Report 18: Trial day July 3, 2013


During today’s hearing a detective chief superintendent of the BKA was questioned. He had conducted conversations with Zschäpe concerning especially her discontent with her lawyer and her considerations of testifying. Having been interrupted the day before, the questioning of the official L. was continued. Zschäpe’s lawyers requested the official’s reports to be ignored in further proceedings. At the end of the day, the trial’s political character and potential of contributing to the “maximal clarification” of the NSU complex became clear through various statements: the Federal Prosecutor’s Office declared with regard to motions put forward that the “clarification of the NSU’s right-wing environment” was “not part of this main trial”.

[deutsch]  [türkçe]

The session began at 9.40 a.m. First witness was detective chief superintendent B. of the BKA. B. had accompanied Zschäpe during a transport from the penal facility Köln-Ossendorf to the penal facility Gera on June 25, 2012. B. reported that there had been a decree from the Federal Court of Justice, allowing Zschäpe to be visited by her grandmother, who had been in bad health, and her mother. Beforehand, there had been a letter from the defending lawyer which conveyed, according to B., that the lawyer assumed there would be no formal interrogation. Zschäpe had been picked up at 8 a.m., with bound hands and feet. Apart from Zschäpe and himself, another official from the BKA and an accompanying official of the federal police had been seated at the table within the vehicle. Between Zschäpe and himself was a table on which only cigarettes and a magazine of Zschäpe’s had lain, but neither laptop nor notebook. He had informed Zschäpe that there would be no interrogation, but that they could talk about anything and everything, or not at all. Moreover, he had told her that he would have to write a report about anything they said. Zschäpe had said she knew this, and would only say things that could be written down anyway. Each journey had taken four hours; both on the journey there and back there had been stops for visits to the toilets and cigarette breaks at highway patrol stations.
For a brief moment, B. browsed through his notes. Defending lawyer Heer, Zschäpe’s attorney, interjected, asking B. to rely completely on his memory. Götzl urged the witness to comply. Moreover, Heer suggested copying the witness’s notes and making them available. B. however did not agree to this. Heer put forward a motion concerning this, which Götzl didn’t want to decide upon straight away. Heer demanded a decision from the court. After statements from the Federal Prosecutor’s Office and co-plaintiff attorney Kolloge the session was discontinued till 10.10 a.m., when a decree was issued approving Götzl’s order.
Once again, Götzl urged the witness to report from memory. B. recounted how first his colleague had spoken to Zschäpe, whom she had already known from visits to the penal facility. Zschäpe had said she was looking forward to seeing her grandmother and mother again. She had been slightly nervous and was worried that the press could take pictures. However, she had then seen a police vehicle blocking a road, and had acknowledged the effort to secure the transport.
She had looked different from photographs, with blond highlights in her hair. She had said there was a professional hairdresser at the penal facility, who also instructed, one could have one’s hair done there. The conversation had switched to the weather, as it had seemed through the shaded windows as if it was raining. He had then said that the weather was supposed to be better in the North. He had said he knew the island Fehmarn from holiday trips. Fehmarn would probably have had better weather, as so often when the weather was bad on the mainland. He had then asked her whether she had also made this experience. She had then said: “Who says that I have ever been to Fehmarn?” He had answered that he thought this had been established. The conversation then had moved to the penal facility Köln-Ossendorf, in which Zschäpe had said that, compared to the facility in Chemnitz, the cell was always cold, and that there was no hot water. Moreover, they had talked about the records. She had recounted only to have read accounts from witnesses she had known from Polenzstraße and Frühlingsstraße. She had wanted to know what these people thought of her. Reading witness accounts was burdensome to her. He had said that it would make sense to read the fire investigator’s report, as it included all the items that had been secured, 1800 pieces of evidence that could all be evaluated. Petrol had been spilled in 23 different places and an empty ten-litre spare canister had been found. B. said he had had the impression, Zschäpe had not known this. Then they had talked about her willingness to testify, as she had said at an earlier point that she had not turned herself in in order not to testify. She had said yes, she had intended to testify, especially when her grandmother was unwell, in order to apologize to her grandmother. However, her lawyer had discouraged her from doing so, as she had then recounted.
Now the hearing concentrated on Zschäpe’s discontentment with her lawyer which, according to B., she had voiced several times. They had talked about parts of documents that had appeared in the press. B. stated Zschäpe had said to have subscribed to the Süddeutsche Zeitung.  Her lawyer had had an excellent relationship with Leyendecker who, according to Zschäpe, had offered her a free subscription, which she had declined, not wanting to undertake a commitment. When questioned by Zschäpe whether the BKA had passed on parts of documents, B. had denied this, saying: “We don’t do that.” Her lawyer, Zschäpe then had reported, had said he had not passed on any documents, but maybe plaintiffs had. B. stated Zschäpe had said her lawyer was constantly in the press, was not doing a lot of work and was also not receiving a lot of money. He (B.) had then said that lawyers only start earning money when the trial begins. Concerning her willingness to testify, he had then said there could be advantages to testifying. Zschäpe had said there had been no case like hers. He had then referred to the RAF, saying that Christian Klar for example had not testified and received 20 years. Susanne Albrecht had testified and was released to an open prison after three years and discharged after six years, and was now living under a different name with a reputable job.
B. reported he and his colleague had bought a book on the NSU in Gera, “The Cell”, and had asked whether Zschäpe wanted to read it. She had read the part on the flight, as the colleague had seen. For half an hour no one had spoken, but apart from that the journey had been “filled” with conversation. Zschäpe had wanted to know whether the book was conclusive. They had said the investigations had continued. While they were passing Cologne, they had talked about Cologne Cathedral, which Zschäpe, according to B., would like to visit, and walks along the Rhine and beer gardens. They had talked about jelly babies and drugs in the penal facility, with which she wanted nothing to do. In between they had passed Jena, the place she had grown up in. It had been possible to see the Plattenbauten. He had then said that it had been there that he had questioned Böhnhardt’s parents, pleasant people, who had liked Zschäpe. He had wanted to know how she would react. She had looked at the Plattenbauten and made the impression of being emotionally touched: “I think she got slightly teary-eyed at that point.” He had later remembered that they had also talked about “building mopeds” in prisons, home-made immersion heaters made from forks, which lead to electrical shorts. This had not been in the report.
Judge Götzl then started asking B. questions concerning details in the report. He asked about Matthias D. B. said Zschäpe at some point had asked who had been released from the penal facility Chemnitz or Dresden. When she had heard the name Matthias D. she had said she did not begrudge him his release and had repeated this. She had said this was not the case with others. Götzl then asked about a letter from Anders Breivik to Zschäpe. In the conversation, the question had been whether she had received the letter, which she apparently had not. She had stated her English skills would suffice for the letter if she had a dictionary. She had indicated that she does not know Breivik. Götzl then asked about a part of the conversation regarding what Zschäpe could train as in the penal facility. She had said she could only train as what she would call “housemaid”. Yet she did not want to do so. Briefly, the topic of Uwe Böhnhardt’s elder brother was addressed, who had died under unknown circumstances in 1988, probably due to a fall from a great height. B. had known this story, but did not know anymore who had brought it up during the conversation. The report had only briefly mentioned these topics, as a lot could be talked about in seven and a half hours. It had been difficult to keep everything in chronological order. They had only taken notes in the hotel in Gera, independently from each other, and then again after the trip, after which his colleague had written the report of twelve pages.
After a break, the trial continued at 11.25 a.m. B. said he had remembered two more things. Zschäpe had been very unhappy at the time and had said she could have up to three lawyers. According to B., she had said she could not get rid of her lawyer. They had then discussed the option of asking her mother to help find another lawyer, the fact that her mother whom she could speak to via telephone could choose a lawyer who would then contact the Federal Prosecutor’s Office. Moreover, her lawyer had said her mother should give an interview to “some Goetz or Götze” of the program Panorama who was an acquaintance of his. Zschäpe had voiced how much she disapproved of this; she had got annoyed at the program Panorama several times. Götzl asked for the lawyer’s name. B. said she had always spoken of Mr Heer, but had also said that the other lawyer, Stahl from Koblenz, always had the same opinion as Heer. She had said the employees of the penal facility Cologne had warned her against her lawyer. Briefly, B. spoke about a part in the conversation concerning Zschäpe’s distrust of most people, then about the fire investigator’s report. In this context B. mentioned that one could see from the report that petrol had been found on Zschäpe’s socks, yet not on her shoes. This had not been known at the time, but now there were several indications that she had received the shoes from the accused Susann E.. Zschäpe had not been taken by complete surprise when B. had spoken of the report. Götzl: “What led to the impression that the accused did not know this?” B.: “I kind of knew that she couldn’t have known this, unless she had read it in the media.” Answering one of Götzl’s questions, B. reported that in some connection Zschäpe had asked his colleague’s name. Then Zschäpe had said that this colleague had written a report in which she had called Zschäpe streetwise, which she had seen as an insult. The colleague had said that she had not written the report, but a safety officer of the penal facility Cologne.
Co-plaintiff attorney Clemm addressed the part of the witness’s report which quotes Zschäpe as having said her testimony would be extensive and complete, as she was not somebody who didn’t own up to their deeds. B. confirmed this, saying he had forgotten it due to missing notes. Co-plaintiff attorney Scharmer addressed the part of the witness’s report which suggested that Zschäpe’s wish to explain to her grandmother how these things had come to be and to apologise was the motive for a possible testimony. B. said he was not sure of the background. When questioned by co-plaintiff attorney Wierig, B. confirmed that Zschäpe had said prejudices against people from certain regions, for example that people from Northern Germany were grim and Rhinelanders were friendly, were correct. He had not heard of Zschäpe having any contacts in the North. Attorney Wolf asked whether Zschäpe had behaved differently after her meeting with her mother and grandmother. B. said he could not remember. There had been a conversation on sausages from Thuringia, apart from that he could not remember. Other places than Fehmarn or the Cologne Cathedral had been mentioned in connection to renovations in different cities, B. stated in answer to a question from co-plaintiff attorney Kolloge. Halle and Zwickau had been mentioned. When Zwickau had been mentioned, he had noticed the same kind of blockade as with the topic of Fehmarn. Attorney Behnke asked about the reaction Breivik’s letter. No pleasure had been discernable, rather incomprehension, as to why Breivik would do this.
Then it was the defendants’ turn to ask questions. Attorney Stahl wanted to know whether prior to the trip, B. had spoken to anybody as to why he was to accompany the accused. He had not arranged it himself, but other than that he did not have the permission to testify in these internal matters, B. stated. Stahl asked whether he had been in contact with chief prosecutors Kilmer or Greger. B. denied this. Stahl asked whether he had read attorney Heer’s letter to the Federal Public Prosecutor from June 5. B. asked whether this was the letter he had mentioned. Stahl showed B. the letter, which stated that during Zschäpe’s transfer to Gera neither a formal interrogation nor an informational conversation was to take place, and that this was to be made known to the accompanying officials. B. said he could remember being told by superiors that an interrogation was not desired, he had not seen the letter. Stahl confronted B. with a report from Heer regarding a phone call to Kilmer, who had apparently called Heer’s letter reasonable, had passed it on to the BKA and had given the spoken directive not to attempt any interrogation. B.: “I am sure this was said, but that’s not what we did anyway.” Stahl wanted to know B.’s rank and whether it was usual for officials of this rank to accompany such trips. Once more B. stated that he couldn’t testify in these matters. Stahl asked whether there had been a certain objective. B. said the aim was to find out whether she would say anymore. However they had not carried out an interrogation, as laptops or handwritten notes are used for interrogations. Yet the table had been empty. Zschäpe had mentioned several times to be glad about other opinions and had complained about her lawyer. Stahl asked whether the conversation about Fehmarn had been coincidental. B.: “Of course. That’s how it was.” Stahl wanted to know if there were any explicit offers as to where possible testimonies could be made, for example in a beer garden. B. said he could not remember. At first, he also couldn’t remember any kind of recording. “I don’t know how you got that idea. I can tell you that we stick to the rules.” Then he remembered that the Federal Police had taken pictures from another vehicle, as Zschäpe was getting out of the vehicle and entering the police station. This had not been coordinated with the BKA and was part of the Federal Police’s documentation. Answering a question concerning the conversation on Zschäpe’s defendants, B. mentioned that at some point he had said that a lawyer’s task was to have their client’s best interests at heart. Stahl wanted to know whether B. saw the conversation on Zschäpe’s lawyers as a partial success in a criminological sense. B. answered he viewed the matter objectively and without judgment. Stahl wanted to know if B. had preferred a different defence attorney. A growing unrest filled the courtroom. Stahl said that this was a matter of intrusion into the relationship of trust between lawyer and client. B. answered: “At this point in time, there was no relationship of trust, and she had said so several times. At some point I said: There are also lawyers who in this situation would say you should testify. It would be better for you.”
Zschäpe’s defence attorney Sturm asked for B.’s superior’s name. B. refused to give an answer, referring to his permission to testify. Götzl said normally when in doubt the witness clarified these matters on his or her own. Then Fehmarn became the topic once more. Did he continue to claim the question to have been coincidental and without official interest. B. stated that naturally he had known of the relevant investigation results and therefore had mentioned the keyword Fehmarn. However the topic had arisen by coincidence: “When you don’t know somebody, what do you talk about? The weather.” The book “The Cell” had also been purchased randomly. What incentive there had been to do so he couldn’t remember, and he still hadn’t read the book. Zschäpe had wanted to read it. Whether she had voiced that wish herself or whether she was shown the book he didn’t remember. The conversation had not been conducted. His colleague had started it, as she had already known Zschäpe. He or his colleague had addressed a topic or referred to statements of Zschäpe’s. When a topic had been finished the other person had said something. The federal police officer had not taken part. Zschäpe had said a lot. He did not remember who addressed the brother’s death, but: “You can’t complain, as you didn’t want an interrogation, otherwise everything would have been recorded chronologically.”
Götzl then asked a few more questions, for example whether there had been anything in B.’s notes he had not mentioned. B. said the notes were only made with help of the report as a guideline for the hearing at hand. He would be able to resolve the problem concerning his superior during the break. Defence attorney Sturm withdrew her motion concerning the copying of the notes.
A lunch break was called until 2.05 p.m.
Afterwards, B. said he had spoken to his superior. The decision to assign him to the transport had been a directive from high above, and it was no longer clear who had ordered it. He had been chosen as he was a leading part of the lawsuit and an experienced official with background knowledge. When asked about his supervisor, he introduced him as Detective Senior Councillor H.. After the surveyor’s questions, Götzl posed a question concerning a piece of evidence: a business card of the company Aemedig, to which B. had written a report. Götzl said that according to the flyer the company’s owner was the accused André E.. In the report it had been mentioned that the company’s homepage had not been accessible since 2009. That was when he still was in Zwickau, said B.. He would have passed it on. When asked by one of the plaintiffs, he stated to have been occupied with the case since November 12, 2011. Then his role in the investigation was briefly addressed, and whether questions regarding this should posed at this point. Götzl wanted to release the witness; if necessary a motion would have to be put forward to summon him again.
After the release of the witness defending attorney Sturm put forward a motion objecting to the use of the witness’s statement due to incorrect admonition and illegal interrogation methods. Zschäpe had chosen her defendants and repeatedly stated she did not want to testify. B. and his colleagues had wilfully ignored this, Zschäpe had been misled.
Following statements on the objection of utilisation, the questioning of detective L. from trial day 17 was continued. Attorney Schön was the first to ask questions. He began by quoting from a letter of Zschäpe’s to Robin Sch., which also addressed a flight to Karlsruhe. Defence attorney Stahl interrupted, saying an implementation of the letter into the main trial was not possible, which was why attorney Schön should not be able to draw any conclusions from it. Schön then started asking more openly, for example whether L. had had the impression that Zschäpe had suffered from arrest shock. L. denied this, saying the flight had been unproblematic.
Subsequently the defence’s questions followed, beginning with attorney Heer. He wanted to know which criminal charges had been disclosed to Zschäpe. L. cited the membership of a terrorist organisation and ten accounts of murder which were being attributed to the NSU at this point.  Heer wanted to know from L. whether he knew the Federal Prosecutor’s introductory decree, as that contained further information. L. stated he thought he had not read it by November 13. Zschäpe had not asked him to be allowed to speak to her lawyer at the time. Following the transport in the helicopter, the judicial interrogation had been supposed to take place. Heer asked why then had L. started a conversation during the transport. L. stated that in Karlsruhe it had been calm for the first time, and that this had led to small talk. For him as a police official, said L., it had not been uncommon to try to see whether there was any willingness to testify. Heer wanted to know why the visit in the penal facility had taken place on a Saturday. L. stated that he had only come back from Zwickau on Friday, and when necessary also worked Saturdays and Sundays. He would later say that Saturday had seemed to suit his plans. Moreover, that he had had no problems in getting an appointment at the penal facility: “With Miss Zschäpe, no one can say no.” When asked by Herr, L. answered that he had told Zschäpe that he had her glasses and the conversation then moved on to the cats. He did not think that he had said the delivery of the glasses had been the only reason for his visit. He had sat opposite her, separated by pane of glass. According to his memory they had not discussed signatures during that visit, and he could rule out that they had talked about adoption papers for the cats. Attorney Stahl wanted to know whether the objective had been to receive further information from Zschäpe. L. answered that the visit had concerned the glasses, the cats and valuables, and that the conversation had been of a small talk nature. Stahl wanted to know why these things couldn’t have been sent by mail. L.: “That was not for me to decide.” Attorney Sturm said L. had mentioned the day before, when describing the conversation while waiting at the Federal Court of Justice, the attempt to start a conversation through small talk and then to move on to subjects of interest to the police. Now he was using the term once again. She wanted to know whether this visit had had the same motive. L.: “It concerned these topics. If a conversation developed, I was not disinclined.”
Following a short disagreement concerning the wording of the question, attorney Stahl asked L. whether the assumption was correct that after the interrogation through the investigative judge of the Federal Court of Justice, during which Zschäpe had said she would not make any statements, L. had continued his attempts to receive information from her. L. said he had continued speaking to Zschäpe and that he had also still been interested.
Having been briefly questioned by Prof. Saß the witness was released. A motion objecting also to the use of this witness’s statement was put forward by the defending attorneys. Attorney Heer stated that criminal procedural regulations had been knowingly circumvented, L. had admitted as much with disarming openness. The Federal Prosecutor’s Office commented on the issue, stating that police officials were not generally prohibited from making contact and that this had been sufficiently instructed.
Following another break, statements that had been announced were read out. The Federal Prosecutor’s Office first addressed attorney Bliwier’s application to produce evidence from the 14th day of trial and attorney Pinar’s application to include the notebook of witness P. from the 17th day of trial. Federal Prosecutor Diemer stated the Federal Prosecutor’s Office had to oppose Bliwier’s application due to an overriding interest. He could appreciate his desire for complete clarification; the Federal Prosecutor’s Office was investigating nine individuals and further accomplices. The main trial’s focus however was on an excerpt of the investigations, the accused and the alleged crimes. It was necessary to heed the requirement of speed. Every hearing of evidence that wasn’t close to the topic increased the risk of having to release the two accused who were in custody. The clarification of the NSU’s right-wing environment was not part of this main trial. Chief Prosecutor Greger then elaborated. The hearing of Tino Brandt would not be opposed. The aim to prove a possible failure of the intelligence service was not acceptable. Regarding the reading of a report, there was no sufficient assurance as to which report was being referred to. If a report had been written by members of the intelligence service, these members would have already been named as witnesses by the Federal Prosecutor’s Office. Moreover, these applications to produce evidence would be opposed as they did not carry any significance for the question of fault and legal consequences, if they weren’t already shots in the dark. The application had been found only on investigative reasons. Zschäpe’s asserted contact by mail and the contact of the deceased Böhnhardt and Mundlos to the right-wing scene were without consequence for the verdict itself and no indication of the accused’s fault. Therefore the correspondent’s disposition was not relevant. This also applied when the applicant claimed there to be relationships of acquaintances of the right-wing scene at various locations of attack. Nothing could be derived from this. This had become especially evident with regard to the concert on March 18, 2006, and the alleged possible entanglement of the right-wing scene at the locations of attack in Kassel and Dortmund. A connection to the charges was not discernable at all. This applied accordingly to the witness Benjamin G.. The fact that G. supposedly stood in close contact with Sturm 18 and F., reported activities to Andreas T. and passed on information concerning the concert was of no relevance to the accused. There was no connection whatsoever to the accused Zschäpe, other defendants and the crimes committed. Attorney Pinar’s application to include P.’s notebook would also be opposed. The reason as to why the witness’s notebooks should be used as evidence was not clear.
Following this, attorney Bliwier gave his view on the matter. The Federal Prosecutor’s Office was making it clear why the Accessory Prosecution was present; it was because of the controversy, to what extent the court’s obligation to clarification stretches and how much the court was being urged to investigate these topics and pieces of evidence. These controversies would accompany the trial. The trial was not supposed to become a committee of investigation, the co-plaintiffs did know there had to be connecting factors. Zschäpe was in correspondence with a violent perpetrator from the Neo-Nazi-scene in Dortmund, there were connections between the locations of attack in Dortmund and Kassel. For procedural measures it was important to know of connections to the Neo-Nazi-scene. They had given tangible proof that there were connections via Mr G. to Mr T.. Mr T had been been questioned. His lawsuit had been withdrawn, as the Hessian Interior Minister had not given his clearance. It was necessary to pursue these matters here. It was absolutely clear that the Federal Prosecutor’s Office had a different agenda; however, the Accessory Prosecution was not questioning matters insignificant to the case, which was why they believed these applications to produce evidence should be granted. Attorney Behnke agreed with attorney Bliwier.
This was followed by a statement from Attorney Schön on § 257 StPO concerning the questioning of the witness G. on the 14th day of trial and the presentation of the NSU-video. It had meant a lot to the witness to emphasize what a kind man Mr Özüdoğru had been. This had to be confronted with the video, the way the victims were mocked. The video and its beginning sequence had to be taken seriously, in which there was talk of a network, of actions instead of words and that these activities would continue. This corresponded to the NSU-letter from 2001. If this was taken seriously it meant the confession of a network. There was no evidence that there had never been such a network nor that it didn’t exist anymore today. Attorney Hoffmann’s presentation of song lyrics had to some extent made clear the brutality present in these settings. The execution of these crimes indicated a network. Could one really believe that Böhnhardt and Mundlos had worked on their own as megalomaniac snipers without contact to comrades, asked Schön, and could two people really conceive this video. This was highly unlikely. Assuming that this network had existed and still existed, it was virtually imperative to assume that the accused Zschäpe was aware of everything. That she could not have been involved was absurd.
Götzl complained bitterly about the form of this statement. At 3.55 p.m. the session was brought to an end.
Attorney Scharmer made the following statement concerning the officials’ conversations with Zschäpe:

“If Ms Zschäpe says that if she were to testify, her testimony would be extensive and complete, as she was not someone who didn’t own up to her deeds, then this implies that there are deeds to own up to. The BKA’s official’s statement today was in turn an incriminating piece of evidence against Ms Zschäpe.”