German Word of the Week: Reichsbürger

Source

Before committing a racist mass-shooting in Hanau, Germany, the schizophrenic killer, Tobias R., had sent a petition (g) to the German Federal Prosecutor’s Office asking them to initiate formal legal proceedings against the shadowy “intelligence service” which was tracking, stealing, and broadcasting his thoughts. This raised the issue of how, and whether, authorities should respond to official petitions and letters they receive which strongly hint at the sender’s mental illness — especially when the sender, like Tobias R., was a gun owner. People who work for German courts and government agencies soon protested, noting that they get literally hundreds of crazy letters a week, mainly from Reichsbürger (citizen of the Reich).

Which raises the question: What is a Reichsbürger?

A Reichsbürger is a German who believes the German Reich never stopped existing (g). They believe the Reich, as recognized by the Treaty of Versailles, and in its dimensions from 1937, still exists as a legal entity. They also hold that the Federal Republic of Germany, as proclaimed in 1949 with the passage of the German Basic Law (constitution), has no legitimacy. Therefore they refuse to pay taxes to it or recognize its laws. Many Reichsbürger have drawn up their own documents and even passports, which they show when asked for ID. There’s a massive overlap between Reichsbürger and right-wing groups, and Reichsbürger have killed (g) German police. Reichsbürger groups are closely monitored by the government because of their propensity for violence.

So do the Reichsbürger have any support for their cockamamie idea? Surprisingly, the answer is “sort of”. Their main support is a passage from a decision the German Federal Constitutional Court from 31 July 1973 which states, in part (g):

The German Basic Law … assumes that the German Reich survived the collapse of 1945 and did not disappear either as a result of the capitulation or the exercise of foreign authority in German by the Allied occupying powers… The German Reich continues to exist, continues to have legal capacity, but is not capable of acting on its own because, as a whole, it lacks organization and lacks institutional organs…. Responsibility for “Germany as a whole” is still shared with the four powers. The creation of the Federal Republic did not create a new West German state, but rather simply re-organized a part of the existing German state.

Now, of course, this decision was issued by the German Federal Constitutional Court, which the Reichsbürger don’t acknowledge as legitimate. But this irony is apparently lost on them.

But what is the justification for the Court’s curious wording? Part of the answer is the Court’s desire preserve the legal basis for the reunification of Germany. The passage quoted above came from the Federal Constitutional Court’s decision on the Grundlagenvertrag, the “basic treaty” on relations between West and East Germany, which was adopted in 1972. In the treaty, West Germany gave up its claim to be the only legal representative of “Germany” as a whole, in return for concessions from East Germany. The treaty led to the diplomatic recognition of West and East Germany as independent states. The countries refused to establish official embassies, but they did establish “permanent representatives” in each others’ capital cities, paving the way for better diplomatic and trade ties.

The treaty, part of liberal Chancellor Willy Brandt’s Ostpolitik, was controversial among German conservatives, since the original West German constitution required all organs of the West German government to continuously strive toward re-unification (g) of West and East Germany. According to these critics, recognizing East Germany went in the opposite direction, since it tended to reinforce German separation, and therefore violated the constitution. From 1955 to 1970, the West German government pursued the Hallstein Doctrine, in which it argued that the West German state, not East Germany, was the only legitimate representative of the interests of the German people. The Basic Treaty represented the formal repudiation of the Hallstein Doctrine; now West Germany would not protest when other nations granted East Germany diplomatic recognition (and vice-versa).

In fact, the West German constitution itself didn’t even refer to itself as a constitution for exactly this reason. The drafters of the West German post-war constitution elected not to call it a constitution, since it would be possible for the German people to ratify a constitution only when all of them could vote freely and equally on the document, which was impossible as long as there was one part of Germany in which free and fair elections were impossible. Thus, the constitution called itself merely a “Basic Law” (Grundgesetz), and specified in its own preamble that it was intended merely as a “transitional” document.

The Federal Constitutional Court upheld the Basic Treaty of 1972, holding that it did not violate the Basic Law’s mandate to pursue German re-unification. However, to satisfy conservatives, the Court repeatedly stressed that the Basic Law’s focus on re-unification remained as valid as ever. The passage the Reichsbürger rely on is part of the Court’s attempt to split the baby: The Court is stressing that although West Germany has now taken over the functions of the previous German state entity, the Reich, this doesn’t mean that the German people, as a whole, have given up their claims to territory formerly included in the Reich. To put it more simply, the Court is saying that even though Germany was then currently split into two sovereign entities (West and East), the underlying aspiration of the German people as a whole was to exercise unified control over all of the territory traditionally considered to be part of Germany.

So the Court’s language was intended as a compromise: On the one hand, the Court recognized that the government of West Germany could recognize and trade with East Germany without violating the Basic Law’s command to pursue reunification. On the other hand, though, the Court interpreted the treaty as not giving up on West Germany’s claim to be the ultimate true representative of the German people. Yet there is also an interesting sub-text to the treaty, and the court decision. Throughout the post-war years, West Germany had been bedeviled by the question of war reparations. The Third Reich had caused unimaginable human suffering and material losses across Europe, especially in countries which were parts of the former Eastern Bloc. But should West Germany bear the cost of reparations alone, or should East Germany bear some of the blame? East Germany, for its part, claimed that since it had adopted an “anti-fascist” mode of government and was now allied with Eastern European countries in socialist brotherhood, it was no longer obliged to pay reparations to those outside East Germany.

A book (g) sums up the complex situation:

After the Federal Republic gave up its claim to be the sole representative of the German people in the 1972 German-German Basic Treaty, it became even more firmly committed to the position that it was no longer solely responsible for the obligations of the “Third Reich”, and thus forwarded demands from compensation from Eastern Bloc states to East Germany. West Germany behaved ambivalently: On the one hand, it condemned to the rest of the world East Germany’s denial of reparations to Jews living outside East Germany. On the other hand, the West German finance ministry secretly approved East Germany’s position, since otherwise other East Bloc countries could be encouraged to file claims for reparations from West Germany.

The part (g) of the Federal Constitutional Court’s opinion referring to the continued existence of the German Reich was also an attempt to avoid saddling only West Germany with the responsibility for reparations payments. The Court wanted to emphasize that West Germany was not the official “legal successor” to the German Reich, since that would imply West Germany would “step into the shoes” of the Reich, as lawyers say — i.e., that West Germany would now be automatically 100% responsible for all legal obligations incurred by the German Reich. So the Court reasoned that the German Reich — including parts which were now East Germany — still existed, but was no longer “capable of acting”. This meant, in turn, that neither of the two new German states would be automatically liable for the legal obligations of the German Reich. It doesn’t make all that much sense, but legal fictions rarely do.

So this is the story of Reichsbürger. They’ve misinterpreted a few passages of highly complex legal decisions and come to bizarre conclusions which serve their ideological obsessions. Something that happens not infrequently in modern Western societies.

[Cross-posted to my German Law blog].

Dead People, Dead Birds, and the Responsibility Silo

The New York Times has gotten rather scoldy about Germany lately. Judging by New York Times coverage, Germany is not doing enough to combat racism, anti-semitism, and right-wing violence. Nor has it fully confronted its Nazi past.

I’m not sure what the reason is for this critical undertone. Generally, American liberals find much to praise about Germany: free college tuition, universal healthcare, a deep aversion to war, generous social-welfare benefits. My theory is that the Times’ German aversion may something to do with the Times’ gradual conversion to full-scale wokeness. The Times now identifies with identity politics and American-style ethnic particularism. To a fully-woke American, Germany must seem backward indeed: after all, one of the highest-circulation German dailies just published a frontal attack on identity politics (g), something that no longer appears in major American newspapers.

Anyhow, enough speculation. The main point of this post is this article on Niels Högel, the German nurse who is accused of killing up to 300 hospital patients over a period of five years. The article singles out a certain aspect of German culture for criticism:

The number of killings and the amount of time it took for suspicions surrounding his actions to come to light have raised uncomfortable questions for Germany, including whether the same deference to hierarchy and predilection for procedure that once facilitated Nazi-era crimes allowed Mr. Högel to kill uninterrupted for so long.

According to Frank Lauxtermann, the only former colleague who testified openly about working alongside Mr. Högel, “A culture of looking away and keeping your head down” ultimately shielded the suspect….

She said Mr. Högel’s colleagues in Oldenburg had talked about him, but did not go to their superiors or lodge a complaint out of fear of being reprimanded or because they didn’t see it as their business in a country where citizens closely guard their privacy.

When another nurse in Delmenhorst told her superior she was suspicious of Mr. Högel, no action was taken and she never followed up….

“The course of events that took place on June 24 are symbolic of the failure of those responsible for their completely erroneous assessment of actual facts and the tragic results that ensued for the patients,” Mr. Schmidt said, announcing the results of his investigation in 2017.

That investigation came about only after years of pressure by family members, and led to the current trial.

Two former prosecutors from Oldenburg were investigated for failing to sufficiently investigate Mr. Högel in 2005, but neither faced charges. One is now a judge in Oldenburg.

I think the Times, for all its gimlet-eyed coverage of matters German, has a point here: There is a cluster of German cultural traits — many of them admirable — which often works against institutional accountability.

First is the German respect for privacy. You don’t pry into your co-workers’ personal affairs. You also don’t pry into their job performance, unless it directly affects you, and perhaps not even then. It’s the bosses’ job to evaluate job performance, not the co-worker’s. Complaining to the bosses about a co-worker’s performance comes dangerously close to informing on them, which immediately raises loud historical alarm bells. In both Nazi Germany and in East Germany, anonymous denunciations were often used to derail competitors’ careers. These historical memories metastasized into the corners of the German national character: complaining legitimately about a colleague’s serious mistakes on the job is, of course, not as sinister or serious as denouncing them to the secret police. But it’s the same overall genre of activity, the same kind of behavior. And thus it has Sinister Historical Overtones, and should be avoided.

Another factor is institutional. Germany’s public healthcare system is stretched to the limit; under-funding and under-staffing are the norm. A December 2018 EU report (pdf) concluded:

Understaffing in hospitals and residential homes is widespread, and the number of graduates completing vocational training falls far short of those leaving the job (due to retirement or dissatisfaction) and those which are additionally needed (due to the rising number of people in need of care). At the same time, working conditions for carers are poor, particularly in LTC: wages are low, the work is demanding and working hours are unattractive.

Accountability for medical malpractice is still limited in Germany. In the United States, a hospital can be sued for millions for negligently hiring or negligently retaining a worker who causes a serious accident. If you prove that the hospital knew, or should have known, about an incompetent employee, the hospital must pay. The German system creates less accountability, principally because (1) hospitals aren’t always liable for their employees’ on-duty mistakes; (2) malpractice judgments are notoriously hard to win; and (3) judgments are generally for modest amounts. German healthcare is still very good on average, but there are growing gaps in quality which Högel was obviously able to exploit.

And finally, there’s the “that’s not in my job description” effect. This is not solely a German phenomenon, but it’s very strong here. My job is to take care of my patients, not to make sure everyone else is. I have my tasks and my duty area, and I’m going to do my tasks within my duty area, then go home and forget about work. North Americans, in particular, notice this strong silo mentality. In a restaurant or a start-up, you do whatever is required to keep the customer happy and the business afloat. In a bureaucratic institution such as a hospital or university, the average Joe or Jane will normally do their jobs reasonably well, but feel no need to show any extra initiative.

Here’s a story. At the university where I used to work, a dead pigeon lay in front of one of the buildings. A friend of mine, also from the New World speculated on how long it would lay there. Hundreds of people walked past it every day, noticing it with disgust. But nobody did anything. Professors would never stoop to touch a dead thing. Nor would secretaries. Students reasoned that the university paid for cleaning crews, and it was their job to pick up the dead bird. But the cleaning crews were paid only to clean inside the buildings. Day after day, the cleaners wheeled their carts right by the rotting pigeon, ignoring it. The pigeon, you see, lay on an exterior brick walkway, and nobody had been clearly assigned the task of keeping that specific walkway clean.

The pigeon lay there for over ten days.

Not for nothing did Georg Christoph Lichtenberg once ask (g): “Tell me, is there any country but Germany in which people are more likely to learn to wrinkle their noses in disgust than learn to clean?”

Christin and Her Murderers — Inside a German Murder Trial

I have another blog in which I mainly talk about German law. I wrote this post for that blog, but I think the case is so interesting it deserves a spot here, too.

Poster seeking information in Christin R.’s killing

The public radio station for Berlin-Brandenburg recently released an 8-part podcast — “Christin and Her Murderers” exploring a German murder case. The podcast yields interesting insights into German criminal trials, mainly because the authors — Martina Reuter und Uta Eisenhardt — got unusual access to the main players in the case: Judges, detectives, lawyers, and even three of the defendants agreed to interviews. This may not raise any eyebrows for an American or a Brit, but this level of access is very unusual for Germany. Germans tend to be very protective of their private sphere, and German law helps them protect it.

First I’ll provide a rundown of the murder case itself, then look at the investigation and trial.

I. The Murder of Christin Rexin

The facts are mundane in some respects, but startling in others. We start with Christin (pronounced like “Christine” in English) Rexin. She was a 21-year-old woman from Lübars, a quaint village near Berlin. She loved working with horses, and was doing an apprenticeship on a nearby horse farm, the Goldnebelhof (Golden Fog Farm!). One day, a mother and son showed up to express interest in buying the place. The mother, Cornelia, worked at a bank. Her son Robin was a competitive rider on the German equestrian circuit, and owned a number of valuable horses. Robin and his mother held discussions with the farm’s owners, a divorced couple, and arranged to buy the farm, with tentative financing from a bank.

Robin and his mother Cornelia thus became Christin’s employers. The financing for the purchase fell through after a few months, but Christin fell in love with Robin, the young, self-assured businessman who loved horses as much as she did. Soon they were a couple, although the stories Robin told about his background seemed a bit inconsistent, and he was something of a braggart. His mother had meanwhile stopped paying Christin’s salary and social-insurance contributions. It became clear that Robin and Cornelia were having financial problems. They were actively trying to sell some of the valuable horses they owned. In November 2011, Christin agreed to take out a €250,000 life insurance policy in her own name with Robin as the beneficiary. Robin’s mother Cornelia would pay the premiums. They claimed their financial advisor had recommended this step as a routine precaution. Christin eventually became engaged to Robin, and the family group began searching for another horse farm to rent or buy.

And then, on April 4, 2012, something quite bizarre happened: While Cornelia and Christin were spending time in Cornelia’s kitchen, Cornelia stabbed Christin in the back. Christin defended herself. The knife wound was severe, but not life-threatening. Cornelia claimed she had stabbed Christin during a “blackout”. Needless to say, the stabbing put something of a damper on the marriage plans. Nevertheless, Christin still agreed to see Robin, although not at his house or with his mother. Meanwhile, Christin pressed charges against Cornelia, but the police — incredibly — suspended prosecution, believing her convenient story of a blackout.

Meanwhile, Christin, her family, and friends kept discovering inconsistencies in just about everything Robin said: his supposedly deceased ex-wife kept posting on Facebook, he claimed to have participated in riding tournaments where nobody remembered seeing them, etc. He even claimed to have served in a secret special forces regiment in the German Bundeswehr in Afghanistan whose mission was to “kill and destroy” (g). Robin appears to have had some charm and self-confidence, but was also clearly a pathological liar. Nevertheless, Christin refused to break off all contact with him. Meanwhile, his mother kept taking out more and more life insurance policies on Christin, eventually adding up to more than €2 million Euro. It was unclear who signed these extra policies in Christin’s name.

Through the equestrian scene, Robin befriended Tanja, a young, horse-loving butcher with a troubled past growing up in care homes. After laying on a bit of charm, he came right out and said he wanted to help her kill someone to collect insurance money. In another plot twist too ludicrous for fiction, she agreed on the spot. She later claimed she had been manipulated and controlled by Robin, but didn’t deny he had promised €50,000 to her and whoever else she was able to recruit. For the second attempt on Christin’s life, Robin gave Tanja champagne laced with potassium chloride. Tanja was supposed to feign interest in buying one of Robin’s horses and, when the deal was concluded, offer her champagne to drink. After a few sips, however, Christin poured it out, claiming it tasted off. The second attempt to kill Christin thus failed.

For the third attempt to murder Christin, Robin and his mother pulled out all the stops. Robin, much to his later regret, texted Tanja that “the third time cannot be allowed to fail.” Robin asked Tanja if she knew someone who might be willing to pull off a hit. She said her brother Sven, a petty criminal who had spent time in prison, probably would. Sven in turn recruited Steven, who also had a criminal record, and a plethora of “social problems” so vast he lived in an assisted-living facility. Together, they lured Christin to a parking lot late at night in her hometown of Lübars, and one of the crew (it’s still not certain which one) strangled her to death.

The case wasn’t difficult to solve, although investigators had a hard time proving exactly who had played which role. They immediately focused on Robin, and discovered that his mother had stabbed Christin some months beforehand. They quickly twigged to Tanja’s involvement, and through her Sven and Steven. All five were charged with murder or abetting murder (which carry the same punishment under German law).

II. The Investigation and Trial

The podcast explores the detectives’ tactics and the court proceedings in detail, something which is surprisingly rare in Germany — a country which is obsessed with (generally unrealistic) murder mysteries. When you’re arrested for a serious crime in Germany, you will be interrogated by the police. They are obliged to inform you that you are required only to identify yourself. You are not required to answer any further questions without the presence of a lawyer. Yet the rules are nowhere near as strict and arbitrary as they are in the UK or the USA. Interrogations do not need to be recorded, as in the UK; detectives prepare a written record based on memory. Nor do police need to recite a specific speech concerning a suspect’s rights and obtain a formal written waiver, as they usually do in the USA. German police can advise you that you’ll fare better in court if you cooperate, and invariably do so. They often try to establish a friendly and laid-back tone to the interrogation. Suspects are not handcuffed or restrained unless they seem to present a threat. German courts probe deeply into how cops get confessions, so third-degree tactics — lies, threats, manipulation, especially violence — are seen as counterproductive, and rarely used.

To build rapport, a detective might chat at length about common interests such as soccer or food or television. One detective who questioned Robin quizzed him about horses, because he was genuinely interested in horses, and Robin knew quite a bit about them. What could be more natural? Later, he told the reporters about Robin: “Oh sure, I knew he was lying in lots of what he said to me, but then again, he’s got a right to do that.” One key in the questioning of Tanja was the fact that one of the detectives smoked. He joined her outside the precinct for smoke breaks, and appealed subtly to her conscience, person-to-person.

The main purpose of interrogations is to obtain a confession. If that proves impossible, then detectives try to pin the suspect’s story down early, so that they can later point out inconsistencies if they arise. A caveat: As is the case anywhere, police tactics vary in Germany depending on the officer is and the suspect. All the suspects in this case were ethnic Germans, and many had no previous criminal record. Thus, they almost certainly received gentler treatment than, say, an immigrant with a long criminal record and limited German. In fact, this case seems to contain a specific example of what you might call “German privilege”. It’s difficult to imagine that the local authorities would have suspended prosecution in a serious stabbing case based merely on Cornelia’s uncorroborated claim that she had a “blackout” if the Cornelia had been a foreigner, rather than a well-spoken German lady who worked in a bank. But even with this caveat in mind, stories of brutal third-degree interrogations are rare in Germany. German police simply don’t have the win-at-all-costs mentality that often drives American police to bend or break the rules they feel restrict them. If a suspect strictly refuses to cooperate, they’ll just give up trying to get a statement, and hope other tactics will solve the case.

Nevertheless, German police do get suspects to talk about the crime, and often to confess, with surprising frequency. There are a few reasons for this. First, German law is quite lenient in international comparison. A suspect in a country which imposes 10 years in prison for crime X is going to be much more circumspect than one in a country where crime X is usually punished by 2 years with a suspended sentence. Second, German judges are often suspicious of confessions, and will explore the circumstances under which they were given. This is part of the “duty of investigation” (Pflicht zur Erforschung) which requires judges to independently establish all relevant facts of a case. Did the suspect confess to protect or appease a third party? Does her confession square with the known facts of the case? If not, why not? Even a full confession which squares with the facts will not prevent a later full examination of the facts of the case, during which the defense will be able to make its own arguments. Even if a case is settled by a plea bargain, the judge is still obliged by law (g) to carefully examine the circumstances of the confession, although some overburdened judges cut corners here.

Perhaps the most important reason for the high rate of confessions in German cases is that suspects know they will receive more favorable treatment from the judge in their case if they come forward. In the Christin R. case, Tanja, Robin, and Steven all decided to talk to the police. Tanja gave a full account of everything that happened, saying she wanted to “get the pictures out of her head”. Steven — who talked so quickly and with so much slang that detectives had trouble keeping up with him — corroborated much of what Tanja said, but claimed Robin, not he, had strangled Christin. Robin, for his part, provided a carefully curated and selective account, confirming facts which he knew could be verified, but denying any murder plot. He had also tried to carefully arrange an alibi for himself by visiting a gas station.

After a long investigation came the trial. It was held before a Schwurgericht, an untranslatable term which is officially rendered into English as a “criminal division with lay judges”. It originally meant court with twelve “sworn” jurors, but is now composed of three professional judges and two lay judges (Schöffen). It is reserved for the most serious offenses involving the death of a victim. It is still not allowed to record criminal trials in Germany, but the podcast’s authors were in the courtroom and provided a careful account. The trial opened, with the reading of the indictment. Directly after this, the court turns to the defendants and asks them to provide their personal information.

After they have done so, the court asks them if they want to make any comment on the case. At this point, an Anglo-Saxon criminal defense lawyer’s hair would catch fire. Speak informally, directly to the judges in the case, right there in open court? Clearly, we are in another procedural universe here, one with many fewer strict rules and formalities than in England or the UK. Of course, defendants aren’t obliged to make a statement at the beginning. German law respects the presumption of innocence and the right to silence. In this case, Tanja decided to make a full statement in open court at the beginning of the case. She explained her version of exactly how the crime occurred, and expressed remorse. She had been advised to do this by her lawyer, with an argument like this: “You already said all this to the detectives, so the judges are going to find out about it anyway. This way, you get out ahead, portraying yourself as the only member of the conspiracy willing to come right out and be honest from the beginning, come what may. This will help speed the trial and earn the judges’ respect.”

After the initial statements comes the wearisome task of establishing what happened. As noted, German courts have an independent duty to probe as deeply as possible into all the circumstances of a crime. The judges dominate the proceeding, directly questioning witnesses and commissioning expert testimony. There is no clear “prosecution” and “defense” case — each side merely intervenes occasionally to highlight facts it considers helpful to its side. Trials often last for months or even years — they’re not held day after day, but rather in a sporadic series of sessions. In the Christin R. case, there were numerous seemingly minor inconsistencies in the testimony and evidence — Tanja said the attacker was wearing a certain color jacket, but another witness said it was a different color. Fiber evidence was inconclusive. There was no DNA evidence. In an Anglo-Saxon courtroom, these minor weaknesses would become fodder for back-and-forth argument by the lawyers. But in German courtrooms, the judges are obliged to try to resolve these seemingly minor inconsistencies in mind-numbing detail.

Finally, after the relevant facts had been established, Robin and his mother Cornelia decided to testify. In German courtrooms, defendants are not obliged to testify under oath because, as any professor or lawyer will tell you, “they’re going to lie anyway, and have a right to do so.” As best they could, Robin and Cornelia tailored their account to match the facts — Robin’s damning Internet searches for poison were meant to protect his horses from eating the wrong weeds; Cornelia had taken out all those life insurance policies merely as a precaution; Robin only wanted to sell Tanja a horse and had no idea of “her” plan to murder Christin. To call their versions unconvincing was an understatement.

Eventually, after all the suspects were heard, and the judges retired to deliberate. Eventually, they returned their verdict (g). All five of the defendants — Tanja, Robin, his mother Cornelia, Tanja’s sister Sven, and his friend Steven (who probably actually committed the murder) were found guilty. Robin and his mother were sentenced to life in prison with a special finding of especially severe culpability (besondere Schwere der Schuld), which means they will have to stay around 25 years behind bars. Sven and Steven were sentenced to life without a special finding, which means they’ll become eligible for release in around 15 years.

As for Tanja, the judges made use of §46a of the German Criminal Code, which allows sentence reduction if the offender “voluntarily disclos[es] his (sic!) knowledge” of the offense. She received not a life sentence, but a term of fourteen and one-half years. With good behavior, she might well be released in half that time. Some of the defendants appealed their conviction, but on 9 March 2016, the Supreme Court of Justice (g) dismissed the appeals as “evidently unfounded“. At this point, the verdicts and sentences became formally legally binding.

As I mentioned above, Cornelia, Robin, and Steven all agreed to be interviewed from prison. This is quite rare in Germany, both because prisoners generally want to avoid calling attention to themselves, and because prison authorities often deny access to prisoners because it may “hinder resocialization”. Robin and Cornelia apparently wanted to increase their chances of early release by making a show of coming to terms with their sentence. However — at least from the edited excerpts presented in the podcast — they still seem to deny the charges against them.

Interestingly, the authors of the podcast, after all their research, believe that important aspects of the case still remained unsolved, and attribute this to gaps in the investigation and the judges’ examination during trial (g). I personally don’t see this, from an American or British perspective, the evidence is much more than adequate for conviction. German law punishes abetting the crime identically to committing it, so the various levels of involvement are not particularly important, as long as there is evidence the abettors had a common purpose and plan. But the German criminal justice system is oriented toward finding out the entire truth, as far as possible.

The Curious Case of “Owl”, the Unknown Prisoner

German environment activists have been protesting the planned destruction of a part of the Hambacher Forest to allow the expansion of a coal mine. There have been many arrests, injuries, and even a death (a journalist fell from one of the treehouses activists have built).

One of the activists was tried and convicted of attempting to kick a police officer. The first remarkable thing about this case is that, at the time of the assault, her hands and feet were bound (g). Officers gave conflicting accounts of how exactly she planned to kick one of them in this position. Another odd thing is that the judge gave her an extremely harsh sentence by German standards, 9 months’ imprisonment without probation. She was just released from prison.

But the most curious thing about the case, at least to me, is that the court never found out who she is. She had no identification with her when she was arrested, and refused to cooperate with police and court attempts to identify her. She’s still known only as Eule (Owl). I know of no other criminal case ever in which the defendant was arrested, put on trial and prosecuted, without their identity ever being confirmed.

This shows you, on the one hand, how powerful Germany’s obsession with privacy can be. If you’ve never been arrested, your fingerprints will not be on file anywhere. Even cops can’t force you to reveal your identity, or take other steps to investigate and determine who you are. So if you stubbornly refuse to cooperate, there’s no way even the combined force of the German state can find out who you are.

On the other hand, this seems like yet another rule of German criminal law which is going to have to be tightened. This case involved an arrest at a protest, which isn’t a major threat to public safety, in my view. But what if word gets around that you can hide your identity from the state forever? Do we want violent criminals to be able to be convicted, and even serve their sentence, and then be released in to the community without anyone knowing who they are?

I’ve argued here before that German criminal laws were written in an era in which Germany was a relatively homogeneous, tight-knit society with a broadly-shared sense of right and wrong, high social trust, and low crime levels. Believe it or not, German criminal law is based on the idea that accused criminals will cooperate with the system, and in return the system will treat them more like wayward family members than dangers to society. Confess, my son, and we will help you get back on the right track.

This system was never designed to foil active attempts to undermine it by clever, determined criminals — especially foreigners who don’t share, and may not even be aware of, the presumptions and ethical world-view of the average German. If Germany wants to achieve meaningful sanctions and deterrence of these folks, it’s going to have to tighten its laws.

The Bielefeld Sandwich Poisoner and the Meaning of “Especially Culpable”

One of the strangest cases in modern German crime has just ended in a life sentence (g) for the defendant, Klaus O. Klaus was a metalworker in a medium-sized firm near Bielefeld. He’d worked there for 38 years.

A few years ago, people at the firm started falling seriously ill for unknown reasons. They had been poisoned by substances such as lead acetate. One was left in a coma, others with permanent kidney damage requiring dialysis.

One of Klaus’ co-worker noticed a suspicious white substance on his sandwich. He advised the firm management, which installed a security camera. The camera caught Klaus O. poisoning his colleagues’ lunches. The authorities suspect he poisoned up to 21 people.

Klaus never made a statement to the authorities, and never revealed his motive. He seemed to have chosen his victims more or less at random, and there was no evidence he had grudges against them. A psychiatrist appointed by the court to evaluate him said his attitude was like a scientist conducting “experiments”. The Bielefeld Regional Court sentenced Klaus to life in prison for attempted murder and a series of other crimes. The Court also made a special finding that he was ‘especially culpable’.

To understand why this is important, we need to go in to German sentencing law. In Germany, ‘life’ in prison is a specialized legal term. In 1977, the Federal Constitutional Court of Germany handed down the Life Imprisonment decision (g). The Court held that a life sentence was constitutional under German law, but that, to respect human dignity, a prisoner sentenced to life must always retain some chance of being released at some time. So absolute life without parole is unconstitutional.

The German parliament eventually created a new system of punishment to implement the Court’s decision. The law now provides that someone sentenced to life in prison must be considered for parole after serving 15 years of their sentence, and parole should ordinarily be granted if, after serving that time, there is a “favorable prognosis” for the defendant to be re-integrated into society. However, this rule can be superseded if the trial court finds that the defendant’s actions showed a “special” or “unusual” level of culpability (besondere Schwere der Schuld, literally: An unusually heavy load of guilt). According to a recent decision (g) of the Federal Supreme court of Justice, a finding of special culpability “requires that the overall context of the crime, including the personality of the offender, deviates so far from the court’s experience of ordinary murder cases that the release of the prisoner on parole after the minimum of fifteen years appears inappropriate, even if the defendant has received a positive prognosis.”

The Bielefeld court went even further, though, and entered findings which can later be used to impose post-sentence protective custody (Sicherungsverwahrung). This allows offenders who have served their official prison sentence to be kept in secured ‘treatment’ facilities if a court finds that they have “a tendency to commit serious crimes which pose a threat to the community.” Formerly, German courts could order this sort of preventive detention when an offender was about to be released from prison, even if nobody had raised the possibility of preventive detention when the offender was initially sentenced for his crime. The law allowing “retroactive” preventive detention was then successfully challenged in the European Court of Human Rights, triggering a series of German court decisions and legal reforms, as the Strasbourg Observer blog notes:

Since 2009, the European Court had to examine in several cases the compatibility of German legislation on detention of serious criminal offenders for preventive purposes. In its judgment of M. v. Germany, the Strasbourg Court characterized it as a “penalty”, applying to it the guarantees of Articles 5 and 7 of the European Convention. The preventive detention must be regarded as a “penalty”, on the one hand because its aim is not only preventive but also punitive and, on the other, because of the gravity of the measure provided by the German Criminal Code. Following this judgment, and called by the Federal Constitutional Court to completely recast the system (see BVerfG, 4 May 2011, 2 BvR 2365/09, BVerfGE 128, 326), a new law has been adopted on 5 December 2012 (Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung). It is in this context that in 2016, the Court rendered the Bergmann judgment, which constitutes a turning point in its position. This was the first case in which the Court examined the compatibility of the Convention with the new German legal framework on preventive detention. The Court stated that, since the measure is ordered for therapeutic purposes in respect of an applicant suffering from a mental illness, the nature and purpose of the measure change substantially, to the point of no longer as amounting to a “penalty” (para. 182). Preventive detention is therefore exempt from the guarantees of Articles 5 (1) and 7 of the Convention.

To sum up the current state of the law in plain(er) English, German courts can still order offenders detained after they have served their official prison sentence, as long as (1) the court which handed down the initial sentence enters a finding that preventive detention may later be necessary; and (2) preventive detention after sentence is done for therapeutic purposes instead of punishment and conditions in detention are sufficiently “distanced” from ordinary prison confinement (Abstandsgebot).

Germany’s laws on preventive detention are controversial, as the judicial back-and-forth described above makes clear. However, the question is: what are the alternatives for protecting society from especially dangerous people? The most lenient approach is to simply release them after a fixed term, and accept the fact that some offenders (not that many) will commit fresh crimes. The American approach is to hand down either death sentences or life-without-parole sentences which afford prisoners no hope of release at all, no matter how much they change while incarcerated. The German system represents a middle-ground: Monitor how the offender does in prison, and then decide, shortly before release, whether to confine him afterward for “therapeutic” purposes.

In any case, the Bielefeld sandwich poisoner received the highest penalty allowed by German law: After serving 15 years of his sentence, he will not be immediately parole-eligible. The court will assign an additional period of parole ineligibility. And even after he serves out the additional period of parole-ineligibility, he may be kept in preventive detention. Given his age, then, Klaus will probably spend the rest of his life behind bars.

German Justice in Action: Acquitted in 20 Minutes

Occasionally, when I’m in the neighborhood, I like to drop in and watch a German trial. German court proceedings, especially criminal proceedings, are governed by the “openness principle” (Öffentlichkeitsgrundsatz), which means that anyone can visit them.

Today it was the Amtsgericht, which is where most criminal trials in Germany are held. You have to pass through security screening, but it’s fairly routine. The court building, quite new and handsome, is usually mostly empty; most of the actual business is done inside courtrooms and offices. People arrive and leave to participate in trials without hanging around.

This trip to the courthouse was pretty interesting, because I got to see a complete trial from beginning to end, and it only lasted 20 minutes. The defendant was a Kurdish guy in his late 20s, who arrived with a few family members. The trial began with the prosecutor reading the indictment, which was “resisting a law officer” (Widerstand gegen Vollstreckungsbeamte). The prosecutor was a young lawyer who seemed pretty detached — this was just one of several cases he was going to handle, and, seemingly, not a very important one. After the indictment was read, the judge — also a young male lawyer — turned to the defendant and asked for some basic background information, which the guy gave. (Judges and prosecutors in district courts tend to be young; it’s the first step on the judicial career ladder, which starts directly after law school).

The judge then asked if he had anything to say, while reminding him he wasn’t obliged to say anything. The young man gave a short statement: the charges were totally unfounded; he never kicked or punched any law enforcement officer, and the video evidence would prove it. He admitted he was “aufgebracht” (upset), but that’s because the police had ordered the demonstration to be dispersed “because of the flag” and then blocked in some of the demonstrators with a cordon.

Nobody mentioned it at trial, but this was a pro-Kurdish demonstration (g) in Düsseldorf which took place on 4 November 2017 which devolved into chaos and resulted in numerous injuries. An administrative court had authorized the demonstration, but forbidden demonstrators to display images of Abdullah Öcalan, the leader of the militant Kurdish nationalist PKK party, who is currently imprisoned in Turkey. The PKK has been banned in Germany since the 1990s, and this ban has been interpreted to include images of Öcalan. About 6,000 demonstrators showed up, and waved flags with Öcalan’s image. The police then ordered the demonstration dispersed, and things got ugly.

At the trial, though, the only question was whether the defendant had actually resisted a law officer. The judge was supposed to call a witness, presumably a cop, but the witness was sick. After a brief conversation, the judge decided to go ahead anyway. He whipped out a video disc containing a film of the encounter, and played it at the witness stand, so the defendant and the prosecutors could both see (but us visitors could not). Eventually, everyone agreed that the video only showed the defendant shoving a private security guard, not a law enforcement officer, and that even this didn’t show anything damning, since the situation was chaotic, and the crowd was milling about, shoving and pushing against the police cordon.

The judge asked the prosecutor for his plea, and the prosecutor stood up and basically said that in light of the video evidence, he had no choice but to argue for the defendant’s acquittal. The judge agreed, and asked us all to rise, then entered the official verdict. The defendant walked out of court a free man.

I find the informality of German court proceedings interesting, because it’s such a stark contrast with American courts. The judge controls the proceeding and asks common-sense questions to gather information. The defendant can show up without a lawyer, as this defendant did, and speak for himself about the charges directly to the judge. The judge also doesn’t engage in elaborate, scripted questioning routines to remind the defendant of his or her rights. Most judges don’t insist on much formality. As soon as lawyers and judges leave the courtroom, they remove their black robes and walk out of the courthouse looking like normal people. There’s not even a barrier between the witness stand (which is in the middle of the room, facing the judge), and the chairs for observers and visitors. When the defendant and his family left the courtroom, obviously happy with the outcome, they called an informal Tschüss (“Bye!”) to the courtroom personnel, and nobody was offended.

Germany may have a reputation for unnecessary bureaucracy, but German criminal trials belie this stereotype. Of course this was a low-level case, and more important trials will be more formal and have more security. But even those never approach the rigid, rule-bound style of American criminal justice. The guiding principle of a German trial is to quickly find out what the important issue is and decide it without a lot of fuss and bother. This is why many American observers, once they understand how the German justice system works, come away impressed with its no-nonsense efficiency.