12 June 2018

Closing statement of counsel Stahl on the question of co-perpetration

Today Zschäpe defense counsel Stahl gave his closing statement on Zschäpe’s criminal liability as a co-perpetrator of the murders, bombing attacks and robberies committed by the NSU. As announced by his colleague Heer last week, Stahl moved that Zschäpe be acquitted of all these charges.

Stahl began by announcing that the defense largely agreed with the prosecution as to which facts could be considered proven and only differed as to the legal characterization of these facts. In fact, however, his statement consisted of a mixture of attempts to attack the legal characterization of the facts as found by the prosecution – which, according to Stahl, did not establish Zschäpe’s liability as co-perpetrator – and attempts to attack these very facts and to defend Zschäpe’s self-presentation as someone who had only accompanied Böhnhardt and Mundlos underground more or less willingly and did not have anything to do with their crimes.

As to the legal question whether the acts of which Zschäpe stands accused – all of which, in our view, have been proven in court – suffice for a conviction as co-perpetrator, Stahl began with a quote from Prof. Claus Roxin, probably the most renowned expert on questions of the definition of (co-) perpetration under German criminal law. Stahl also referred to several decisions by the 3rd Chamber of the Federal Court of Justice, i.e. the very bench which will also have to decide on any defense appeals against the Munich judgment. Stahl concluded his statement with a quote from the presiding judge of that chamber which he meant to show that the Federal Court of Justice would not uphold a conviction of Zschäpe as a co-perpetrator. However, a closer look at the Roxin quote already shows that Stahl considered these aspects in a rather one-sided manner: In an interview in the early days of the trial, Roxin had stated that living together with two murderers did not in itself make a person a murderer – but he had clearly made that statement based on at best a partial knowledge of the facts of the case and had also added that his view might be changed if additional factors were present (i.e. possible contact with the direct perpetrators during the actual commission of crimes). And as to the many decisions of the Federal Court of Justice to which Stahl referred, they considered cases where, e.g., the accused had driven her partner to a robbery on a gas station and waited outside in the car or where the accused had been a member of a group of fraudsters charged with ancillary tasks such as providing credit cards and wiring on monies gained fraudulently to the main perpetrators – cases which obviously do not have much in common with the case of the NSU.

Now, Stahl’s claims that a conviction for co-perpetration presupposes an influence on the commission of the actual crime, or at least the will to so influence the commission, is true at first approach. However, his attempts to prove, one by one, that the acts Zschäpe is accused of do not fulfill this condition, and to pretend that this was all that needs to be said on the question, were based on an overly formal approach to the question which (intentionally or unintentionally) left out all of the political background. After all, Zschäpe was not some random flat mate of two men who happened to be murderers. She had been active in neo-Nazi groups with the two men since the 1990s, groups in which documents such as the “Turner Diaries” were read, she had undergone a process of radicalization together with these men, had committed several crimes with them, had taken part in strategy discussions concerning armed struggle etc. What’s more, the division of tasks between Zschäpe and the two men, as described in the indictment and as proven in court, followed exactly along the lines laid down in blueprints such as the Turner Diaries. In short: the law cannot and should not deal with the NSU in the same way it deals with a couple robbing gas stations or with a gang of fraudsters. And contrary to Stahl’s accusations against the federal prosecutions, to state this claim does not mean to argue for a separate “criminal law for enemies of the state”. Rather the claim simply follows from the fact that an influence on the commission of crimes hinges on different criteria in cases of a small group committing crimes in furtherance of a political ideology in a strategic manner from the underground – a statement which, by the way, can also be found similarly in the books of criminal law expert Roxin.

Parts of Stahl’s statements were rather inane attempts at arguing against straw men. One clear example arose when he dealt with a bet in which Zschäpe had offered a wager of “cutting 200 video clips” – which the prosecution rightly sees as a reference to cutting video clips for the NSU “Pink Panther” video which Zschäpe later sent out. Stahl felt compelled to deal in detail with the likelihoods that Zschäpe had in fact lost that bet, that after losing it she had in fact honored her wager – as if the bet could only be relevant for the judgment if Zschäpe had indeed cut these exact 200 clips exactly since she had lost this exact bet. This is, of course, nonsense as the relevance of the bet follows from a different consideration: it shows that, for Zschäpe, the wager of “cutting 200 video clips” made as much sense and was as compatible with her daily life as the other wager, made in the same bet, of “cleaning the living room ten times”. This familiarity with the issue, together with other pieces of evidence, shows that Zschäpe was deeply involved in documenting the crimes of the NSU and in producing propaganda based on these crimes – whether she in fact cut these very 200 clips is beside the point.

As to the other acts of which Zschäpe is accused, Stahl dealt with them in a similarly formalistic and unconvincing manner. Accordingly, his statement will not be of any help to his client, neither as concerns the judgment in Munich nor as concerns an appeal to the Federal Court of Justice.