Beate Zschäpe and three of her defense lawyers (Wolfgang Stahl, Hermann Borchert, Mathias Grasel) in the Munich Higher Regional Court (2015)
Photo: Tobias Hase / dpa
decisions
The file number of the Federal Court of Justice - 3rd Criminal Senate - is: 3 StR 441/20. Bureaucratic meanings are hidden behind the numbers: "3" means: Third Criminal Senate, "StR" means: Revision in criminal matters, "441/20" means: That was the four hundred and forty-first revision that was carried out by the Attorney General - the »Public Prosecutor at the Federal Court of Justice« In 2020 for the 3rd Criminal Senate. On August 12, 2021, the Senate passed two resolutions on the matter and published them on August 19, along with a lengthy press release, after it - very unusual - issued a press release on August 12 stating that it would be issuing a press release soon.
The procedure 3 StR 441/20 was finally concluded by the two decisions with regard to three of four defendants. Decisions of the BGH in criminal matters are made, as regulated in Section 349 of the Code of Criminal Procedure (StPO), either by judgment or by resolution. Resolutions are only admissible if the Federal Public Prosecutor General (GBA) has applied for them or, in any case, has not applied for the main hearing to be held, and if the Senate decides unanimously from five judges.
Whether a revision is decided by unanimous decision or by judgment after the main hearing does not say anything about the importance of the matter or about the chances of success of a revision. As a matter of routine, public prosecutor's offices always negotiate orally, even if they are actually "obviously unfounded"; supposedly that requires politeness. It is usually not granted to defendants, co-plaintiffs or accessory parties: In 90 percent of cases, decisions are made without a main hearing, although this form of decision is actually the exception according to the law. If this is not done, however, the Senates will not be able to finish their work. And before the judiciary gets under stress, the defendants should rather be content with written messages without explanation:87 percent of the revisions are "rejected as obviously unfounded because there is no legal error" - end.
more on the subject
BGH decision on NSU judgments: Zschäpes maximum penalty by Julia Jüttner and Wiebke Ramm
This was only partially the case in case 441/20: The NSU proceedings in the Wohlleben affair ended with a rejection decision, the reasoning of which comprises two lines.
But for the rejection of the appeal against the defendant Beate Zschäpe as "obviously unfounded" (with small corrections to the guilty verdict) the Senate spent 31 pages, of which the reasoning for the question, which was generally regarded as exciting, comprises ten pages: Zschäpe was Accomplice of the murderers Böhnhardt and Mundlos, not just an assistant.
Perpetration and participation
A great deal has been written and discussed about the distinction between complicity (Section 25 (2) StGB) and participation through aiding and abetting (Section 27 StGB), and in this case too it was the subject of discussion. That one cannot be a "perpetrator" in the legal sense if one is not physically present at the crime scene and / or at the time of the crime is a myth that has never been true. Everyone would consider it unjust if the proverbial "gang boss", who controls his henchmen remotely by cell phone and collects 80 percent of the loot after the crime, were only threatened with a reduced sentence as an "assistant". As is so often the case, no general, objective, always precisely readable formal criteria can be found for the delimitation. Especially in the so-called »general part« of the criminal law it is like this:What is (already) an "action" or (still) doing nothing? When does the mere consent with no punishments end and the criminal "inciting" begin? Is someone an "assistant" in an act committed by someone else in his home? What exactly is an "error"? Such questions were not invented for law exams, but arise from the infinite facts of life themselves, from the need to classify them legally, and from the impossibility of capturing the unlimited diversity of life in precise, technically measurable terms and descriptions.but arise from the infinite facts of life themselves, from the need to classify them legally, and from the impossibility of capturing the unlimited diversity of life in precise, technically measurable terms and descriptions.but arise from the infinite facts of life themselves, from the need to classify them legally, and from the impossibility of capturing the unlimited diversity of life in precise, technically measurable terms and descriptions.
It is the same with "perpetrators". Here it is - once again - "it depends": someone is a perpetrator if he "controls" or controls an act or the success of an act, controls it, contributes something necessary to the realization, decides whether, how and when of an act, and if he wants the deed to be realized himself. The jurisprudence calls this "rule of law" and "interest in the crime". Anyone who “stands smear” at a break-in for 50 euros and doesn't even know what it's about is usually not an accomplice, but an assistant. Whoever chooses the objects to be broken in and gets half of the loot is an accomplice, even if he does not get in himself.
The Higher Regional Court (OLG) Munich, whose State Security Senate decided in the NSU case in the first instance, has "established" facts, according to the assessment of which the defendant Zschäpe had both a criminal responsibility and an interest in the offense in all cases tried, i.e. was an accomplice of jointly planned crimes committed by division of labor. The Federal Court of Justice, as a court of appeal, examines whether the judgment of the first instance contains "legal errors" (Section 337 of the Code of Criminal Procedure). He does not have to decide whether something else could have been ascertained or whether facts other than those ascertained might have been more likely. The appeal court examines whether the findings are conclusive and complete, whether the assessment of the evidence has seen the obvious possibilities and found acceptable results,and whether the legal assessment has been based on the correct criteria and standards. If that is the case, the judgment is “free from legal errors” and an appeal must be rejected.
The judgments as to whether the BGH applied a “broad” or “further expanded” or even just the usual “perpetrator term” or accepted its application by the OLG as “justifiable” differ; Certainly, in criminal law science, the decision will still be debated and debated in the future. One thing can be said for sure: Neither the form nor the content of the decision was a sensation or even a surprise. From the sober point of view of the appellate court, the "Zschäpe case" had no sensational aspects, but only a few manageable legal questions. That may be regretted by one or the other who might have hoped for an excited camera appointment in Karlsruhe and the opportunity for dramatic explanations.In contrast, the Senate's rejection decision shows a reassuring routine: Why should one do more honor to murderers and serious criminals than the decision of legal questions requires.
review
Numerous "retrospectives" have been cast on the proceedings because of the acts of the "NSU".
The review process began as soon as the process started eight years ago.
The main defendant had done her work by looking for three defense lawyers with family names, the combination of which was revealed to the sympathetic right-wing extremist word fetishists as a sign of loyalty;
Most of the rest of the main negotiation time it passed as a five-year show of propaganda of silence.
Meanwhile, the media puzzled over her hairstyle or the stew soups she served her loved ones after the deed was done.
Defense attorneys suffered publicly, and co-plaintiffs, with more or less professional help, went through their own process.
more on the subject
Surviving dependents demand further investigations: »No final line under the NSU issue«
NSU murder victim: unforgotten
Anyone who had hoped that the criminal trial would shed light on the historical darkness of organized right-wing extremist terror and its possible connections in the milieu of the well-tended German front yard system was disappointed and naive if he had expected otherwise.
That’s a good thing.
Because main criminal negotiations are neither made nor suitable to "work through" the latest history or to track down hidden abysses.
That only works in American crime novels and, if we're honest, we don't buy their cheese anymore.
The interesting question is what the criminal case against the NSU gang did or did in society.
In any case, it has not caused a noticeably larger number of citizens to fear right-wing extremist terror or even to notice the moods earlier on whose humus it arises.
In the end, everyone had had enough of the endless negotiations in Munich and the constant phrases of consternation from the memorial hour professionals.
The Federal President's speeches on the subject are as exciting as ever, and we hear that two thousand fifteen should not be allowed to repeat itself.
Under no circumstance!
Otherwise the NSU could repeat itself in the end.
And we want to prevent that with all our might and if need be with the entire Hessian police and the KSK.
outlook
We got to know a lot of particularly clever people in the course of the endless process. I have seldom seen so many who were so sure that the series of murders should have been noticed, prevented and followed. Hundreds of article writers have addressed the failures of everyone who has ever touched the case - except their own. Dear readers, take a small test to measure your own gain in knowledge and vigilance: Make a short note of which acts of violence in the last six months you have memorized and analyzed in detail for suspicious correlations - if so: which ones - to determine whether maybe something is repeating itself. Ok - you are not responsible for this, I suppose. Neither do I.Who may it be Is he just failing again? We do not know it.
Ms. Zschäpe is imprisoned for life.
It will not, as on August 19.
was again reported senselessly, "released after 15 years".
The Federal Constitutional Court ruled almost 50 years ago that the lifelong, hopeless imprisonment of people for the purpose of punishment violates human dignity and is unconstitutional;
Nor is it justified by the interests of the general public, not to mention the common howling for revenge of the healthy popular feeling today.
Everyone, says our constitution, must have the chance (!) To be set free again.
Incidentally, this constitution contains the "values" that we have just been able to convey to the Afghan peasants for 20 years of war.
So one should assume that they are our dearest and most precious.
Human dignity dictates that every convicted person must have a chance to be released again. Not more. Whether the chance is realized or not will only be decided in the enforcement. The prisoner may apply for the first time (!) After 15 years at the earliest. Only in rare exceptional cases is the rest of them suspended for life after 15 years: the well-known "tragic" cases of desperate treacherous murders are one of them. The "normal" murderer sits on average (!) For almost 20 years, and if the court has determined that the guilt is particularly serious, the average is over 24 years. Many remain in custody forever because they continue to be dangerous or fall ill and die while in custody, and some do not want to apply at all.The message to all the tough guys among the letters to the editor and regulars' table sheriffs: Lifelong is a brutally harsh punishment, because no one who is subjected to it knows if and when it will end.
The formulas and empty phrases of grief, indignation, reproach: Were these our own? Did the NSU killers threaten "us"? Have you been afraid, dear reader? Just asked that. One does not have to sink into a feeling of guilt because one does not feel the supposedly prescribed level of so-called "empathy". But you have to be accountable for it. The NSU was a gang of murderers who conspired against the fundamental principles of the constitution. The strange, silent emptiness that the process has left in society beyond the homestories and outrage research, this underground, disgusting boredom with the subject, this malice about the stupidity of co-plaintiff representatives: How much coincidence was that, how much defense, how much aggression? Is there anyone who is ashamed of this? That seems important to me.The specific defendants are more likely not. They have to live with their guilt and are forgotten in the gray.