43, 52, 58; for the involvement of Federal security, see the partisan collection of Ulla Jelpke, Albrecht Maurer & Helmut Schr6der (eds), Die Eroberung der Akten (Mainz, 1992), pp. 29-32, 47-48, 129-149. For a detailed description of current holdings and their state, see Zweiter Tatigkeitsbericht des 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 in Hassemer & Starzacher, pp. 33-36, 44-47; Neal Ascherson, 'Bum the lot or publish the lot, but the days of secret service files are over', Independent on Sunday, 25 February 1996; Timothy Garton Ash, The File: A Personal History (London, 1997), especially pp. 194-201. 15 This judgement had halted the 1983 Census, largely because of the use the state might be able to make of some of its findings; see Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press, 1989), pp. 332-336; David P Currie, The Constitution 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 of the 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 Controversial Law 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 und Nutzung der personenbezogenen Daten des ehemaligen Ministeriums 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 der BRD 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. 19 For 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 1996 amendments see Deutscher Bundestag-Plenarprotokolle, 98 Sitzung, 18 April 1996, and 136 Sitzung, 8 November 1996 (Internet texts). 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 service conditions 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 was re-elected for a second term in 1995.

THE GERMAN STASI RECORDS

23

327

Otherwise, as Offe (p. 33, n. 39) remarks, private detectives would have been in trouble too. Compare the 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 conditions in mind, but Federal courts found it difficult to apply; see Schroeder, 'Die Ahndung ...', pp. 25-26. 24 In particular the Bundesarchivgesetz of 1988 and the Bundesdatenschutzgesetz of 1990, the latter 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 terrorists who 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 particular rights under this legislation. 8 The main difference between them is that third parties, not having been the targets of deliberate information-gathering exercises, are obliged to provide more detail in their applications about 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 'Wiedervereinigung unter Rechtsgesetzen. Ein Beitrag zur Verfassungskonformitat des Stasi-Unterlagen-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 have been taken to the Constitutional Court. 33 See Zweiter Tdtigkeitsbericht ..., pp. 11, 110-113; Plenarprotokolle, 98 Sitzung; Das Parlament, 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 the competitive 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 into the privatised economy; see Geiger & Klinghardt, p. 100. The amendments of 1996 add the staff of parliaments, parliamentarians and 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 important exception former collaborators may 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-Unterlagen im Arbeitsgerichtsprozel', DtZ, 1994, 5, pp. 162165; A. Stapelfeld, 'Zum aktuellen Stand der Rechtsprechung und zur Praxis des Sonderktindigungsrechtes 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 illegitimate 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

328

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 or Switzerland. 50 Geiger & Klinghardt, p. 121; Schmidt & D6rr, pp. 185-186. 51 Compare 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, 22-23, 27-35. 54 Thus I ampp. 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 apparatus of oppression'. Compare Thomas von Lindheim, 'Zum Begriff der Zusammenarbeit des inoffiziellen und Mitarbeiters mit dem MfS', DtZ, 1993, 12, pp. 358-361. hauptamtlichen 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 draft Hungarian legislation, by contrast, the balance between public interest and personal rights favoured the latter rather more: collaborators were given a choice between disclosure and withdrawal from public life. It is an approach I suspect Gauck would reject because it does not seek to dissipate public distrust. 57 See Hassemer & Starzacher, pp. 22-23. Note that the Greens as well as the CDU/CSU, SPD and 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 protected by the Stasi may have been protected with intentions of infiltration or provocation, and should be better classified as victims (Stoltenberg, pp. 109-10). Besides monitoring its own officials the Stasi may have monitored other GDR officials for reliability, and material so collected could lead to such people being classified as victims, and hence (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 (ArbG Berlin 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 background to a case before the Federal Supreme Court (Bundesgerichtshof, BGH) on 14 March 1994; see DtZ, 1995, 2, p. 57 (AnwZ (B) 78/93). 66 From the cases 'Horst' and 'Juirgen'in Gisela Karau & Jens Vetter, Gauck Opfer (Berlin, 1995), pp. 20-32. In a BGH case rather similar to that of 'Horst', an ex-soldier won an appeal against debarmentfrom legal practice with the defence that he thought he had been supplying the information to 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, provided it 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 Verwaltungsakte were of central importance in the establishment of the Rechtsstaat, but that the increased role and complexity of contemporary administrationhas led the Verwaltungsaktto be supplemented by a range of other, less clearly conceptualised administrative procedures. 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 of natural justice has been considerably extended since the 1960s; see M. Aronson & N. Franklin,

THE GERMAN STASI RECORDS

329

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 a similar trend in German law. 70 See, for instance, the Administrative Court of Berlin in the Stolpe case: 'basic rights protect the citizen against unlawful impairment of any kind, including those arising from schlichtes Verwaltungshandeln' (NJW, 1993, 39, p. 2549); or the Berlin Labour Court judgement of 1 April 1992, 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 particular Simitis, NJW, 1994, 2, p. 100, and the interviews in Karau & Vetter, most of 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 the Zweiter 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.

I have sought common ground in the opposing interpretations of Lansnicker & Schwirtzek Offe 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 Bundeslandem', 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 to consolidate 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 Sa 100/92, 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 VG 1 A 449/92, 3 June 1993). 79 See Zweiter Tdtigkeitsbericht ..., p. 23. 80 See Karau & Vetter, Gauck-Opfer, and confirmed by 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) and Manfred Stolpe (NJW, 1993, 39, pp. 2548-2552). James McAdams (private communication) was told of 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 Garton Ash'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); Ehrhart Neubert (ed.), Abschlufibericht des Stolpe-Untersuchungsausschusses des Landtages Brandenburg (Koln, 1994), especially pp. 134-135; Das Parlament, 1997, 22-23, p. 16. 86 Compare Stoltenberg, p. 218. 87 See, for example, former President von Weizsacker in press reports of 21 January 1995; the Chairman of the Bundestag Legal Committee, Horst Eylmann, in press reports of 18 March 1995 and 4 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.

330

JOHN MILLER

88 See references above, no. 20. Even so the Bundesrat insisted on postponing until August 1998 the amnesty for collaboration more than 20 years old. 89 This 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 prompt personal vengeance: 'in that case, our people [in 1989] would have come out on to the streets, not with 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).