Case of Fritz Hanke

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On June 5, 1962, 19-year-old Peter Reisch was gunned down on the inner-German border at the Harz Wurmberg

In the Fritz Hanke case , on October 11, 1963, the first and, for about ten years, only federal German judgment was pronounced in a trial against a shooter at the inner-German border .

Fritz Hanke was a corporal of the NVA who fled from the German Democratic Republic to the Federal Republic of Germany in February 1963 and was arrested there after a few weeks in freedom for attempted manslaughter because he had shot a GDR citizen while trying to escape a year earlier. The controversial trial surrounding this act, in which the Stuttgart jury court sentenced Hanke to a prison sentence of 15 months for attempted manslaughter in October 1963 , was considered a model trial and was also noticed by the public in advance through media reports.

After the fall of the wall and reunification , there were a number of court cases from 1991 to 2004, for which the term wall rifle trials was established.

case

incident

On June 5, 1962, Hanke, then a 21-year-old border soldier , shot at the fleeing Egelner worker Peter Reisch from a distance of 120 meters on the demarcation line near Schierke in the Harz mountains on the orders of his post leader . The 19-year-old died on July 13 of severe head injuries. The exact circumstances of the time, manner and place of his death were completely unclear at the time of the trial in the Federal Republic. In the GDR, the shooter received the " Medal for exemplary border service " and a bonus of 200 marks for his actions .

Hanke later stated that he had fled to the Federal Republic in order not to find himself in a similar situation again. He did not expect his arrest there. Company comrades had given West German customs officers across the border information about Hanke. At the “ Central Registration Office for Crimes of Zonal Border Organs ” established in Salzgitter in 1961 , which already had an extensive file on the case, Hanke's name could then be assigned to the hitherto unknown shooter.

Procedure

The Stuttgart judges judged according to West German law and only recognized the orders and laws in force in the GDR, which contained the shooting orders for refugees from the republic , as reducing their guilt. In their opinion, however, "the defendant was also guilty of (attempted) manslaughter under GDR law". The more detailed circumstances of the accused could only be clarified "in broad outline" in the jury trial, which lasted just under a week.

From the prosecution's point of view, Hanke u. a. fulfill the task of "acting as a deterrent and preventing other border police from shooting at their compatriots". The defense, on the other hand, threw in the balance that "the desire for reunification (...) could be weakened by a condemnation in large sections of the zone population who must fear a second Nuremberg". The prosecutor ultimately requested a three-year prison sentence for manslaughter. The defense pleaded for acquittal.

One of the key issues discussed in the Stuttgart trial was whether or not there was an order emergency . A three-time shooting order that Hanke received from his sergeant major was, in the opinion of the court, not a legitimate one and therefore could not justify the act. Hanke should also have known this, since he admitted on the first day of the trial that he knew “that he could have refused the order to clean a toilet with a toothbrush as absurd (...) How much more should Hanke have realized that he did not need to carry out a criminal order that involved a human life, ”it said in this context. Roman Grafe quotes another statement by Hanke in his book German Justice : Trials against GDR border guards and their commanders (2004). "It was clear to him (...) that the refugee was not an" agent, saboteur and common criminal ", but a person who only wanted to leave the GDR and find other living conditions. Before the act, he felt it was too hard to shoot such people. "

Another much discussed question within the proceedings was whether Hanke was the perpetrator or merely participated in the crime. For this purpose, the court decided that the accused was responsible:

  • Hanke made the officially spread slogans of the coercive regime his own. The order to shoot people who did nothing more than flee to freedom was uncomfortable for him, but it seemed like an obligation to be fulfilled if necessary. This made Hanke the prototype of the willing recipient of orders, whose thoughts ultimately coincided with the endeavors of the rulers (...).
  • Had Hanke really inwardly disapproved of the illegal order to shoot harmless refugees, it would not have been difficult for him to miss. He also converted the order to shoot into the desire to hit. He aimed carefully and was a good shot. He didn't need to refuse the order. He could have followed it without hitting and without getting into a predicament by not meeting.

The judgment bears the file number Ks 14/63.

discussion

The verdict was controversial.

In 1967, Gerald Grünwald contradicted in a scholarly essay the view that had prevailed up until then that border guards of the GDR in the Federal Republic could be tried under West German law. If a foreigner commits a crime abroad, the German courts generally do not care. You could only punish if the act was punishable under German law as well as under the law of the crime scene.

The CDU member of the Bundestag, Hans Dichgans , also came to the same conclusion in an article for other reasons: The regulations for the protection of the “state border of the GDR” are only measures taken by the Soviet occupying power that are beyond German jurisdiction.

Development of the legal situation

The Hanke case was decided on the basis of the prevailing view at the time that the GDR was not a foreign country , applying not international, but interlocal criminal law according to the crime scene principle , but limited by the reservation of public policy . Since the border and passport laws of the GDR were in effect at the crime scene, this border regime of the GDR was viewed as contrary to the rule of law, it could not justify the shooting at refugees.

After the basic treaty of 1972, with which the GDR was recognized under constitutional law, the courts switched to the application of international criminal law - however, applying the so-called passive personality principle ( Section 7, Paragraph 1, Section 5, No. 6 of the Criminal Code) to GDR citizens.

After the reunification was in the basic treaty in 315 Art. Section 1. EGStGB established the applicability of the East German criminal law to Alttaten on the territory of the GDR, but with the restriction that the offense would be punishable under German law, also punishable with any milder punishment; However, this was again restricted by Article 315 (4) EGStGB, which provided for the application of Federal German law to old GDR offenses in particular for abduction ( Article 234a StGB) and political suspicion ( Article 241a StGB). According to this, the constitution of the GDR was also applicable in principle - but in the so-called wall rifle trials , taking into account the rule of law and human dignity, it was interpreted in such a way that fatal shots were generally viewed as disproportionate and therefore illegal.

The historian Guillaume Mouralis ( Center Marc Bloch ) has a fundamental analysis of the Fritz Hanke case in his book Une épuration allemande. La RDA en procès. Submitted 1949-2004 . There he interprets the Hanke trial as an expression of the German-German judicial cold war.

The Fritz Hanke case in art

Jürgen von Manger wrote a critical-satirical monologue Legal Commentary (1963), which he presented himself in the television program Hallo Neighbors in the role of a law enforcement officer in the manner of his star role Adolf Tegtmeier and which also appeared in print. The core criticism was a statement in the prosecutor's pleading that “the defendant managed to shoot a German as a German”, which implicitly relativized any shots by Germans at foreigners, such as “negroes or guest workers”.

Wolfgang Quantity shot a television game about the Hanke judgment: Justification for a judgment (1966)

Web links

  • “Tactically smart and correct” . In: Der Spiegel . No. 27 , 1991, pp. 52-71 ( online ).

literature

  • Guillaume Mouralis: Une puration allemande. La RDA en process. 1949-2004 / German purge. The GDR in court. 1949-2004, Paris: Fayard, 2008.

See also

Single receipts

  1. ^ A b Roman Grafe : German Justice: Trials against GDR border guards and their commanders , 2004
  2. ^ LG Stuttgart, JZ 1964, 101; NJW 1964, 63
  3. ↑ a b c D. Strothmann: The death on the barbed wire . In: Die Zeit , No. 37/1963.
  4. ↑ cit. n. Roman Grafe: German Justice: Trials against GDR border guards and their commanders , 2004
  5. ↑ a b quoted from: The judgment of Stuttgart . ( Memento from August 8, 2014 in the Internet Archive ) In: Hamburger Abendblatt , October 12, 1963, p. 25
  6. ^ A b The judgment of Stuttgart . ( Memento from August 8, 2014 in the Internet Archive ) In: Hamburger Abendblatt , October 12, 1963, p. 25
  7. ↑ 15 months for Hanke . ( Memento from August 8, 2014 in the Internet Archive ) In: Hamburger Abendblatt , October 12, 1963, p. 1
  8. ↑ Grünwald: Is the use of firearms at the zone border a criminal offense? In: JZ 1966, p. 633
  9. ^ Hans Peter Bull : Rule of law at the expense of third parties . In: Die Zeit , No. 27/1967.
  10. ↑ Dichgans: On the legal nature of the Central German regime . In: NJW 1966, 2255
  11. ↑ BGHSt 30, 1
  12. ↑ BGHSt 39, 1 and BGHSt 39, 168 ( Gueffroy case )
  13. ^ Ralf Osterloh, Jens Ph. Wilhelm: The wall rifle trials . In: Coming to terms with the past through law . (PDF; 192 kB) DAS 2000, p. 13
  14. ↑ Guillaume Mouralis: Une puration allemande. La RDA en procès. 1949-2004 / German purge. The GDR in court. 1949-2004 . Fayard, Paris 2008, ISBN 2-213-63537-4 , pp. 219-268 ( fayard.fr ).