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Defendant Stephan Ernst (2nd from left) in the trial for the murder of Walter Lübcke
Photo: Ronald Wittek / picture alliance / dpa / epa Pool
Yesterday, on January 28, 2021, the trial before the Frankfurt Higher Regional Court for the murder of the politician Walter Lübcke and an attempted murder of an Iraqi asylum seeker handed down the verdict against the two defendants: The defendant E. was sentenced to life imprisonment for murder and acquitted of attempted murder;
the defendant H. was sentenced to one year and six months' imprisonment for illicit possession of weapons, the execution of which was suspended on probation.
In the judgment against E. the particular gravity of the guilt according to § 57a StGB was determined and a reservation of the imposition of preventive detention according to § 66a StGB was ordered.
Thomas Fischer, arrow to the right
Born in 1953, is a legal scholar and was chairman of the 2nd criminal division of the Federal Court of Justice.
He is the author of an annually revised standard short commentary on the criminal code and numerous other specialist books.
Hardly a day is over when newspapers and television reports, forums and chat rooms are again full of thousands and thousands of "appraisals" of the judgment, which is no more known than a press release from the Higher Regional Court and the brief summary verbal justification by the chairman of the Senate only very few were present to comment on it.
This is not surprising and in principle not to be criticized, because one cannot expect an interested public to accept a verdict in silence and then to look forward to the extensive written reasons for the verdict that may appear months later and to withhold all evaluations until then.
The majority of the citizens (fortunately) are not auditors who are familiar with such an attitude and who are practically second nature: The very first thing you as an (active or retired) auditor about a foreign judgment is always and automatically: You can't say anything at first until you know the reasons.
The written reasons for the judgment are always meant.
In criminal proceedings, they are only regularly written after the announcement (see Section 267 of the Code of Criminal Procedure) and then reflect the essential considerations and results of the judgment consultation - in a very smooth, formalized, mostly summarized form.
General
So in a certain sense it is cheap arrogance on the part of "professionals" to always hold the layperson interested in the process and the outcome of the process against the fact that they "do not know the files" and, in particular, have not read the judgment.
As a rule, they cannot and are not even allowed to read it;
only a very small number of first-instance judgments are published - in anonymised form.
Somewhat more obvious is the accusation that anyone who was not present at the main hearing is generally unable to make any reasonable statements about the evidence, the results of the evidence and the judgment of the court.
Anything else would be a miracle: Imagine, for example, if a report appeared every week in your daily newspaper about what the students of a class at the local grammar school by and large in terms of content in their last class work (subjects: German, math, French, Latin , Social studies, chemistry);
The authors would be journalists who have not studied any of the subjects mentioned, including pedagogy.
Would you think it appropriate if you were to use this as the basis for setting the grades for the class work and the grades for the school reports as the average of all the parents' "evaluations"?
- I know: An example that seems a bit remote.
But not really absurd, if you think about it: Journalists who neither know the case files nor - as a rule - have learned criminal law (or forensic psychology, criminology, forensic medicine or any other procedural science) write based on a more or less intense »impression «What appeared to them to be important in the taking of evidence and evaluate this based on their own attitude.
This in turn is read by people who have far less knowledge of all of this and often only spend a few minutes on the subject.
How should it be possible to form even a halfway sensible, rational, fact-based judgment?
It is not possible.
Nevertheless, there is a need for it and it is often oversized and urgent.
In criminal law and its public representation and implementation, »symbolic«, publicly effective effects aimed at general effects play a major role, and crimes are usually events that are capable of affecting people emotionally and preoccupying them.
Their exposure, "reappraisal" and judgment arouses fears, projections, hopes and feelings.
Therefore, one should not be surprised or complain when exactly this effect occurs and breaks publicly.
more on the subject
Lübcke trial: a senseless, terrifying actA comment by Thomas Fischer
On the other hand, however, are the rationality and the requirements and foundations of a society based on the rule of law.
They provide that the courts decide on guilt or innocence (see Art. 92 GG: "The judiciary is entrusted to the judges"), not "the people" or even those who declare themselves to do so depending on their mood.
Incidentally, the judges don't do that because they naturally could do better.
That follows logically from the fact that - as a lay judge or honorary judge - everyone can.
The position of a judge is a question of legitimacy, not expertise.
The latter are already required, but they are additional, job-specific requirements.
There is a "legal staff", legal experts, judges, because otherwise the law of a complex society cannot be regulated evenly and halfway arbitrarily.
Consider: If you were called on tomorrow to meet in the town hall to negotiate and decide a case of investment fraud, and if that happened to everyone all the time, and you and your neighborhood would also include all strange family disputes, divorces, drunkenness, and so on thousands of other legal cases, the result would be: sheer chaos, worse than any permanent lockdown;
after four weeks at the latest, death and homicide would break out.
Because that's the way it is and actually makes sense to everyone if he / she is not on the trip "I by nature know what is right and fair" or belongs to the faction of the "Everything a question of logic" schematics, the citizen has to make compromises with himself, so to speak.
That is the exhausting thing about bourgeois democracy and the rule of law: You have to live with responsibilities, your own limits, the responsibilities of others and with the fact that social peace is very much based on trust, which is symbolized in social institutions.
More concrete
More concretely: One may well think (because one “must” internally) that one has definitely recognized the “truth” in this or that process.
And you can also be disappointed because others - possibly including the competent court - have not got it done the way they think they should be.
But then you always have to take a step back and say: They are doing this because they are responsible, because the task is "entrusted" to them, and not to me.
And you have to realize that the same judges decide over a hundred other cases of which you yourself would have no idea and where you would very often be "wrong" yourself.
Quite specifically
In the proceedings against E. and H. before the Frankfurt Higher Regional Court, the court found E.'s accused attempted murder of a refugee and H.'s involvement in the murder of Walter Lübcke to be unproven.
First of all, this is a fact that does not give rise to any excitement.
It is possible that some people, process observers, journalists think or claim that they themselves have decided otherwise, but it is irrelevant.
There are hundreds of thousands who keep claiming that they would have done something significant, thought or decided otherwise, if asked and left.
But you don't, and for reasons.
Incidentally, I can only recommend every super “courageous” remote diagnosis judge to take a look at
B. as a lay judge - actually to be in the position of responsibility.
I can assure you that very great heroes often become very little dwarfs.
more on the subject
The Lübcke family after the verdict in the murder trial: The pain that remains From Frankfurt am Main reports Julia Jüttner
In criminal proceedings, things don't go according to mood and mood and »probability«.
Of course, not according to the alleged "logic" of which some are very proud.
Criminal proceedings are a »concrete constitution«: Here it is decided how the state may deal with its citizens.
It is very under-complex and childlike to assume that the criminal proceedings are about "perpetrators", that is, about the bad guys, and therefore as much toughness as possible is just good enough.
In fact, the point is to first find out who is the "perpetrator" and who is innocent.
The means by which the state can do this must be the same for and against everyone: that is a minimum requirement of the guarantee of human dignity and democracy.
Anyone who demands that intimate diaries be evaluated for the transfer of »child molesters«, cameras installed in bedrooms, that children are forced to testify or that »intensified interrogation« be permitted, must allow all this against themselves if they are completely innocent, but someone is "suspicious".
The enthusiasm for merciless toughness usually wanes quickly.
There are four "pieces of evidence": witnesses, documents, expert reports, and inspection.
The rest are means of the so-called "free proof";
they are only permitted in exceptional cases.
A judge is therefore not allowed to quickly visit the crime scene in the evening, as on television, or call a few old friends and question them on the phone.
The reason also lies in the form: the judgment must be based on the "epitome of the main hearing";
the taking of evidence is to be carried out "immediately" before and by the judging court.
Therefore it is z.
For example, it is also inadmissible for a judge to “tell” the others in the consultation room what he knows of interesting facts about the matter.
Everything has to go to the main hearing.
There are now all sorts of questionable revisions and deviations from this extremely important principle: "Agreements" outside of the negotiation, which are often incompletely announced and recorded;
"Self-reading procedure" for extensive files;
Video interrogations (to allegedly "spare" witnesses);
hooded or covered (anonymous) witnesses;
indirect testimony because of "blocking" of witnesses by authorities;
etc. Many also find that good when they read about it.
If charged, they would find it less amusing to be convicted on the basis of testimony from witnesses whom they never saw or were allowed to question.
There are no "rules of evidence" in German criminal proceedings: no evidence result has a purely formally determined evidential value (such as the confession used to be).
The so-called »circumstantial process« is mostly presented as something inferior by the press and the public.
that is grossly wrong.
"Evidence" means "evidence".
The content of a witness testimony, a lead, a statement by an expert, a confession: all of these are "circumstantial evidence" and they must all be regarded as the "epitome of the main hearing" (Section 261 of the Code of Criminal Procedure) - not isolated, formally, "mathematically", quantitative, but summarizing, understanding, evaluating.
It is a difficult task.
If you fail in front of the television thriller, you can get over it.
If someone goes to jail for 10 years for small mistakes ("I was somehow sure that it was") or their whole life is destroyed, it's no fun, not even for the judges!
more on the subject
Judgment in the murder case Walter Lübcke: The limits of remorse From Frankfurt am Main reports Julia Jüttner
This principle also applies to apparently "clear" traces and evidence: A DNA trace can now be evaluated with a probability and, if necessary, assigned to a person, which is extremely high if the requirements of science and the subsequent requirements of the Federal Court of Justice are met .
There are a few important key rulings from various criminal panels that are worth reading.
Even an extremely high hit accuracy never means that all other evidence is irrelevant.
The finer the measurement methods, the easier it is to make application errors, for example.
A flake of skin on the shirt of a crime victim can be assigned to a suspect.
What if he has an alibi for the time of the crime?
Can you just ignore that because there is no herb or witness left against the accuracy of a DNA analysis?
Of course not: the main scale could have got there in a hundred different ways.
In the known extreme case, an employee of the test stick manufacturer scattered her own DNA nationwide and established the existence of a mysterious »killer«.
There is no specific meaning of certain evidence.
In each individual case, the courts must assess the weight and significance of the individual evidence findings as best they can, and come to an "overall result".
Condemnation presupposes "certainty".
This is not the "less necessary exclusion of all other possibilities" - you would never come to a result.
But neither is it carte blanche for "courageous" speculation and poking around in the fog.
That is the individual responsibility of every judge, which no one can relieve him of: To be clear about whether he or she is "convinced": really sure, not "almost" or "fairly".
That others disagree is not an argument for or against;
it is normal.
You have to come to terms with yourself, be as critical as possible of your own motives and lines of thought, openly discuss and, if necessary, argue with your colleagues.
What press, viewers, co-plaintiffs, politicians, readers or TV viewers say and think is completely irrelevant.
abstraction
There is only one legal remedy against the judgments of the regional courts and higher regional courts in the first instance: the appeal.
There is no calling.
That is sometimes complained or doubted, but it is true.
Vocation means: everything is new.
The whole taking of evidence starts from scratch (in principle);
the evidence is used again immediately, the appeals court decides on the determination of the facts again.
This is not the case with revision: this is a procedure for examining »legal errors«.
Material are the written reasons for the judgment and, if applicable, facts that are added with admissible (!) Procedural complaints.
The statement "A killed B" cannot be attacked with the assertion in the appeal that A was in custody at the time of the crime and was not at the scene of the crime.
One could attack if the trial court had convicted A of theft (instead of manslaughter) (factual and legal error), or that the determination was made the wrong way (application for evidence that A was in custody, incorrectly rejected).
Otherwise the facts are established.
And if a material or formal error is found on which the first instance judgment may be based, the appellate court does not negotiate itself and does everything right.
Rather, it revokes the judgment and refers the matter back to another chamber of the regional court (Senate of the OLG);
it then starts all over again to the extent of the repeal - that is what is regularly described in the press as "must be rolled up again" (although it has always been unclear to me what the "rolling up" of proceedings should actually be).
The appeal is therefore a very abstract legal remedy, which most of the parties involved in the factual proceedings have little pleasure in and the public can generate little tension.
Nevertheless, it is of course completely wrong and ignorant to view the revision procedure as a "glass bead game", "know-it-all" or "aloof".
Anyone who, as a criminal law professional, is not halfway acquainted with the law of revision cannot act sensibly in the factual instance because he is always either afraid and insecure or has to flee into some "agreements" and "compromises" before any difficulty in the process.
more on the subject
Reactions to the verdict in the Lübcke case: "At least since the NSU murders, we shouldn't have closed our eyes"
In the case of E. and H. you will see whether and who is filing an appeal on which the 3rd criminal panel of the BGH would have to decide.
Both defendants (each for themselves), the federal prosecutor's office (to the detriment or in favor of the defendants) and the co-plaintiffs would be entitled to review.
We will see whether and which revisions are made.
Only then will we be able to give our (non-binding) thoughts on the basis of the written reasons for the judgment as to whether the OLG's assessment of the evidence was "correct".
Or at least free of legal errors.
Lookup
One final remark on the reservation of preventive detention: This is a "measure", not a punishment.
It is not based on guilt, but on dangerousness (see Section 66a in conjunction with Section 66 StGB).
The “reservation” is a very unclear, long controversial measure in the event that the court is not sure at the time of the conviction whether the conditions for preventive detention are met at that time.
It does not have a coherent system;
especially in relation to other measures (placement in a rehab or psychiatric hospital).
The great "favorability" that the Senate Chairman in Frankfurt first promised the accused for his "outspoken confessions" and then self-praised again when the verdict was pronounced evaporates to a mere breath with a reasonably good knowledge of the law, very close to pure nothing - in truth it is a heavily disguised rubbish of the accused.
Before ordering preventive detention following the completion of the sentence, it must be checked in all cases whether the SV requirements are met;
there is no difference in the case of reservation and immediate order.
And an SV cannot be enforced after the sentence if the life imprisonment is not - based on the same prognosis!
-is suspended on probation.
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