This has never happened before. Not in the first Auschwitz trial or other major Nazi cases, not in the trials of the left-wing terrorist Red Army Faction at Stuttgart's Stammheim prison or in other significant national security-related trials in the past. Nor in trials relating to accidents that led to hundreds of deaths and injuries.
But in the trial surrounding the so-called National Socialist Underground (NSU) -- a neo-Nazi terrorist cell accused of 10 murders, most of them racially motivated -- 71 joint plaintiffs their 49 lawyers will fill the entire lower section of the courtroom at the Munich Higher Regional Court. Media observers will have to make do with seats in the "balcony" section, which are less desirable because of their distance from the front of the courtroom -- that is, provided they filed an accreditation application early enough to be assigned a seat. The only other option is to stand in line for hours in hopes of securing one of the remaining visitor seats.
This unusual situation is the result of reforms made in recent years to victims' rights laws in Germany. These new laws have substantially expanded the rights of joint plaintiffs, who can now participate in the trial practically on the same level as the public prosecutor. They are allowed to be present at the trial at all times, submit requests to present evidence, question witnesses and much more. Did lawmakers consider that one day there would be a criminal trial garnering international attention, in which such large numbers of victims and surviving family members would make use of these laws? Probably not.
Halit Yozgat, a German citizen from Kassel in central Germany, unmarried and without children, was 21 when, shortly before 5 p.m. on April 6, 2006, two strangers walked into the Internet café his father had recently helped him open. Yozgat was sitting behind a desk that served as a counter. Several computer stations were occupied.
Sitting at one of the computers in the back room of the café was Andreas T., an employee of the state of Hesse's intelligence agency, the State Office for the Protection of the Constitution. As he would later tell the police, T. had gone to the café to see if he had received a message from someone he had met on a dating website, iLove.de.
The two strangers, presumably the right-wing terrorists Uwe Mundlos and Uwe Böhnhardt, walked up to the desk. One of the men suddenly pulled out a Ceska 83 pistol with a silencer and shot the unsuspecting Yozgat in the head. The bullet penetrated his skull horizontally and threw the young man sideways onto the floor. The perpetrators shot Yozgat a second time, either as he was falling or when he was already lying on the floor, this time in the back of the head.
Yozgat's father found his son at 5:05 p.m., but he was beyond help. The young man died at the scene from traumatic brain injuries caused by the bullets lodged in his head.
'Was It Really All Just a Coincidence?'
The presumed shooters, who allegedly killed nine other people, are not the defendants in the NSU trial, which begins April 17. Instead, the trial is directed against Beate Zschäpe, the only surviving member of the three-person cell, as well as four presumed accomplices. Mundlos and Böhnhardt committing suicide on Nov. 4, 2011 after a botched bank robbery.
Halit Yozgat's surviving family members will participate in the trial as joint plaintiffs, accompanied by their attorneys from Hamburg, Doris Dierbach, Thomas Bliwier and Alexander Kienzle. "Our clients are not interested in the scope of the sentence that may be imposed on Ms. Zschäpe," say the attorneys. "They couldn't care less about this woman. Not even an acquittal would bother them. They harbor no thoughts of revenge. But the family desperately wants to see the death of their son and brother explained. They want answers to the question of why the government failed so blatantly, at all levels and for such a long time, and why some of the investigations were marked by such a unusual sense of restraint." The father asks incredulously: "Was it really all just a coincidence?"
It's a fair question. How else should the parents of Halit make sense of the presence of Andreas T., an employee of the state's internal intelligence agency, at the scene of the crime just as the crime was committed? How should they interpret the fact that T., unlike all other witnesses at the scene, says he did not notice the killing or even hear anything unusual? T. reportedly told a psychologist that he may have noticed something but "suppressed" it.
Suppressed? The investigators made no headway with a so-called cognitive interview, which includes a reenactment of the incident to help improve the memory of the witness. The psychologist questioned T.'s willingness to remember what happened and believes that his claim of having repressed his memories is impossible.
Confidential Informants Not Allowed to Testify
On top of other details Halit's family finds suspicious, there's the the fact that T. himself was once a suspect. But despite that, Volker Bouffier, then the Hesse interior minister and now the state's governor, refused to allow the sources T. had been in contact with on the day of the murder to testify, even though the public prosecutor's office and the police had a pressing interest in their testimony. The State Office of Criminal Investigation emphatically asked Bouffier for the release of records, but to no avail.
A police memorandum suggests that an interrogation "and the resulting loss of T.'s sources" would, in the opinion of the state intelligence official in charge of preserving secrecy, constitute "the greatest possible disaster" for the agency. Why?
What should the surviving family members of a murder victim think when the state intelligence agency cynically notes: If such interrogations were approved, it would be easy for foreign agents to cripple the entire German domestic intelligence system. All they would have to do is place a dead body near a handler or one of his informants.
What is so striking about these oddities is that police officer Michèle Kiesewetter was then shot to death in the southwestern city of Heilbronn a year later, on April 25, 2007. Or rather, her murder was allowed to happen, since the police still were not on to the neo-Nazis. The Yozgat family's attorneys speculate that the authorities might have tied Mundlos and Böhnhardt to the murders earlier if they had been able to question any right-wing sources Andreas T. had spoken with on the day Halit died.
Concerned with Getting Closure
Dierbach, Bliwier and Kienzle are established criminal defense lawyers, and they are unaccustomed to representing victims and their families. But perhaps their current role isn't all that different. "In fact, we're experiencing the same thing we usually do," says Dierbach, looking slightly amused. "The judiciary tries to exploit the victims so as to limit the rights of the accused. But the victim is no longer available, for judicial purposes or from the standpoint of legal policy."
The attorneys representing the joint plaintiffs are not interested in denigrating the defendants even further. Rather they're concerned with their clients' right to get closure. This too, they argue, is one of the goals of a criminal trial. If it isn't achieved, the joint plaintiffs become newly embittered and disappointed, and old wounds are reopened. However, they add, closure is achieved first and foremost when monstrous acts are fully clarified, and less through the court's efforts to write a verdict immune to appeal.
When one considers that the chairman of the 6th Criminal Division of the Munich Higher Regional Court, 59-year-old Manfred Götzl, was once a judge in a jury court, it makes sense that he would not be too concerned with the demands of the victims, the joint plaintiffs' attorneys or even the defense attorneys.
The president of the Munich Higher Regional Court, Karl Huber, also downplayed such expectations in a press release issued in mid-March, when he wrote: "The court is not just another investigative committee. Rather, its job is to conduct a trial, the legal and primary goal of which is the question of the individual culpability of the defendant, and of her full or partial guilt." According to Huber, this is the sole objective of provisions in the German criminal code and the German judicature act.
Victims Increasingly Demand Validation
On the other hand, for some time now victims have been increasingly pushing their way into criminal trials. And now that they are equipped with ample procedural rights, they are expected to -- and want to -- actively participate in and shape these trials. So can their concerns simply be dismissed with references to the goals of the proceedings, as was the case prior to enactment of the new victims' rights legislation?
In the past, the victim was merely a witness. His or her wishes were dismissed as disruptive and incapable of being satisfied in a criminal trial. "Of no relevance to the court's decision-making process," was the standard argument. Today victims are insisting on their rights. This contradiction has never been as visible as in the upcoming NSU trial. This too is a consequence lawmakers likely didn't anticipate.
Joint plaintiff attorney Angelika Lex, who together with her colleague Yavuz Narin represents the family members of murdered Greek immigrant Theodoros Boulgarides, told the media that joint plaintiffs "want to know why they, of all people, became victims. They want certainty on how all of this came about and what happened to make them a target of the NSU." In addition, says Lex, they finally want to be perceived as victims, after being subjected to false accusations for a decade. They want to be rehabilitated and discover the truth, says Lex.
Gamze Kubasik, whose father was killed in the western city of Dortmund two days before the murder of Halit Yozgat, wants to give the deceased a voice in the trial and "show everyone what he was really like." That's because he was not a drug dealer, as investigators had suspected, but a member of the Kurdish-Turkish Alevi religious group who had been persecuted at home, and who loved Germany and his new life there.
The Simsek family is represented by Munich attorney Stephan Lucas and Jens Rabe, who practices in Waiblingen near Stuttgart. Enver Simsek was Mundlos and Böhnhardt's first fatal victim. On Sept. 9, 2000, presumably at around 1 p.m., the killers approached the back of a delivery van parked along the busy Liegnitzer Strasse in Nuremberg, where Simsek, a florist, was sorting his merchandise. One of the two men suddenly fired six bullets in close succession and at short range from the Ceska 83 at the head of his victim, who collapsed. Then the second killer shot three more bullets from his Bruni pistol at Simsek, who was now lying on the floor of the van. They photographed their seriously injured victim and closed the door at the back of the van.
Simsek was found at 3:28 p.m., after concerned customers had called the police due to his unusually lengthy absence. He died two days after the attack, at 38.
A Desire to Move On
Simsek's daughter Semiya, who was 14 at the time, is determined to see the defendant, Zschäpe. "She wants to track down this phantom that tormented her for years. She wants to finally find a human being in her," says Lucas, Semiya's attorney. There is one question that particularly motivates the young woman: Did it ever occur to the killers that their victims had families?
Lucas and Rabe have taken great pains to find out what is especially important to their clients and whether it can and should be introduced into the trial. "We have tried to understand the family, and now we have to try to take the court along on this journey," says Rabe. The fact that there are so many victims creates a risk that the action will stall, that their arguments will be of poor legal quality, and that the court will quickly cut them off.
Lucas, who is familiar with the conditions in Munich, says that presiding judge Götzl values at least a "perceived professionalism." But will this legally brilliant judge be capable of exhibiting the degree of sensitivity that the joint plaintiffs expect of him? If the balancing act between stirred up emotions and levelheaded strategy fails, the attorneys fear, "Götzl will have the entire courtroom against him." And probably not just the courtroom.
If a surviving family member or an injured party decides to take part in a criminal trial, says Lucas, this has to give him a sense of progression and satisfaction. Semiya Simsek, for example, hopes to be able to bury the horrible past after the trial and regain a normal life. "She is determined not to become a victim for life," say the attorneys. They note that their client knows that Zschäpe has the right to remain silent, even if she wants to hear the defendant say why her father had to die. Most of all, however, she wants to understand the verdict, whatever it may be.
Expectations of the trial are clearly high. But a look at the list of witnesses being called to testify suggests that the court will not budget much time for questions of the defense, or for the participation of the many joint plaintiffs and their attorneys -- not to mention motions, position statements or objections. Apparently the court wants the trial to proceed quickly. In the Yozgat case, for example, the first police witness is scheduled to appear at 9:30 a.m., the second one at 10:15 and the third at 10:45. An hour has been allotted for the testimony of Halit's father, and no more than an hour-and-a-half for Andreas T., the state intelligence officer.
"The worst thing for the Yozgat family," says attorney Dierbach, "would be if Götzl only turned to the joint plaintiffs as a pure formality and otherwise ignored them. We don't want anything unreasonable when we ask for explanation. This is one of the goals of this trial."