BGH, Comparative Law, Criminal Law

Court Releases 3,025-Page (!) Judgment in NSU Case

Ermittlungen gegen mutmaßliche NSU-Unterstützer: Zschäpe soll ...

The trial of members and supporters of the National Socialist Underground was the most complex and significant criminal trial in German history since the 1990 cases about the shootings at the Berlin Wall. The NSU was a three-person neo-Nazi terrorist cell (assisted by over 100 sympathizers) which committed numerous bank robberies and murdered 9 foreigners and one policewoman in Germany from about 2001-2011. The police never caught on to the serial killings; the organization was only discovered when two of the three core members, Uwe Mundlos and Uwe Böhnhardt (the two men picture above in, er, happier times), committed suicide and set their mobile home on fire. They had been tracked down after their most recent bank robbery and wanted to avoid capture at any cost. A third member, Beate Zschäpe, turned herself in shortly afterward.

The case caused a massive scandal in Germany for a number of reasons. First, the police had entirely failed to detect that the murders were related. Instead, they generally proceeded on the assumption that the small businessmen who had been killed (most of whom were of Turkish ancestry) had been targeted because of disputes or corruption. Second, the investigation which followed the 2011 revelation of the group’s existence uncovered dozens of bizarre anomalies — the German domestic spy agency (Verfassungsschutz) turned out to have informants in circles close to the NSU, and some officers of the agency had murky links to right-wing groups, the nature of which has never been fully determined. Some Verfassungschutz files on the suspects were destroyed under mysterious circumstances.

The court case against Zschäpe and four co-defendants, however, concentrated solely on their guilt, not on the overall investigation. Yet even with this narrow focus, the case turned out to be massively complex, lasting 438 trial days (g). Zschäpe and the co-defendants were all found guilty, with Zschäpe receiving a life sentence in 2018 for murder, arson, and other crimes. The ruling was controversial, since Zschäpe was not proven to be present at any of the murders, and was convicted as an accomplice. In Germany, as in most European countries, concluding a criminal case is a two-part process. First, judges deliberate and decide on the guilt of criminal defendants. After they have reached a conclusion, they announce their resolution of the case. However, merely deciding the case is only the first step. Judges are required to explain their decisions in writing. These justifications must contain a detailed analysis of the evidence and the law, produced according to a strict template designed to ensure an accurate and thorough result.

This is one of the contrasts between common-law countries like the USA and civil-law countries. In the USA, the judge doesn’t resolve the key questions in the case; the jury does. To give appeals courts something to work with, the trial is recorded verbatim, either on paper or electronic media. Civil-law countries take a totally different approach — they put the judge (or panel of judges) in charge of the entire trial, including producing a comprehensive summary and analysis of all the evidence and all the conclusions they reached. It’s this justification (Begründung) which forms the basis for the appeal.

In the NSU case, the Munich court set itself a deadline of 93 weeks to produce the justification. In the meantime, Zschäpe sat in jail. She’s not in prison, of course, because she hasn’t been convicted yet. The court finally released its judgment 36 hours before the deadline. It is 3,025 pages long and occupies six large binders. It’s so large that it’s estimate it will take two weeks to deliver all the copies to the parties to the trial. Zschäpe’s lawyer has already announce he plans to appeal the judgment to the Federal Court of Justice, the highest (non-constitutional) court in Germany. Guided by the appeal (Revision) filed by Zschäpe’s lawyer, that court will comb through the 3,025 pages, looking for errors. I don’t particularly envy them.

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