The German Watergate
Why no Restitution was allowed during the German Reunification Process

Many things take their time. The evaluation of the National Socialist regime for instance is more exact and reliable when you consider it now, half a century later. Nothing else applies to subsequent events of German history. The procedures associated with the German reunification in 1989 / 1990 will be reappraised and evaluated at some time under historic, legal and political aspects.
And now, thirteen years after the German unification, for the first time an academic evaluation has provided facts about the so-called "exclusion from restitution."

The property that had been stolen from politically prosecuted individuals under communist dictatorship in the former Soviet occupied zone of Germany from 1945 to 1949 shall be withheld from all victims further on, i. e. expropriation was a precondition of the German unification.
Even today this version is maintained by political leaders also to the public and is described to be irreversible.
To which extent it really proves to be irreversible will become obvious when the results of a research will be published a young political academic, Constanze Paffrath, recently assembled on 612 pages. Paffrath received her doctorate "summa cum laude" in July 2003 from the University of Duisburg-Essen under professorships of Claus E. Bärsch and Karl-Rudolf Korte.
The two professors attested Paffrath excellent presentation of the case "The Exclusion of Restitution in the Reunification Process". Paffrath came to the conclusion that West German politicians responsible for reunification had violated their constitutional mandate by disallowing the restitution. The results of Paffraths investigation are in contradiction to the verdict the Federal Constitutional Court of Germany reached.

In two verdicts in 1991 and in 1996 this Constitutional Court certified the former Federal Government under Chancellor Helmut Kohl to have acted in accordance with the constitution in respect of "the expropriations under occupation law and occupying powers." Paffrath however furnished proof of both verdicts to be based on wrong facts resulting in false conclusions.

The verdicts assumed the Federal Republic did act in accordance with the constitution and that negotiations with the Soviet Union and the GDR were dutiful.
Paffrath proved this assumption to be wrong.
The Court failed to examine the German Government´s position thoroughly. The most important witnesses (Wolfgang Schäuble and Günther Krause) were rejected. Only witnesses who sympathised with the Federal Government (Dieter Kastrup, Klaus Kinkel) were heard. They were not heard as witnesses, but informally questioned, thus protecting them from any criminal proceedings which would have made them liable to perjury.
The first verdict followed an argumentation which had been formulated by the parliamentary services and was verbally utilised and, in parts, copied by the court.

This investigation additionally illuminated further parts of the severe political and legal scandal and supports what others had uncovered previously. Paffrath also discusses whether promoting unification should have had priority over constitutional considerations. She explains on many pages, why the rule of law must have first priority.

The three main arguments of the investigation are as follows:
It is confirmed that the Soviet Union did at no time and at no state of the negotiations demand an exclusion of the restitution.

The main representatives of the Federal Republic have deliberately misled the public and the parliament against their better judgement. The Federal Government itself planned the exclusion of restitution long before official international negotiations. Therefore an error in respect of the initial position of the Government can be excluded.

Even if the Soviet Union and the GDR had demanded the denial of restitution as indispensable, the German Government would not have been allowed to accept this demand, neither under the constitution nor under the previous Constitutional Court verdicts, even if the reunification had been at stake.

The investigation includes further evidence in respect of several other theories. One of them was the predicament the Federal government pretended - the denial of restitution was never a precondition of German reunification. Therefore, the Government was never exposed to a conflict between political necessity and constitutional law. The main part of the deceptive strategy was to link the Soviet demand for indemnity - i.e. the exemption from any prosecution for crimes during Soviet occupation - with a general denial of restitution. The GDR had at no time the political power to push through their own demands during the German-German negotiations. The Federal Government´s negotiators made the decision to withhold the property taken away under Soviet occupation from politically prosecuted civilians in March 1990, long before the first free elections in East Germany. The Federal Government´s schedule for signing the unification treaty left no chance to the members of parliament to examine it thoroughly. The arguments presented to the legislative to receive their consent to the pretended property law regulations were untrue. Only by deception of parliament the government managed to pass a resolution which altered the constitution and received consent to the 2 plus 4 treaty and the treaty of unity.

Professor Bärsch wrote: "Without deceiving the public, the parliament and the Federal Constitutional Court, the denial of restitution would never have reached a status of legality." The fact that all three parties were prepared to be deceived raises the question whether and to which extent this deception was welcome. Whether the individuals concerned will face the facts - or still not yet - will become obvious by the way the deceived handle Constanze Paffraths documents: will they silence her, as they have done so far, or will the scandal be uncovered and the rights of the victims be restored. The dimension and the severe damage to the constitutional rights reach far beyond the American Watergate scandal in 1974. The difference to Germany is: The Watergate scandal was dominating the media for two years and ended with the prosecution of those responsible.

The previous silencing of the truth shows, in an alarming way, what the discussion about the "Centre against expulsion" revealed: not every expulsion shall be equally condemned, equally mourned or remembered. This is the objective of those, who want to measure the fate of the German refugees from Eastern Europe and former East German territories with different, insensitive and less human criterion. Insinuating a personal guilt for the crimes of the Nazi dictatorship the expelled are expected to have to pay dearly for the loss of their homeland, property, life and health. Moreover, their expulsion, their political persecution, their sufferings and their innocence, shall not be equally appreciated in public and is to be silenced. The dispute in respect of the Benes Decrees in the Czech Republic and the crimes committed during political expulsion of the Sudeten Germans perform a perfect example for the above discrimination.
(English version by D. Griffiths)