3 August 2015

Victims‘ counsel request access to files the secret service tried to destroy

Before today’s trial day, the court had denied Beate Zschäpe’s new motion to dismiss her defense counsel. Thus, speculations that the trial could be “shattered” or that Zschäpe might make a statement have once again proven to be baseless. Instead, the court conducted “business as usual” today on the next to last trial day before the summer break. However, the witness called for today, an early member of the “Kameradschaft Jena”, did not appear, having sent a doctor’s note.

Victims’ counsel brought a detailed motion to make part of the case file those files of the secret service which had been destroyed shortly after the NSU being uncovered, but which have in the meantime largely been restored:

“Today 29 victims‘ counsel brought a detailed motion to make part of the case file of the reconstructed parts of the files destroyed illegally be the federal domestic secret service, the “Federal Office for Protection of the Constitution”, in “Operation Confetti” on 11 November 2011. They also moved that the secret service officer responsible for the operation, “Lothar Lingen”, be called as witness.

The files concern informers of the secret service active as part of “Operation Rennsteig”, inter alia informer “Tarif”. As “Tarif” and the other informers had been sent to report on the “Thuringia Home Guard” and its precursor “Anti-Antifa Eastern Thuringia” as well as the NPD and its youth organization JN, i.e. the direct surroundings of Uwe Mundlos, Uwe Böhnhardt and accused Zschäpe, Wohlleben, Carsten S. and Holger G., it is to be expected that these files will contain information which is of relevance for the trial.

But, as detailed in the motion, it is not only the presumed close connection of the informers to the trio and the other accused that calls for making these files parts of the case file. In addition, the fact that the federal secret service had destroyed these files directly after the trio had uncovered itself, due to the fact that they contain information on the sources of the NSU, also shows their relevance for the trial.

Counsel also moved that the responsible officer be questioned on the destruction of the files and his own knowledge on the issues raised in the documents. It is likely that witness “Lingen” is able to answer these questions after having read the files and due to his position as co-“lead officer” of informer “Tarif”.

Furthermore, the president of the federal domestic secret service is to be called as a witness to answer the question which of these files is currently in the hands of the service either as an original or a copy – this to ensure that the available documents are actually handed over in their entirety. This may be doubted since the service had only reconstructed parts of the files after informer “Tarif” had announced that he was planning to write a book. Earlier, the service had time and again claimed, even vis-à-vis the special rapporteur appointed by the parliamentary enquiry commission, that it was impossible to reconstruct the files.

These are not the only files concerning the NSU-complex which have been illegally destroyed by several state agencies. The 29 victims’ counsel have come to the conclusion that state agencies thus tried to hinder the elucidation of the NSU’s crimes.

Thus the files must be made of the case files directly, without allowing the federal criminal prosecution, i.e. another agency under the umbrella of the executive, to select those files deemed relevant by them. The very close connection between federal prosecution and federal secret service has lately been shown in the proceedings against whistleblower journalists from netzpolitik.org.

The motion refers to the jurisprudence of the Federal Constitutional Court and the European Convention on Human Rights which require a strong position of accessory prosecutors who need to be able to pursue their own interests in elucidating facts even against the state prosecutors. This is even more so where the state has fail at protecting human life – in such cases, the European Court of Human Rights has found under Art. 2 and 13 of the European Convention on Human Rights that victims not only have a right to an effective and thorough investigation leading to the identification and prosecution of those responsible, but also a right to having an effective influence on this investigation.

Trying to undo the state’s responsibility for the destruction of evidence – which was party successful – is only possible if these materials are made part of the case file. German criminal procedure does give the court a certain leeway in deciding on motions such as this one, but given the jurisprudence of the European Court of Human Rights and the German Constitutional Court, there is no such leeway in this case.”