25 April 2020 Written judgment finished just as the time limit was running out. And: what will happen with the appeal concerning Eminger?

The written judgment of the Higher Regional Court of Munich has been finalized and sent to the court registry on 21 April, one day before the end of the time limit. Of course, the court is within its rights to use up almost the entirety of the available time limit, but its approach nonetheless leads to problematic consequences given that almost two years have passed since the oral judgment, and especially given the enormous political importance of the NSU trial and judgment. One cannot quite escape the feeling that the court, by waiting until the last minute to finalize its written judgment, is once again trying to show that the judgment against Zschäpe, Wohlleben, Gerlach, Schultze and Eminger is somehow normal and trivial and that the NSU complex has been dealt with in a final manner anyway.

Further proof of this kind of ignorance, whether purposeful or not, is that by now, a few days after the judgment has been sent to the court registry, it seems to already be on the desk of several journalists, but has not yet been sent to the victims taking part in the proceedings.

We do not wish to deal with the judgment as a whole at this point. For one, we do not yet have it before us, and secondly, we have already said a lot on the most relevant legal and factual issues.

For us, the most important question at the moment is how the federal prosecution will proceed with its appeal against the (partial) acquittal of accused André Eminger. The court had believed Eminger, the committed neo-Nazi arguing for the use of armed violence, the closest confidant of the NSU core trio, that for many years until 2008, he had no clue what the NSU core members were going to do with the vehicles etc. that he procured for them.

That this is far from convincing, to say the least, has been stated by prosecutor Jochen Weingarten in his concluding statement, where he even asked “whether the fourth Pink Panther-avatar in the [NSU] video is not there to represent you, Mr. Eminger”, i.e. whether Eminger should not even be considered a fourth NSU member. For further information on Eminger, in German, we refer our readers to a short article by Friedrich Burschel and a radio feature by Alexander Hoffmann. A first assessment of the far from convincing reasoning in the written judgment can be read in an article by Annette Ramelsberger in the Süddeutsche Zeitung.

However, in contrast to Weingarten’s concluding statement, the federal prosecution had not indicted Eminger as a member of the NSU. After all, this would have been contrary to their thesis that the NSU had been an isolated trio and, in the final analysis, to the mantra that the topic NSU had been fully dealt with, that there was no Nazi terror in Germany. Similarly, the court, having a few months earlier held Eminger to be “strongly suspected” of all counts of the indictment against him and had ordered his pre-trial detention and then having changed its opinion in the oral judgment, seems to have realized that any strong finding on the very close relationship between Eminger and the NSU core trio would have called into question its judgment as a whole, in its attempt to draw a line under the entire NSU complex and to declare the issue resolved.

Only the federal prosecutor has appealed against the partial acquittal of Eminger. His office is now faced with the tall task of on the one hand explaining within the one month time limit why this acquittal is unlawful, without at the same time conceding that Eminger was in fact a member of the NSU and thus that already its own indictment was in error. 

There is thus reason to fear that the federal prosecution will not conduct its appeal as forceful as needed, might even simply withdraw it in order to draw the line it wants to have drawn under the NSU complex. For us, leading aside the entirely legal question whether the court was correct in convicting Zschäpe as a co-perpetrator rather than an accessory to the NSU crimes – our answer: yes, it certainly was –, the most interesting and most important issue at the moment is whether and how the prosecution will continue in its appeal against Eminger’s acquittal. 

For those who wish to actually have all the facts concerning the NSU complex elucidated, it has been clear since 11 July 2018 at the latest that nothing is to be expected from the court’s judgment. Nonetheless, the demand that “no line may be drawn” still remains, and one essential conclusion from this demand at this point is exactly this: the federal prosecution must remain true to Weingarten’s entirely correct statement in the concluding statement and must fully commit to its appeal against Eminger’s acquittal!