Report 21: Trial day July 10, 2013


Seven witnesses, one application to produce evidence, one judicially-rejected application, and two statements brought forward by attorneys: The 21st day of trial had a lot to offer and addressed not only procedural events such as the rejected application for the defendant André E.’s release from the trial, but also the credibility of the defendant Holger G. Above all, however, the murder of Enver Şimşek was addressed: Officers and witnesses described the scene of crime in disturbing detail. Other witnesses had seen men in biking apparel at the florist’s vehicle and had thus given valuable leads that were never seriously pursued.

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The hearing began at about 9.40 a.m. Co-plaintiff Adile Şimşek, wife of the murdered Enver Şimşek, was also present.
The first witness to be called was detective constable Kr., who had worked as crime scene technician at the scene of crime on Liegnitzer Straße in Nuremberg on September 9, 2000. For the most part, his statements matched those of the witness S., who had testified on the 20th day of trial. Kr. stated that he had taken the photographs from the folder of images that S. had shown the day before.
He had been on on-call duty at the weekend, and had arrived at the scene of crime at about 3.30 pm.; other colleagues had already been present. Şimşek had already been in the Klinikum Süd when Kr. had arrived, he had been in a critical condition. The vehicle’s sliding door had been open. A large pool of blood and bloodied pieces of plants had already been visible from the outside: Kr. stated he had then begun with the inspection of the crime scene. Kr. also reported several bullet casings with the calibre 6.35 and 7.65. He attributed the overturned plant pots and pieces of plants, which had been sprayed with blood, to Şimşek’s death throes, or the medics’ rescue attempts. Initially, there had been no signs of a fight. After the first securing of evidence, the vehicle and the florist’s stand had been seized and taken to the police station at about 7.30 p.m. for further inspection. Kr. also reported a defect in the vehicle’s roof, which had been lined with Styrofoam. The LKA had later inspected the defect more closely; the penetration had been caused by a bullet. At a later point during the hearing, Kr. would say that the area surrounding the scene of crime had been searched using a metal detector and uniformed police officers, in order to find the bullet in question, yet this had not been successful. The driver’s cab had apparently not been searched. Fingerprints had been found in the area of the mudguard and the passenger door. Kr. reported that these had later been attributed to Şimşek himself, some of his relatives, as well as an employee of the towing company that had transported the vehicle. There had been no fingerprints on the sliding door. Upon Judge Götzl’s request, Kr. reported on the traces of blood. The pool of blood had covered approximately 70 by 50 centimetres; the wall opposite the sliding door had been covered with a large number of blood spatters up to a height of 1.85 metres. There had not been as many spatters on the other walls. The sliding door had shown no traces of blood at all: “That indicated that the door had been open at the time of the crime.” Kr. reported that he had found one of Mr Şimşek’s teeth in the puddle of blood. The Liegnitzer Straße was a busy road, there were cycle paths on both sides, and the area was highly frequented.
Next to be called was the witness L., detective chief superintendent of the criminal investigation department in Nuremberg. His statements concerned a projectile that had been found by a doctor attending Şimşek’s reanimation on the day of the attack. The doctor had carried the projectile around in her white coat for a few days and then passed it on to the police. They had then taken the bullet to the autopsy, so that they had then had a projectile to compare to those found during the autopsy.
Co-plaintiff Yozgat’s attorney Dierbach then brought forward an application to produce evidence that had been announced at the beginning of the day’s hearing. She requested that the detective La. who had accompanied the transport of Zschäpe to Fulda (cf. Report #18) be called as a witness. La. would testify that Zschäpe had not been obliged to answer any questions, and that it had been explicitly mentioned that note would be made of any kind of conversation. La. would confirm that Zschäpe had stated that she would possibly testify, and if she did so, this would be extensive and complete, as she was not somebody who didn’t own up to their deeds. The application’s main concern was the usability of Zschäpe’s statements during the transport. It was not relevant whether this had effectively been an interrogation or not, what was crucial was the instruction of her rights; Zschäpe had not been deceived. The conversation was of evidential importance for the question of guilt. Zschäpe herself had assumed to have committed serious crimes.
Senior Prosecutor Greger stated that the federal prosecution was not opposed to this matter; it had already listed the witness’s name anyway. Several co-plaintiff attorneys stated their agreement. Zschäpe’s defending attorney Sturm stated that, in view of the fact that the co-plaintiff attorneys had agitated against applications made by the defence, she wanted to take a stand. Yozgat’s attorneys were putting forward motions that were redundant. The witness was not only known, but had already been called to testify.
After a lengthy break, the witness Bu. was called at 11.05 a.m. Bu. reported to have been travelling with his son from his father-in-law’s house clearance to a recycling yard on Saturday, September 9, 2000. The journey there had to have taken place before midday, the return journey in the early afternoon, as the recycling yard closed at 2 p.m. On the way back they had travelled on Liegnitzer Straße into the city and had passed the parking lot on the left hand side. The windows had been cranked down. In passing they had heard tree to four hard, metallic thumps, had looked to he left and had seen two men in cycling outfits who were rapidly walking away. He had not seen where they had gone. These men had been about twenty years old, maybe a bit older; they had had very short hair and one of them had worn a baseball-cap, if he remembered it correctly. Upon Götzl’s request, Bu. stated: “They were really heavy thumps.” These had come from the direction of the delivery van. The vehicle’s door had been open. He had not really understood the situation. The men had not held anything in their hands. There had been no immediate call for action. A hearing had been carried out when he had read of the crime in the newspapers and had then reported to the police. He had not seen another vehicle at the scene of crime. The men had not been running, but had been walking rather rapidly towards Liegnitzer Straße. He had only looked over due to the heavy thumps, and then the two men had run off. Götzl wanted to know how much time had passed between the thumps and the men’s running away. Bu.: “Actually, you immediately looked over.” Götzl quoted Bu. to have stated in one hearing at the time to have seen a male person standing by the sliding door’s footboard, and that the person had moved their right hand towards the vehicle’s interior. Götzl also quoted Bu. to have said at the time that he had not been able to see whether the person had held anything in their hand; another darkly-clad person had been visible to the right of the door, and they had heard two more tinny thumps after they had passed the crime scene. Concerning these quotes, Bu. stated he could not remember. Götzl pointed out that Bu. had stated that what had been peculiar about the two men was that they had not had any bikes with them. Bu. confirmed that no bikes had been visible. Götzl asked about the traffic. Bu. said there had not been a lot of traffic, but every now and again vehicles had passed by. Götzl quoted Bu. as having said during a hearing on October 2, 2000, that the event had taken place between 12.35 and 12.55 p.m. Bu.: “Then one has to take it like that.” Co-plaintiff attorney Scharmer asked Bu. how often he had been questioned. Bu. said he had been questioned once after the crime at the police headquarters, then there had been an exchange of details over the phone, and he had then been visited once more by a detective chief superintendent in 2010, “and that was when there was this temporal adjustment”. Götzl said that the question concerning the time had been asked in 2000. Scharmer asked whether Bu. had been shown photographs during the hearing in 2010. Bu. said that he had not. One of the co-plaintiff attorneys wanted to present Bu. with pictures from the crime scene Keuptstraße. Confusion arose as to which pictures were meant. After two breaks the witness was able to view the images – stills from a video of Keuptstraße, on which two men could be seen; one of them with bikes – at the judge’s table. However he could only roughly confirm the size. The clothing did not fit, it was too casual here. Attorney Basay asked whether he had been shown these images during a hearing, say in 2007. Götzl intervened, saying that she was confusing the father with the son. Basay replied and cited the first name from the report and the birth date of the witness at hand. Bu. said he could not remember, and also not whether he had been shown a video. Basay quoted from the report that Bu. had stated that the person with the bikes had born a certain resemblance to the person that had stood next to Şimşek’s delivery van. Bu. said he could not remember, the size seemed to fit. Wohlleben’s defending attorney Klemke complained that Basay was “only picking raisins”. Basay read out the complete report, in which it was noted that Bu. did not believe he could recognize the men. Bu. repeated that the size could be right. He could not remember anything from the hearing in 2007. Attorney Narin pointed out that Bu. had said that the men had behaved in a strange manner. Narin wanted to know what he had meant by that. Bu. said that this had referred to the behaviour that these young men were dressed in biking gear but had no bikes and were walking away in a strange manner. Attorney Scharmer asked about the hearing in 2010 which Bu. had mentioned.As far as he could remember, they had spoken about the hearing in 2000, and whether anything had changed, said Bu.; he was not quite sure, he had not been shown any images. Wohlleben’s defending attorney Schneiders pointed out that Bu. had said that the two men could have been Southern Europeans; he had recognized from their dark complexion that they could not have been from North Germany. The question had however not been recorded, said Schneiders. Bu. answered that he did not know what to say to that, he hardly thought that he had said that.
After the lunch break, the witness E. was called at 1.15 p.m., who was the son of the witness Bu. E. reported that he and his father had been on their way to his grandfather’s former flat at around midday, they had come from the recycling yard. They had then gone past the road and had heard a load thump. They had turned around; he had first thought there had been an accident. They had seen a delivery van standing in the parking lot, “more like a Mercedes Sprinter”, and he thought to have seen two men running away. He had not seen a lot, as he had been in the passenger’s seat, but he had guessed the men to have been aged 25 to 30. Götzl referred to the witness’s first hearing. Among other questions, he addressed the men’s clothing. E. stated he could still remember that question. He had not been able to confirm the part about the biking gear at the time. Concerning other questions he mostly stated that he could not remember: This concerned for example the temporal estimate that the event had taken place between 12.45 and 1 p.m.; the fact that the sliding door had been open; that he had seen two men standing next to the door with their backs to him, one of them wearing a cap; and that he had thought that the situation looked like a fight. He could also not remember that the man with the cap had made hectic movements towards the vehicle’s interior, and that he had perceived a moving shadow within the vehicle. Götzl pointed out that he had stated that when they had gone along ten more meters, he had heard more than two metallic sounds. E.: “I would have thought that I only turned around because I heard the noise.” Then the hearing in 2007 was addressed. E. stated that the officers had shown a video, a sequence, in which a man parked a bicycle or picked it up in a town centre. The question had been whether he would recognize the man. He had not been able to recognize anybody. After a question from attorney Basay, the issue was addressed whether the hearing had been recorded and whether E. had signed anything. E. said he could not remember. He had not discussed his statements with his father, as he had not lived in his parents’ home anymore in 2007. He did not know anything about the questioning of his father in 2010. On the initiative of attorney Dierbach, the witness was presented with a declaration of consent regarding a tape recording. He did not remember the document, stated E., but confirmed that the signature was his.
The next witness was detective chief superintendent Gr. of the LKA in Bavaria. The issue addressed was the reconstruction of money payments made by the witness G. in connection with the murder of Abdurrahim Özüdoğru (cf. Report #14). The witness confirmed that he had received the deposit receipts and confirmed the witness’s statements in general. G. had deposited an amount of money at 3.51 p.m. and had returned to the shop at about 4 p.m.
The next witness to be called was retired police detective Ki. from Nuremberg. The statements made by the witness M. (who at the time had lived above the tailor’s shop, cf. also Report #14) were addressed. He had carried out the hearing in the night. The questioning of the witness had been one of the first and also most important. M. had claimed to have seen a man in a lumberjack shirt and had also provided a facial composite. Regarding the man, she had spoken of an East German accent. She had stated to have seen this person a few days earlier with the victim; there had been a fight. M. had assumed that the fight had been about an old Mercedes, which seemed to belong to Özüdoğru. The two had stood around a car, a dark Opel with a trailer. M. had stated to have been cleaning the windows when she heard the shots. She had heard two shots clearly. Then she had seen a person, and according to her description, this was exactly the man that she had seen before. M. had reported that the man had casually got into a car and driven away. Only at a later point had the witness spoken of a blond woman. He was not quite sure, but this had apparently referred to a group that had stood outside of the shop. A presentation of images had been without result. She had never said to have seen the victim lying on the ground. This, stated Ki., had been an important clue, as “it would have impossible not to hear him”.
The next witness to be called was the paramedic H. He had been the one to inform the police about the attack on Şimşek. He had wanted to buy flowers at the florist’s stand. A dark-skinned couple had been there in a dark-blue Mercedes. They had said that they had also wanted to buy flowers, but that the florist was not there and they had then left. H. said he had sat and read in the car. After ten minutes he had felt strange about the situation. He had not wanted to leave the stand unattended and therefore called the police. The answer had been that a patrol car had shortly passed the stand and that the florist had still been present. He had continued to wait and had called the police once again after five minutes. The patrol car had been there shortly thereafter. Together with the policemen, they had had looked towards the vehicle. The driver’s door had been open. They had looked into the back of the van, but had only seen flowers due to the partition. Then they had opened the sliding door and found Şimşek. He had seen large amounts of blood. He had first assumed hematemesis, vomiting of blood, but had then seen the bullet casings. Şimşek had been panting, “which wasn’t easy”. He had lain on his back, with his torso slightly raised due to a flower box. H. stated to have removed several objects to reach Şimşek. His legs had lain in direction of the door; his torso in direction of the vehicle’s closed side. H. stated to have fetched his equipment from his vehicle. The Sprinter had been too narrow, so he and a policeman had moved Şimşek outside. When asked for an estimate of the time this had taken place, H. said that it had been in the afternoon. Götzl pointed out that H. had stated that Şimşek’s arms had been slightly bent; that he had bled heavily from the head, and also in the mouth and throat; that Şimşek’s head had leant slightly to the right-hand side. H. said: “If that’s what it says.” Götzl referred to H.’s statement to have taken Şimşek’s mobile phone when he inspected his left side for any wounds. H. stated to have spent 10 to 15 minutes at the side of the road between the conversation with the couple and his call to the police. He could not say this for sure, as he had been reading.
Following the questioning of this witness, Götzl read out the decree rejecting André E.’s application to be released from the trial as long as crimes were being dealt with that he was not accused of.
Holger G.’s defending attorney Hachmeister then read out a statement in accordance with § 257 of the code of criminal procedure, concerning the statements of Dr Moldenhauer on the previous day of the trial. Moldenhauer’s testimony had been credible and without contradictions. Even if the witness had misdated G.’s withdrawal from the right-wing scene, this did not discredit his statements in any way. The witness had confirmed G.’s essential statements. Thus it could be concluded that G. had testified voluntarily and extensively, had provided new leads of investigation, and that G. had specified and added to his initially incomplete statements. The difficult questioning of G., his problems with placing events in time and the fact that he had bring himself to testify did not oppose the voluntariness of the statements made. G. had admitted to the delivery of the weapon to Böhnhardt, Mundlos and Zschäpe although this had not been necessary. Concerning the indicatory political discussions, these had been abstract discussions of militancy, and had never addressed concrete and purposeful actions. This matched his client’s statements. Regarding the statement that one could not save the world with five people, this had conveyed the indignation directed towards the weapon’s recipients in other words. It had become comprehensible that G. had known nothing of the crimes committed. The witness had judged G.’s remark that he would have “scarpered” had he known of the Three’s crimes to have been authentic, and had also described G.’s dismay regarding the crimes.
Co-plaintiff attorneys Kuhn and Hoffmann then read out a statement in accordance with § 257 of the code of criminal procedure, concerning the same statements. The first of Moldenhauer’s statements to be addressed was that G. had claimed not to have known that he was transporting a weapon, but had not been able to get rid of it during the train journey without getting into trouble; Moldenhauer had seen this as a contradiction. Thus G.’s claim not to have known that he was handing over a gun was a mere attempt to justify his behaviour. Just the remark that one could not save the world with five people during the delivery of the weapon already showed that G. had seen the use of the weapon for ideologically motivated crimes as possible or probable. This proved that, during his acts of support, G. had recognized that it was possible that ideologically motivated murders could be carried out by the trio, and had nonetheless continued his support. Moreover, Moldenhauer had stated that G. had claimed during a judicial interrogation not to have known that the Three had still been in hiding, the newspapers had reported that the warrant for their crimes had expired. However, he had still applied for a new passport with an image that resembled Böhnhardt in 2011, and had given it to the Three. Thus it was certain that G. had not handed over the passport to support the Three because he thought they had were still in hiding due the first charges in 1998. On the contrary, G. had assumed that the Three were no longer being searched for regarding these crimes. This showed that G. had had knowledge of further issues that required a cover-up.
The hearing was brought to an end at 2.45 p.m.

Co-plaintiff attorney Scharmer made the following statement:

“The attack in Cologne in 2004 and the fact that two men with bikes were seen as suspects there should have been connected a lot earlier to the Ceska murder series, where there had also been reports of two suspects with bikes or wearing biking gear. If these leads had been investigated early enough and in greater depth, then […] murders could have been prevented […]. Instead, the investigating authorities meticulously followed leads in great detail that were connected to the premise that the culprits came from the victims’ environment and, in particular, also had a background of migration. The authorities’ behaviour verifies the fundamental problem of structural racism concerning the investigations at hand.”