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Revision hearing by the 3rd Criminal Senate on André E. at the Federal Court of Justice in Karlsruhe on December 2nd, 2021
Photo: Uli Deck / dpa
André E., the 42-year-old neo-Nazi, about whom everything revolves in front of the 3rd criminal division of the Federal Court of Justice (BGH) on this day in Karlsruhe, is not even there: He is not in the hall and is represented by his lawyers.
The Senate, chaired by Judge Jürgen Schäfer, is negotiating this Thursday on the revision of the defense and federal prosecutor's office against the verdict against André E. - the closest confidante of the NSU terrorists Beate Zschäpe, Uwe Mundlos and Uwe Böhnhardt.
In July 2018, the Munich Higher Regional Court sentenced him to a prison term of two and a half years in the NSU trial for supporting a terrorist organization.
The federal prosecutor's office had been imprisoned for twelve years and the defense demanded an acquittal.
Were the acquittals wrong?
What did André E. know and when about the NSU and its actions?
When did he at least consider it possible that Zschäpe, Mundlos and Böhnhardt would carry out terrorist attacks from underground?
The question of intent is at issue before the Federal Court of Justice (BGH).
More precisely: The question is whether the Munich Higher Regional Court made errors of law in its judgment against André E.
The judges in Munich acquitted André E. of the allegations of aiding and abetting attempted murder, aiding and abetting robbery and other acts of support.
The Federal Prosecutor's Office considers these acquittals to be wrong.
The federal prosecutors Ralf Wehowsky and Jochen Weingarten complain that the assessment of the evidence by the OLG Senate shows “gaps and contradictions”.
Should the BGH follow the appeal of the Federal Prosecutor's Office, André E. would have to answer again in Munich.
He could then face a significantly higher penalty.
All those years at the side
André E. met Zschäpe, Mundlos and Böhnhardt in the spring of 1998, shortly after the three neo-Nazis went into hiding.
In the underground, Zschäpe, Mundlos and Böhnhardt founded the »National Socialist Underground« (NSU).
Between 2000 and 2007 the NSU murdered eight men of Turkish origin, one man of Greek origin and one policewoman.
They carried out two bombings and 15 robberies, and injured dozen people.
André E. stayed at the side of Zschäpe, Böhnhardt and Mundlos all these years.
It was also he who called Zschäpe when the two men had committed suicide in a mobile home in Eisenach in November 2011 and Zschäpe had blown up their common apartment - their terror center - in Zwickau.
Consistently silent
André E. shared her right-wing extremist attitude.
He has the words "Die Jew Die" - "Die Jew, Die" - tattooed on his stomach.
André E. was the only defendant who consistently remained silent in the NSU trial.
In his plea in the NSU trial, Weingarten asked whether André E. might be the fourth NSU member.
The only thing missing is the evidence.
André E. rented three mobile homes for the NSU members in 2000 and 2003.
Mundlos and Böhnhardt drove their mobile homes to Chemnitz and Cologne.
In Chemnitz they committed robberies, in Cologne they bombed a grocery store in Cologne's Probsteigasse.
According to the Munich Higher Regional Court, André E. did not expect in November 2000 or September 2003 the possibility that Böhnhardt and Mundlos would use the mobile home to commit robberies.
Rather, André E. assumed that they financed their underground life in a legal manner and used the mobile homes for legal purposes.
How do you secure your livelihood underground?
The months of November and December, not exactly the usual travel months, would already speak against this assumption, says Federal Prosecutor Weingarten in Karlsruhe.
And how André E. is supposed to have imagined that the three had legal income, the judges in Munich would not have stated in their judgment.
André E. rather knew that after they went into hiding, the three had to rely on support from the right-wing scene, which soon dried up.
André E. must therefore have come up with the idea that the three would commit robberies.
How else could they have made a living underground?
According to the OLG Senate, André E. should not have thought that the three banks had attacked until after August 2006.
Because at that time, André E.'s contact with the three intensified.
If they had previously seen each other once or twice a month, according to the NSU judgment, they would now have seen each other two to three times a month.
Federal Prosecutor Weingarten also criticizes that. It is in need of explanation that the Senate in Munich assumes, based solely on a single additional visit per month, that André E. is said to have suddenly gained significantly more knowledge about the terrorists.
However, there is no such explanation.
Explosives in the garage
The federal prosecutor's office also opposes the acquittal of the charge of complicity in attempted murder.
According to the NSU judgment, André E. did not expect that Böhnhardt and Mundlos could use another mobile home, which he rented for them in December 2000, to carry out a bomb attack in Cologne's Probsteigasse.
The federal prosecutor's office is not convinced.
André E. knew that the three of them were storing explosives in a garage in 1998 - before they escaped.
Apparently they were able to obtain explosives.
The judges in Munich did not explain why André E. should not have thought it possible that they could also get to explosives underground.
"Taste of Injustice"
Edith Lunnebach and Christina Clemm represent the family that was the victim of the bomb attack in the Probsteigasse at the time. The bomb was hidden in a Christmas stollen tin. It detonated when the 19-year-old daughter opened the can in January 2001. The young woman was seriously injured. They have not appealed against André E.'s acquittal in this matter. Nevertheless, the family lawyers take part in the trial.
"The attack on our clients was 21 years ago in January," Lunnebach told the BGH. “Our clients have learned to live with it. This is one of the reasons why we did not lodge an independent revision. ”She calls the idea that André E. supposedly thought at the time that the NSU members would use the motorhome for harmless leisure time activities“ alien to life ”. "For our clients, the stale taste of injustice remains."
André E. helped Zschäpe again in January 2007, following the findings of the OLG Senate.
He gave her his wife's ID card and lied to the police for her.
At that time it was about water damage and theft in a neighboring apartment.
Zschäpe was questioned as a witness by the police.
She posed as the wife of André E., he accompanied her.
According to the OLG, André E. did not know that he was helping a terror trio with his lie.
Only after this lie with the police is he said to have asked Zschäpe, Mundlos and Böhnhardt why they actually still live underground.
It was only after nine years at their side that they reported to him about the existence of the NSU.
That is why the court in Munich evaluated André Es further as support for a terrorist organization.
André E. procured Zschäpe and Böhnhardt Bahncards in 2009, 2010 and 2011.
According to the Munich Higher Regional Court, Zschäpe and Böhnhardt could have used them as “makeshift ID cards” so that they could continue to live and murder underground without being recognized.
The revision of the defense is opposed to this condemnation.
A Bahncard is just a "discount card" and is not useful as proof of identity, says lawyer Herbert Hedrich, who represents André E. together with his lawyer colleague Oliver Freitag.
A Bahncard is therefore an unsuitable means of supporting a terrorist organization.
The BGH wants to announce its decision on December 15th.