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German Court Clears Most East German Cold War Spies of Treason

May 23, 1995

BONN, Germany (AP) _ Most of the East German spies whose tentacles reached into the heart of West Germany can’t be prosecuted by the state that absorbed them after their defeat, Germany’s high court ruled Tuesday.

The Federal Constitutional Court ruling should help to clarify the legal framework for Germany’s reckoning with its bitter Cold War legacy.

Conservatives and victims of communist repression denounced the ruling, saying it gave credibility to a corrupt and criminal regime. Representatives of some 6,000 former East German spies rejoiced.

Tuesday’s ruling was an ``encouraging signal″ that would end years of ``uncertainty, defamation and prosecution,″ said Markus Wolf, the legendary East German spy chief.

Wolf’s 1993 treason conviction and six-year sentence _ as well as dozens of other trials _ were likely to be overturned by the court’s ruling, which said spying for East Germany in itself wasn’t a crime.

``Wolf and the others did what every other country in the world does,″ said Heribert Hellenbroich, who lost his job as West Germany’s intelligence chief in 1985 when a top aide defected to Wolf’s services.

``It’s painful to respect the constitution some times, but you can’t get around it,″ Hellenbroich said.

East Germans who spied from inside East Germany can’t be prosecuted, the court ruled, but those who spied on the soil of West Germany or other western countries could be.

The court’s logic was that East German spies in unfriendly countries had been subject to arrest at the time. But even they should be handled leniently, the court said, because they deserve the protection of the state that adopted them when theirs disappeared.

In practice, the ruling means former East German spy managers won’t be punished, unlike some of their agents in the field.

Prosecution of former West German citizens who spied for East Germany won’t be affected by the ruling, nor will prosecution of East German spies for crimes like coercion and murder.

The 5-3 division of the court reflected the fine line Germany treads between punishing those guilty for 40 years of Stalinist rule, and integrating East Germans on an equal footing. The slap on the wrists many Nazis got after World War II weighs heavily on the debate.

In their dissenting opinion, Judges Hans Hugo Klein, Paul Kirchhof and Klaus Winger said the decision was effectively an amnesty. They pointed out that Germany’s parliament had rejected other amnesties.

While the high court mulled the decision for four years, several lower courts prosecuted spies. The feeling of injustice stemming from these cases ``has been counterproductive to German unity,″ the Constitutional Court said.

While Wolf was on trial in Duesseldorf, a Berlin court threw out proceedings against Werner Grossman, who succeeded Wolf as spy chief in 1986. The Berlin court said Grossman couldn’t have betrayed a country he wasn’t a citizen of.

Wolf claimed the court took revenge on him for the hundreds of moles he planted in West Germany from 1953 until his retirement, including one whose unmasking brought down Chancellor Willy Brandt in 1974.

Wolf won every espionage battle only to lose the war when East Germany collapsed in 1989. His spies provided the Soviet bloc NATO secrets that could have been decisive had war broken out in Europe.

The judges have ``placed the East German police state on a moral pedestal and posthumously recognized the East German nation,″ charged politician Bernd Protzner.

But the Constitutional Court suggested that prosecution of spies should not be motivated by disdain for communism. Unified Germany must not ``make citizens criminally responsible on the basis of a condemnation of their social and ethical principles,″ it said.

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