Beginning of the trial – and another week-long interruption

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.