"Terrorist" trial reveals lack of evidence after two
years on remand
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 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.
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
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
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
"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,
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).