Federal Court of Justice: Decision on revisions in the NSU trial

In July 2018, the Munich Higher Regional Court announced its verdict in the NSU proceedings. 93 weeks later, the judges presented the written reasons. Now the first decisions by the BGH are apparently pending on August 19.

There is agreement that the two dead Thuringians Uwe Böhnhardt and Uwe Mundlos as well as Beate Zschäpe, who has been in custody from 2011 to this day, were the central figures of the NSU. All three met in Jena, radicalized themselves in the right-wing scene and went into hiding in the late 1990s after the first right-wing extremist crimes before they began murdering on racist grounds in 2000.

The four other defendants of the NSU trial besides Beate Zschäpe are considered to be helpers of the group. Investigations have been ongoing against other men and women in connection with the NSU since 2011. Possible, as yet unknown accomplices and helpers are still being investigated. The investigators have not yet been able to find local helpers at the locations of the murders and attacks. To this day, many relatives suspect that they must have existed.

Those are the legal sticking points

Above all, it is controversial whether Zschäpe can be an accomplice of the deeds, i.e. in the legal sense a full perpetrator and not just a helper, if she was not there when they were carried out. The Higher Regional Court (OLG) Munich and the Federal Public Prosecutor General assume both: that she was not on site and yet fully responsible. Her role was to guard the apartment in Zwickau, which was rented under a false name, and to guarantee the murderers Böhnhardt and Mundlos a safe haven.

From a legal point of view, Zschäpe could also be an accomplice in the murders if the trio agreed on essential aspects of planning and implementation. This is how the OLG Munich saw it. Before each act, the two Uwes discussed the location, implementation and logistics with Beate Zschäpe. Then the men drove off and Zschäpe secured the place of retreat. The problem is that almost nothing is known about the precise planning of the group. Although there are strange records, city maps with markings, rental agreements for cars, the investigators’ imagination of the course of the crime consists of many pieces of the puzzle and few clear clues.

NSU trial

The “National Socialist Underground” (NSU) terror cell murdered at least ten people from 2000 to 2007 for racist motives, including small entrepreneurs of Greek and Turkish origin and a policewoman, carried out several bomb attacks with dozens of people, some seriously injured, and robbed banks and savings banks, to fund their deeds. Many of the injured and relatives of the dead are traumatized to this day.

The police and intelligence services, on the other hand, were embarrassed: until the NSU was discovered, German investigators and constitutional protection officials considered deadly right-wing terror to be non-existent and unlikely. It was not until a failed bank robbery in Eisenach that the group was found out in November 2011. The social shock was huge. In addition to the criminal proceedings, there were numerous parliamentary committees of inquiry and personal consequences in the authorities.

Beate Zschäpe denied in court that she knew about the murders beforehand and portrayed herself as the victim of dominant men on whom she was dependent. Hardly anyone believed that. However, the interpretation of the judgment also raises questions. Some murders seem random. For example, it hardly seems possible that the trio was able to plan many days in advance in distant Zwickau to kill the police officer Michèle Kiesewetter on the afternoon of April 25, 2007 on the Theresienwiese in Heilbronn, Baden-Württemberg, and to seriously injure her strip partner.

Both were riot police in a unit in Göppingen, a hundred kilometers away. Her location in Heilbronn was just as random as her daily routine. And the plan to kill “any” policeman on the empty venue does not seem conceivable on a specific day, which had not been planned well in advance. The verdict says:

“Together they planned to split the work (…) by shooting two police officers who were arbitrarily selected by them while they were taking a break in their patrol car on Theresienwiese in Heilbronn (…) in the early afternoon of April 25, 2007.” (NSU judgment p . 208)

In addition to the question of complicity, the defense lawyers have raised further complaints. For example on the procedure. But these points are legally less complicated and the revisions of the other defendants are also within the framework of the usual legal problems.

How will the Federal Court of Justice evaluate the NSU judgment?

Revisions before the BGH are not appeals proceedings in which witnesses are heard again or evidence is viewed. The five judges of the third criminal division decide the NSU proceedings and all other revisions on the basis of the written judgment and, if necessary, other files. They check the judgment for errors of law. Was there a procedural obstacle? Or a procedural error? Have the existing laws been properly applied? For example, is Zschäpe’s condemnation as an accomplice correct?

Only in very rare exceptional cases do they complain about the findings of the lower instance in the matter, for example how the judge previously assessed a matter. This means that the BGH does not normally interfere in assessments of the lower court, unless something has obviously been overlooked, the findings in the judgment are obviously illogical or violate legal rules.

There have been numerous decisions for years regarding the complicity of an absent woman and it is conceivable that the Karlsruhe judges consider the argument from Munich to be flawless. It is also conceivable that they will use the judgment to form their own picture of the circumstances at the time and come to a different conclusion.

Which decisions can the BGH make?

If all five judges of the Senate consider a revision of the accused to be inadmissible, it can be rejected by a resolution without further hearing. So it could be that all or some of the revisions can be completed in a few days with no further procedure. Then the corresponding judgments are final.

In the case of Ralf Wohlleben, André Eminger and Holger G., this should lead to another prison sentence because the previous remand was shorter than the respective sentences. Zschäpe would remain in custody – remand custody would then become criminal custody. If the determination of the particular gravity of the guilt remained, a release on probation after 15 years in prison would be excluded.

Also conceivable – and even probable in the case of the Federal Public Prosecutor’s appeal at the expense of André Eminger – is an oral hearing before the BGH. In the meeting, the judges would discuss disputed points with the defense and the federal prosecutor’s office and listen to their legal views again. After that, the Senate would decide through a verdict. He can hold the Munich judgment, amend it or refer it back to the court in whole or in part.

For the public prosecutor’s office, revisions at the BGH are always represented by a separate revision department of the federal prosecutor’s office, also in the many proceedings that were carried out in the federal states by the local public prosecutor’s office and that come to the BGH. Proceedings in which the Federal Public Prosecutor represents his own preliminary investigation are comparatively rare, but not unusual. These proceedings always take place before the 3rd criminal senate of the BGH.

Theoretically, it is also conceivable that the BGH will unanimously decide, without an oral hearing, that parts of the proceedings must be reopened because there are serious legal errors. In such a case, the OLG Munich would probably be responsible again, but another senate.

It is uncertain whether and how many revisions of the defendants will be heard orally before the BGH. If it came to that, it would probably be a logistical challenge in Corona times. Because theoretically, not only all defense lawyers (four public defenders and one election lawyer at Zschäpe alone) but possibly also the defendants themselves as well as the co-plaintiffs and their lawyers could come to the hearing. There is seldom a large rush at oral revision negotiations at the BGH – but this would certainly be expected in the NSU trial.