COLUMN ONE : Germany’s Judicial Nightmare : The east’s system served the Communist Party more than the concept of justice. But in the sudden shift to western legal principles, courts are in a state of collapse.

POTSDAM, Germany —  For four decades, East Germans lived with a legal system that expressed little more than the whim of the ruling Communist Party. Now, six months after embracing democracy in the form of German unification, they hardly have a system at all.

Confused, uncertain eastern judges are struggling with an imported western German legal system that they barely understand.

Prosecutors and defense attorneys often argue cases that they have hardly dealt with before, often in cramped, makeshift courtrooms.

Paralegal support is virtually nonexistent, computers and telephones are luxuries and there is no law library in the region worth the name.

Amid all this, the region’s fragile judiciary has been buried under an avalanche of litigation in the brief period since the two Germanys became one.

As a direct result of unification, for example, about 1.2 million legal claims have been filed in eastern courts for the return of property confiscated by authorities during the Communist era.

About 50,000 eastern Germans branded as political criminals during the Communist era also have applied to the courts for rehabilitation. Besides annulling Communist court convictions, legal rehabilitation would effectively lift the stigma and open the doors to government compensation for damages suffered, such as for years of income lost during a prison term.

“It is an essential part of the democratization process,” noted Ursula Schenck-Giere, in charge of such cases at the Justice Ministry in Potsdam in the state of Brandenburg. “Because of this, there is a sense of urgency.”

Despite the political imperatives, the judicial system has been incapable of responding to calls for swift action, either here or in other legal areas. So far, not a single rehabilitation case has made its way through the courts. Last month, officials in the southern city of Chemnitz reported that of nearly 12,000 property disputes registered, only one had been settled so far.

“The judiciary’s condition in the new federal states is catastrophic,” Social Democrat parliamentarian Hans de With summed up recently.

And Saxony’s Justice Minister Steffan Heitmann declared: “In Saxony, the rule of law exists only on paper.”

While Heitmann’s comments are extreme, they ring true for many in this newly democratic region.

Part of the problem is a critical manpower shortage. East German industry may have been hopelessly bloated with excess labor. But the Communist hierarchy felt little need to staff a judiciary that, at its best, was predictably routine.

Much as in other Soviet-style Communist states, the role of the East German courts was more to support the Communist Party and state leadership than to serve any concept of a higher justice.

It was a system that not only supported summary executions of those caught trying to cross the country’s western frontier but in some cases helped forcibly remove children from families of political dissidents and made cooperation with the secret police a formal duty. Legal literature was sparse, decisions usually clear-cut and the degree of judicial independence strictly limited.

Consequently, a nation of 16 million people was served by only 1,600 judges, 900 public prosecutors and 600 independent attorneys. By comparison, the western German state of North-Rhine Westphalia, which has a similar population, counts 4,800 judges, 1,000 prosecutors and 15,000 lawyers.

As an indicator of the former Communist regime’s widespread political influence in the judicial system, even many of its independent lawyers, perceived initially as heroes in the West for defending political dissidents, have since been revealed as key informants for the country’s pervasive secret police, known as the Stasi.

In the former East German system, judges did not rise from the ranks of practicing lawyers, as they do in the United States. Instead, they were educated to be judges and often went straight from the university to the bench.

Now, since unification, about 400 eastern judges have resigned, partly to avoid being fired. The judgments and political activities of the rest are under review by special committees made up of state legislators and eastern and western judges. The committees are trying to assess the jurists’ legal competence and their present political acceptability.

Some eastern judges incorrectly applied even the limited laws in their previous system, the committees have found. One jurist imposed a Draconian maximum sentence on a defendant accused of passing subversive literature, when the eastern German standard called for lesser penalties.

As for the scrutiny of the jurists’ politics, it is of necessity more subjective and arbitrary, officials say. Almost all eastern judges, of course, were Communist Party members. But committee members now must try to determine just how zealous they were in their adherence and how capable they are of adapting to western, democratic principles.

After the process is complete, some western officials believe that as many as 90% of the judges still serving and half the public prosecutors (who are undergoing similar screening) eventually might be forced to step down.

Their future in doubt, the eastern jurists handle cases three weeks per month, then go to school for one week to learn the basics of an independent judiciary--a routine that one unnamed eastern judge said has left them all in need of a psychiatrist.

In addition to cases directly related to unification, the eastern German judiciary has been hit by a rising tide of litigation in other areas.

The economic and social turmoil that has accompanied the initial restructuring of the former East German society has generated an increase in broken marriages, bankruptcies and loan defaults, many of which end up before the courts. An eastern Berlin couple who had a divorce court date last Sept. 17 were told a few days before that all hearings would be suspended until after the Oct. 3 unification. They are still awaiting a new date.

Cases of employees suing employers for unfair dismissal--hardly an issue in the Communist era when all industry was state-owned and everyone had a job--have grown as fast as the region’s unemployment rate, which is now around 30% and climbing. In the state of Saxon-Anhalt, the number of such cases jumped from 600 in 1989 to 16,000 last year. Claus-Hinrich Germelmann, vice president of Berlin’s industrial court, predicted that courtroom backlogs of up to two years for such cases would quickly become the norm throughout the eastern sector.

Only inaction on the part of confused, disoriented eastern police has prevented a 300% surge in criminal activity over the past year from generating a similar rise in the criminal court caseloads.

The chaos surrounding eastern Germany’s judicial process has contributed to a larger disillusionment that has descended over the region since unification. It has dampened the idealism that bloomed briefly throughout Eastern Europe in the spring after the revolutions of 1989 and now threatens social stability.

“There’s an acute danger of a lasting mistrust for (the western) German rule of law among the east German population,” warned a statement issued by the Bonn-based Assn. of German Judges.

In part, the cause of the problem is depressingly familiar: a bankrupt Communist legacy that once again has left all too little to build on. But in the eastern German judiciary, the problems are more complex, emotional and intractable.

They stem largely from the fact that the Communist judicial figures were, as one western judge put it, “the know-it-alls of the nation.”

“They rarely referred to books and . . . the highest court could set anything aside it wanted to,” said Bernd Pastewski, a western Berlin jurist who ran a 12-week retraining course late last year for eastern Berlin judges.

The very idea that these jurists should be allowed to become the pillars of such a vital democratic institution as the courts is repugnant to many.

Hans-Juergen Grasemann--a spokesman for the Central Monitoring Office in the western German city of Salzgitter, an authority that monitored political excesses in the old East Germany during much of the Cold War era--spoke of a system of “telephone justice,” under which judges, unsure of how to handle a case, simply called political higher-ups for instructions.

In an interview, he claimed that East Germans, expelled for political crimes or who escaped to the West through the heavily fortified frontiers, had over the years named almost 40% of the present eastern German judges and public prosecutors as having been involved in trials that led to their imprisonment.

“All the old criminals are still there,” asserted Ruediger Knechtel, a Chemnitz resident and board member of the League of the Victims of Stalinist Persecution. Knechtel, jailed for two years for throwing a note over the Berlin Wall that contained a music request for the U.S. Armed Forces Radio, threatened to organize courtroom sit-ins if politically compromised judges weren’t immediately suspended.

Certainly many of the Communist-era judgments raise serious questions.

There was, for example, a ruling that sent a 16-year-old girl to four years in jail for asking her teacher if the bearded former East German leader Walter Ulbricht was really called “old pointed-beard” in the West. Or take the case of the 45-year-old Dresden physicist sentenced to seven years in jail for lending a copy of Alexander Solzhenitsyn’s banned book, the “Gulag Archipelago,” to friends.

For many eastern German judges and prosecutors, the idea of going back to school has been hard. “Suddenly, the former . . . enemy comes along and says everything (the eastern jurists) did was just so much baloney,” Pastewski said. “Some found it very hard.”

Pastewski said the retraining course covers legal fundamentals, such as defining the role of an independent judiciary, to the details of property, business and labor legislation, which hardly existed in the former Communist state. “We started with the premise they had zero knowledge” of a western-style system, he said.

Pastewski, who normally hears civil cases in western Berlin, said his eastern counterparts were rarely combative or openly resistant to the retraining. But there also has been no immediate cheerleading for the new system they are learning. Instead, he said, many seemed to go through deep, quiet personal crises.

“They were very quiet, very reserved,” he said.

Conrad Weide, 35, a labor court judge in Potsdam who goes to school one week each month to learn more about the law he applies during the remainder of his working month, described the experience as unusual.

“It depends on the people doing the teaching,” he said. “If someone comes in and starts treating people as children, then there can be tension. I’ve had more good lectures than bad.”

For Weide, it’s not learning the detail of the law that he finds difficult. “That comes with a lot of hard work and involvement,” he said.

What is tougher for him is developing a sense for applying this new law. “Earlier, when I heard a lot of similar cases, I knew where I stood. I had developed a feel for the law,” he said. “Now every case is completely new--something I’ve never had before. I have to know in myself where I stand and that comes only with experience.”

Those western judicial officers involved in retraining eastern judges claim many are capable of making the transition.

“Many of them are smart, motivated and interested in learning,” Pastewski said. “Considering what they’ve had to work with, I’m amazed.” He said he believes that many of the jurists can be successfully integrated into Germany’s democratic judiciary.

Despite the growing sense of urgency, the process of integrating eastern judges has been slowed to a crawl by its own set of maddening problems. Forming the committees that are to pass judgment on the eastern judges has been held up because eastern committee members must be investigated first. These investigations, in turn, have been held up by a severe shortage of personnel at the huge secret police archives--a shortage generated by a backlog in issuing security clearances. Of 302 eastern Berlin prosecutors and judges who completed a retraining course last December, 11 have so far been cleared for a three-year probation.

“It’s a nightmare,” noted Pastewski. “It can’t go on this way.”

The initial target of completing investigations of all eastern judges and prosecutors by April 15 has already been pushed back to December. But that date, too, could be optimistic, many believe.

German Justice Minister Klaus Kinkel has proposed a series of measures to ease the crisis, including shortening legal education, an exchange of judges to give eastern judges greater exposure to western practices and to broaden the conditions of cases that can be heard by a single judge rather than the usual three-judge courts.

Some western states have reached agreement to send judges to the eastern sector on loan, but the numbers remain well below those needed to revive the system. A much-heralded plan to offer liberal bonuses to coax recently retired judges to the bench in the eastern sector has also brought only marginal interest. Instead of the desired 1,300 volunteers, only 150 have so far registered any interest.

Meanwhile, with little additional help, eastern judges and prosecutors labor on in a system that they hardly understand in an atmosphere where their personal future is often as uncertain as their judgments.

To suspend the eastern judges until their investigation is completed would invite further chaos, western experts here agree, yet allowing them to continue opens the door to a possible avalanche of appeals in cases handled by judges later found unfit.

What happens if--as expected--a large number of eastern judges are found to be politically compromised remains an open question.

“We don’t have the answers,” admitted Justice Ministry spokesman Juergen Schmid, a former judge.