After deliberation, the Court has decided that for the time being, the count of the indictment concerning the bombing attack in the Keupstraße will not be severed from the trial.
In-depth reporting on the trial day will follow later today.
The following is a common press release of victims counsel Carsten Ilius, Antonia von der Behrens, Sebastian Scharmer, Peer Stolle, Christina Clemm, Edith Lunnebach, Alexander Hoffmann, Berthold Fresenius, Stephan Kuhn and Angelika Lex.
During the trial hearing of 15 May 2013, presiding judge Götzl announced that he was contemplating a severance of those counts of the indictment relating to the Keupstraße bombing attack in Cologne. This would mean that a trial concerning the Keupstraße bombing attack would only be conducted in two or three years’ time or, far more likely, that there would simply be no trial at all on these counts: A conviction of Beate Zschäpe for the remaining counts, resulting in a sentence of life imprisonment and a finding of “particular seriousness of the convicted person’s guilt” (under German criminal law, this would mean that a first parole hearing would not be held after fifteen years, but after a significantly longer period of incarceration), would mean that the Keupstraße proceedings could simply be continued, under Sect. 154 of the German Code of Criminal Procedure, as a conviction in that case would be incapable of leading to a material change in the sentence.
The idea of a potential severance seems to have been inspired by a defence complaint about the size of the courtroom, particularly given that further persons affected by the Keupstraße bombing attack may join the proceedings as private prosecutors.
The only conceivable reason for a severance would be the wish of the court to get rid of the Keupstraße victims and private prosecutors currently taking part in the trial. Most importantly, a severance would not obviate the need to hear evidence on the Keupstraße bombing atack. As stated by Carsten Ilius, counsel for Elif Kubaşık, the widow of Mehmet Kubaşık who was murdered by the NSU in Dortmund: “The bombing attack is also of particular relevance for the other counts of the indictment, above all the 10 counts of murder. The character of the NSU’s deeds as racist crimes finds prominent expression in the Keupstraße bombing attack.”
What’s more, the courtroom is of quite sufficient size. There were a number of free seats on the private prosecution bench today. The presiding judge’s idea that the court room is too small for potential additional private prosecutors from the Keupstraße is pure speculation at this point. And finally: should the court room actually turn out to be too small, it would simply be the court’s task to find a larger courtroom instead of ousting victims from the proceedings.
For the victims and private prosecutors, a severance of these counts would be nothing less than a further slap in the face. It would be a clear signal to all victims of Nazi terror that the Munich Higher Regional Court is prepared to run roughshod over their interests.
The attack took place on 9 June 2004, when a nail bomb was detonated in the Keupstraße in Cologne, a street inhabited predominantly by people with Turkish roots. 22 people were injured, several of them severely. 70 people were present in the bomb’s blast radius. The Keupstraße attack was the biggest of the NSU crimes from a propaganda perspective. It was intended to, and it did, instill fear and terror in the German population of Turkish origin. The many Keupstraße residents affected by the attack knew quite well, and despite the many denials of law enforcement agencies and politician over several years, that this could have been nothing other than a racist terror attack. The law enforcement agencies, on the other hand, directed their investigations against the Keupstraße residents. The victims had to wait almost a decade before the likely perpetrators were found and a trial against them began – having to wait another several years or having the proceedings simply discontinued would be simply unbearable for them.
The court proceedings this afternoon will be devoted inter alia to statements by the federal prosecutor’s office and by victims’ counsel on the questions of severance.
Antonia von der Behrens, Sebastian Scharmer, Peer Stolle, Christina Clemm, Edith Lunnebach, Alexander Hoffmann, Berthold Fresenius, Stephan Kuhn, Angelika Lex.
The trial hearing, which as reported had been interrupted again last week, today began with several defence motions for interruption or suspension of the hearing. Among the issues raised were the size of the courtroom and resulting cramped conditions, insufficient access of the public and the claim that the defence had not been given access to all documents pertaining to the second round of media accreditation. All but one of these motions were rejected, a decision on the last one will be issued lateron.
Then, finally, the indictment was read out in court. It took Federal Prosecutor Diemer slightly more than an hour, from 3:37 to 4:41 pm, to read out the operative part of the indictment, some 35 pages. The remaining part of the 488 page indictment, containining the “relevant results of the investigation”, is not read out in open court.
Finally, the defence also brought two challenges to the composition of the court. A decision on these will be issued tomorrow.
And again, the bombshell was dropped towards the end of the hearing. Almost in passing, the presiding judge referred to an argument the defence had picked up from a motion by a victim’s counsel: There have been several motions by residents of the Keupstraße in Cologne to join the proceedings as private accessory prosecutors, more are to be expected. Adding to the number of private prosecutors may exacerbate the problems concerning the size of the courtroom. One possible consequence entertained by the court is the severance of those counts of the indictment dealing with the 2004 bombing attack in the Keupstraße. This would mean that separate proceedings would have to be conducted concerning solely this attack. It is evident that the earliest a trial on these charges could be held would be after the end of the trial in Munich – in all probability, there would be no separate trial and these proceedings would simply be “buried” by way of discontinuance after the end of the Munich trial.
Therefore, a severance would not only be a slap in the face of the victims in Cologne, but also a clear signal to all victims of Nazi terror that the Munich Higher Regional Court is prepared to run roughshod over their interests.
The trial hearing will continue tomorrow, 15 May. The possible severance of the Keupstraße bombing attack will be one issue discussed during that hearing and will thus be the focal point of our reporting.
As expected, the beginning of the criminal trial before the Munich Higher Regional Court was a rather sluggish affair. However, it ended with a surprise: presiding judge Götzl ordered that the trial be interrupted until Tuesday, 14 May 2013. The trial dates planned for 7 and 8 May 2013 were cancelled.
This decision came as a surprise to the private prosecutors and was not necessary under German criminal procedure. For the more than thirty private prosecutors who had appeared for the beginning of the trial, having yet more trial dates cancelled is quite hard to bear.
After all, nothing of what had happened during this first day of the trial could have been a surprise or a particular challenge to the court and its presiding judge. The motions brought by the defence were the apex of correspondence between the defence and the court that had been going on for quite some time. The defence of main accused Zschäpe had already on Saturday sent a submission to the court challenging the impartiality of the presiding judge. They challenge the presiding judge’s so-called security order according to which, inter alia, all defence counsel and counsel of private prosecutors are to be searched upon entering the courtroom, while the fderal prosecutors and members of the court are not to be searched. This order, the defence claims, give the impression that particular dangers emanate from defence counsel. Defence counsel as well as some counsel of private prosecutors had already protested against this order before the beginning of the trial. It was to be expected that the defence would base a claim of bias on this order, as is often done in similar trials. The court at first decided to postpone the decision on this claim of bias and to continue with the trial.
Another submission claiming bias was brought by the defence of Ralf Wohlleben. His counsel Klemke spent more than 40 minutes reading out a rambling submission in which he tried to show why his client held that presiding judge Götzl as well as members of the bench Lang und Kuchenbauer were biased against him: For one, certain renovations and alterations to the courtroom had been ordered already before the indictment had formally been admitted to trial by the court. The three judges claimed to be biased had also confirmed the seizure of letters sent by Wohlleben in which he had ordered certain letters in the form of a swastika (which under German law raises the suspicion of the crime of “using symbols of unconstitutional organisations”). Finally, Wohlleben felt that he was being treated unfairly vis-a-vis his co-accused Zschäpe in that she had been assigned three legal aid counsel in contrast to his two. Previously, he had unsuccesfully tried to have the court assign Wolfram Nahrath as his third counsel. Nahrath is a German attorny and a former functionary of the “Viking youth”, a neo-Nazi youth organization modelled after the Hitler Youth. Besides presenting their own claim of bias, the Wohlleben defence also joined the submission of the Zschäpe defence.
Counsel Klemke announced that he would also challenge the composition of the court, in particular the choice of judges taking part in the trial.
However, he did not have a chance to actually bring this challenge. Shortly before 5 pm, presiding judge Götzl ordered that the trial be interrupted until next Tuesday. According to Götzl, the official statements to be given by the judges claimed to be biased, as well as the decision on those claims, necessitated an interruption of one week.
This decision came as a surprise to all parties, both the defence and the private prosecution. Not only is it an entirely normal and established procedure that decisions on claims of bias are postponed for a trial day or two so that the trial can go on, at least until challenges to the composition of the court have been dealt with and the indictment has been read out in open court. What’s more, the date for the first trial date was known well in advance and it was to be expected that the defence would raise claims of bias. The judges charged with deciding on these claims could well have stood by to decide on these issues as quickly as possible. Some of them were present in the courtroom anyway as they are also members of the trial bench, most of the others were at least present in the court building. Nothing would have prevented the court from issuing a decision on the claims of bias by mid-day Tuesday, at the latest on the morning of Wedndesday. This would have allowed the trial to continue this week and the private prosecutors would not have been sent away once more and without need.
One consequence of this further interruption will be that fewer members of the press, particularly the international press, will be present for the next trial date. The attendance of private prosecutors, i.e. of victims and family members of victims of the NSU crimes, will also surely diminish. Many private prosecutors had already made time for the originally planned first trial date, and had overcome considerable anxiety, in order to be present. Now those present in the courtroom once again had their plans thrown in array without any need. Their willingness to expose themselves to such such an ordeal once more will certainly diminish. For the court, this means that the moral pressure exerted by the presence of crime victims will also wane.
This raises the question of the real motives behind the presiding judge’s decision. The suspicion arises that one aim of the multiple interruptions – the postponement of the first trial date after a faulty process of media accreditation had already been subject of some criticism – is to have the interest of the media and the private prosecutors wane in order to be able to continue the trial “in peace” and without public and moral pressure. Already before today’s decision, the time table set up by the presiding judge was reason for distrust on the part of the private prosecutors. The time foreseen for the questioning of witnesses and expert witnesses indicates that the presiding judge does not envision them being questioned by all parties to the proceedings, but rather only by the court. After all, 45 minutes or less per witness do not allow for more than that. The question is thus raised whether this further delay of the trial is part of a strategy to edge the media and the private prosecutors out of the trial in order to be able to conduct the trial “smoothly” and according to the conception of the court. From our point of view, there is no alternative explanation for the way in which the presiding judge conducted the first trial date.