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Germany: "Terrorist" trial reveals lack of evidence after two years on remand

28 March 2012

Instead of proving the guilt of the people charged with "membership of a terrorist organisation", the Berlin RZ trial is starting to reveal questionable police and prosecution methods and apparent bias of the court. Civil liberties groups warn of a miscarriage of justice and demanding the release of the accused.

More than five months after the second start of the trial against five people charged under Germany's anti-terrorist regulations (see Statewatch vol 11 no 2), demands are increasingly being voiced to halt the proceedings and free the accused. The Berlin trial, on grounds of "membership of a terrorist organisation" was contested from the start, on the grounds of serious doubts about the credibility of Tarek M., the only witness. Six people were incriminated by the alleged former member of the "Revolutionary Cells" (RZ); one of them, Lothar E., is resident in Canada with an outstanding extradition procedure against him. Tarek M.'s evidence however has proven to be contradictory and was obtained using questionable police and public prosecution methods under the Crown Witness Regulation (CWR). The CWR grants lighter sentences and financial support to people charged with severe crimes, if they incriminate others enabling the prosecution to secure more convictions. The terrorist organisation referred to, the RZ, conducted several bomb attacks against buildings and shot two officials working in the asylum procedure process in the 1980's.

The second attempt to try the accused started on 17 May this year, after the first attempt (from 22 March to 12 April) was interrupted after three days, when the Supreme Court granted the request by the Bundesanwaltschaft (BAW) to link the prosecution of Rudolf S. to the other four people in Berlin and ordered a retrial. The proceedings so far have been marked by many irregularities and arguments between the court and the prosecution on one side, and the defence on the other. Four of the five accused have been imprisoned on remand for almost two years now. Axel H., Harald G. and Sabine E. were arrested on 19.12.99 and Rudolf S., has been imprisoned since 14.11.99, before he was acquitted of having taken part in the bombing of the OPEC conference in 1975. He was released after his acquittal, but imprisoned again, on grounds of being the "ringleader" of the RZ, which, the prosecution argued, had a special cell in Berlin. The court has repeatedly denied applications for bail.

The charges

Sabine E., Matthias B., Harald G. and Axel H. have been charged with "membership of a terrorist organisation", Rudolf S., who was acquitted of that charge in Frankfurt on 14 February this year, was recharged with being the "ringleader" of the same organisation. All are charged with having planned a bomb attack on the Foreigner's Office dealing with social security matters for asylum seekers (Zentrale Sozialhilfestelle für Asylbewerber, ZSA) in Berlin in 1987. Matthias, Harald and Axel are further charged with a bomb attack on the Siegessaeule in Berlin. Central to the trial are two incidents, which are statute-barred crimes and therefore cannot be included in the charges, but in relation to which evidence is heard in great detail in court in order to prove the "membership" charges. These are the shootings of Harald Hollenberg (the former chair of the Berlin Foreigners Office, October 1986) and Günter Korbmacher (the then presiding judge of the Federal Constitutional Court, September 1987). Although these crimes are now under the statute of limitations, the prosecution has argued they represent the "dangerous nature" of the RZ, and therefore apparently the dangerous nature of the suspects.

Several aspects to this trial have been highlighted by civil liberties groups and defence lawyers as grounds for dismissing the case. On the one hand, these are related to the special provisions of Germany's terrorist legislation which have led to the violation of the legal principle of a fair trial in that the defence is denied access to relevant evidence by the prosecution. On the other hand, it has become clear during the hearings, that there are serious questions as to the prosecution's and police conduct, the credibility of the crown witness, as well as the court's impartiality.

Serious questions raised as trial continues

The conduct of the court has firstly been marked by an unduly harsh treatment of the accused. The accused, all of them in their 50's, had stable living and working conditions before their arrests and have showed no signs of absconding. Yet, the court has rejected the numerous appeals by the defence for the release of their clients. In the case of Sabine E., severe migraine attacks throughout the trial period, have not been considered by the court as a reason for discontinuation of her imprisonment. An individual assessment with regards to bail has not taken place. In the refusal for bail, even after the legal remand limit of six months had long been served, the panel of judges declared:

"In the face of the importance of the matter and the expected sentence in case of a conviction, the remand period that has already been served, with regards to all the accused, does not amount to further imprisonment on remand being unreasonable."

The legal provision allowing for the extension of the legal limitation to imprisonment on remand is given by Germany's special anti-terrorist provision paragraph 129a of the Criminal Code (see Statewatch vol 4 no 4, vol 9 no 5, vol 10 no 1, vol 11 no 2 for details on the provision and its application by the state). With the argument that those charged are potentially dangerous, and the risk of absconding is high due to the expected sentence, there have been cases with people having spent several years in prison on remand, often for the case to later be dropped on grounds of lack of evidence. Paragraph 129a further restricts the right of the defence to have access to all the relevant files from the prosecution, a restriction which, as is seen in this trial, has been used by the prosecution and investigating authorities to suppress vital evidence.

Secondly, the trial has been marked by a peculiar hearing of evidence. Out of 31 trial days to the time of writing, Tarek M., the only witness at this trial, has only been heard ten times and the court has declared it was unlikely he will be heard again until next year. In large part, this is due to the court's refusal to grant a stay of proceedings to the defence, despite the fact that vital evidence on the crown witness was only recently handed over to them and will take time to be examined. Although not allowing for a stay of proceedings, the court has however, interrupted the cross-examination of the witness. The rest of the hearing has so far been taken up by protracted legal arguments, police officers giving details on the statute-barred crimes and the interrogation of witnesses by presiding judge Hennig on the same questions.

The order of witness hearings is furthermore influenced by the BAW. Many of the days the crown witness was heard, time was taken up by legal argument. On the first day of his evidence one of these arguments dealt with his right to silence: when the defence asked the crown witness what they had talked about when he took up the BAW's offer to become a state witness, he replied: "I am not allowed to comment on this". After protests by the defence,lawyers the court supported his right to silence, claiming that this question was related to the Witness Protection Programme.

However, the defence argued that it is the circumstances under which Tarek M. became a crown witness, that is the problem. Tapes of the interception of Tarek M., which the BAW only recently handed over to the defence show that he was put under considerable pressure by the BAW and the Federal Office of Criminal Investigation (Bundeskriminalamt, BKA) to deliver new information in order to lessen his own sentence. Further, the charging of Tarek M. with "membership of a terrorist organisation" and the publication by the BAW of these allegations, led to him losing his job, putting him under financial strain. Under the witness protection programme, as part of the CWR, Tarek M. is now receiving 2400 DM every month, as well as rent, health insurance, car rental and telephone costs. Even some of his old debts have been paid off by the state. In December 2000, after a court case that only lasted four days, Tarek M. was sentenced to two years on probation, leaving the court as a free man.

Tarek M.'s evidence to the court has proved to be contradictory, in particular with regards to his involvement with the terrorist group RZ. His former girlfriend Karmen T. told BKA officers at the time of his arrest, that he had not only helped prepare the attack on Korbmacher, but that he had actually shot the judge himself. According to Karmen T., Mousli told her he was involved in the attack on the ZSA and in other planned attacks and that he continued to grant "small favours" to the group even after he had left it. Further, Tarek M. had to review statements on his finances after being confronted by the defence with his ex-partners assertions that they had suffered from continuous financial insecurity, with not infrequent bailiff visits due to unpaid debts.

He also seemed to have confused details of the attacks the accused are being charged with - or rather, cannot be charged with due to statue limitations - that supposedly support the charges of "membership". Some of these confusions relate to the alleged attackers themselves: Harald G., Tarek M. claimed, was involved in the attack on the ZSA in 1987. The former however, has a strong alibi - he was in police custody at the time. Sabine E., who Tarek M. incriminated in the Hollenberg case, bears no resemblance to the attacker, who (as a BKA officer confirmed in court on 26 October) was described by the victim as round faced, stodgy and "not good looking at all". Sabine E. does not match this description at all.

Related to the questions surrounding the credibility of the crown witness, is the handling of vital evidence in the case. During the first trial days, the defence found out that Tarek M. was given extensive insight into BKA and BWA files after his arrest by the same authorities, a very unusual practice, in particular for procedures under the anti-terrorist legislation. Since his arrest, Tarek M. has been continuously presented with the results of the BKA investigation into the RZ and the attacks. The defence argues that this, together with repeated interrogations and "talks" with the BKA and BAW, will have made his statements a mixture of learned, imagined and possibly remembered facts.

The defence has still not received all the relevant evidence from the investigating authorities, including transcripts of Tarek M.'s interception by the BKA. Defence lawyers have made requests for the missing tapes and records, and have accused the BAW of suppressing vital evidence. Yet, the court has abstained from either pressing the BAW on this matter, or interpreting the evidence (1,539 tapes resulting from the interception of the crown witness since Autumn 1998) as vital to the trial. When at the end of August, the defence finally received 528 and later a further 56 tapes and realised that they contained relevant evidence, they requested a further 955 tapes and 23 written transcripts on 13 September. They put in an application for a stay of proceedings at the same time.

On 27 September, the defence extended the reasoning for their application for a stay of proceedings: whereas initially, the application was meant to give the defence time to hear all the evidence (over 700 hours of tape), a preliminary hearing of tapes showed that the transcripts were incomplete and many of the tapes hadn't been transcribed at all. Further, the BAW had not provided copies of the tapes, making a parallel examination impossible. Both applications were rejected by the court.

The police lie and the BAW "declares war"

The BKA justified the suppression of evidence with the reasoning that they thought the tapes irrelevant to the trial. Given that they resulted from the interception of the only witness at this trial, and could as such provide important information, not least on his becoming a crown witness, the defence was surprised by this interpretation of the evidence. Indeed, a preliminary examination of the tapes by the defence had already revealed that the BKA had apparently lied to the court. They claimed that they had put a halt to the interception of Tarek M. on 3.5.99. The tapes have proven that Tarek M. continued to be intercepted between September 1999 and January 2001, just before his arrest, and during the time that he decided to become a crown witness. The defence argues that the tapes portray the extent to which the BKA and the BAW manipulated and pressurised him into giving evidence. On 19 September 1999, Tarek M. complained to his mother that the BKA was intending to destroy his "civil existence" and that they forced his employers (German Karate Association) to give him notice as a trainer with the threat that they would cut all state funding for the association. The court continues to deny the importance of the interception tapes with regards to the charges brought and the credibility of the crown witness.

Finally, the trial has been marked by the exceptional hostility of the BAW towards the defence, culminating in a "declaration of war". After Sabine Studzinsky and Andrea Würdinger, defence lawyers for Harald G., had argued that the tapes the BAW had withheld from them for such a long time, constituted vital evidence, public prosecutor Bruns read out a declaration of war against the two lawyers, as they were aiming at the "total destruction of the civil existence of the crown witness". He then proceeded to tell the two lawyers that they were obviously "not capable" of examining the tapes.

The basis for this attack was apparently the assertion by the lawyers' that the tapes contained important evidence, referring to the crown witnesses financial situation. In an embarrassing move, the public prosecutor had to revoke the allegation that the lawyers had falsely claimed that one conversation between Tarek M. and his former girlfriend was missing from the tapes after presiding judge Hennig conceded that it was in fact she who had falsely assumed the conversation was missing. With regards to the intention of the lawyers, Studzinsky and Würdinger presented a detailed response to the allegations the next day, showing that their aim throughout the trial has not been the destruction of the moral or financial integrity of the witness, but to reveal that the evidence the BAW and the crown witness have presented so far, has consistently been incomplete and contradictory.

In face of the long remand periods of the accused and the contradicting evidence of the only witness to this trial, the question arises, what exactly the trial has dealt with so far. The simple answer is, not much. Except Tarek M.'s allegations, none of the evidence heard has contributed anything to the identification of alleged RZ members. Statements by witnesses to the attacks on Hollenberg and Korbmacher, including the deceased judge himself, describe the attackers as entirely different from those accused in the present trial.

A "small Schmücker trial"

The trial has been described by Undine Weyers, a colleague of defence lawyers Studzinsky and Würdinger, as a "small Schmücker trial". The Schmücker case, which lasted from 1974 until 1991, when the presiding judge of the 18th Criminal Division in Berlin finally dismissed the case on grounds of the intense "involvement and influence of the regional [Berlin] internal security services [Verfassungsschutz]", was also based on a single crown witness. Ulrich Schmücker, who was arrested under anti-terrorist legislation and turned crown witness, was found dead in 1974, after he attempted to re-enter the left scene in Berlin after receiving death threats. Michael Grünhagen, who was once described as "our best man" by the Berlin Verfassungsschutz (VS) and recruited Schmücker (and many others) as a crown witness, led the prosecuting authorities to six people living in a commune in Wolfsburg, after which they were put on trial.

Twelve years after Schmücker's murder, and four appeals later, it was revealed that the VS itself was heavily involved in the case, that they knew of the death threats and that they stopped the observation of Schmücker on the day of his death. It was revealed that undercover VS agents and informants were implicated in the murder plans, and that the VS was connected to the murder weapon. Altogether, the trial lasted 16 years, with one of the accused spending 8 years in prison on remand. The only conviction in this case was Jürgen Bodeux, the crown witness, who, according to research by the defence lawyers in the Schmücker trial, was most probably an informant for the secret services. Bodeux spent two and a half years in prison for murder, whilst his former friends received very high sentences before they were finally freed on appeal.

Weyers draws parallels between the miscarriage of justice in the Schmücker case and the present trial, in particular with regards to the evidence presented to the court, where "in the beginning, there was an apparently complete story, which however, keeps falling apart as the trial proceeds and ever more details are revealed, so that in the end the story is different". On 11 October, the defence lodged a motion for dismissing the panel of judges on the grounds of bias. A decision will be taken by the First Division of the Criminal Court.

In their motion the defence outlines how in the court's rejection of a stay of proceedings for the defence to examine the interception tapes, the judges unquestioningly repeated the same arguments as those of the BKA, namely, that the tapes did not constitute vital evidence to the trial, and were therefore neither relevant for the establishment of guilt, nor necessary to follow the obligation to adhere to legal principles in court. In particular, the defence criticises the court for taking this decision without having fully examined the tapes itself, thereby presupposing the relevance of unheard evidence according to the interpretation of the investigating authorities. Furthermore, past rulings have laid down the granting for a stay of proceedings if relevant evidence is released by the investigating authorities to the court only after the trial has started:

"If files or other evidence is only presented by the investigating authorities during the main proceedings, and if it cannot be ruled out that the accused could have formed his defence case differently with the knowledge of the evidence presented later, the proceedings should be stopped in order to grant him the possibility to prepare his defence with the use of the newly presented and relevant files comprehensively and uniformly in relation to the accusations against him." Regional Court Duisburg, Decision from 16.7.83 (StV 1984, 19f.)

Concerns expressed by the campaign to free the accused has prompted a second international delegation to observe the trial beginning on 19 December. The international group of lawyers will visit the prisoners and attend the court on 20 December, holding a press conference the same evening. The last time that the Group of International Trial Observers (Frances Webber, UK based lawyer and member of the Institute of Race Relations; Saskia Daru, member of UNITED; Pierre Jourdain, from the Fédération des Association de Soutien aux Travalleurs Immigrés; Marcel Bosonnet, Swiss-based defence lawyer and member of the Democratic Lawyers Zurich and Sean McGuffin, Irish jurist and author) attended, they were not allowed to take pen and paper into the court room – for "security" reasons. See www.freilassung.de for background material: press coverage, chronology of events, applications by the defence and responses by the court, public prosecution declarations and reports of every trial day. Some information is also available in English (including trial reports), Spanish, French, Portuguese and Dutch. The Schmücker case is outlined in detail in the weekly paper jungle world (7.7.99).

Filed 10.12.01