On April 17, the criminal proceedings against the single still-alive putative member and four accused co-perpetrators of the German neo-Nazi terrorism group 1] The OLG has since been heavily criticized in public by both, German  and Turkish  media and politicians but did not reconsider its decision. Furthermore, it did not even accept German journalists whom had been lucky enough to receive a seat, voluntarily giving up upon it in order to enable a Turkish colleague attendance .
As in most western constitutional states, the public’s right to observe criminal proceedings is essential to the German legal system (§ 169 GVG, Art 6 ECHR). In the case of the NSU trial, I think that the public’s interest and that of the Turkish state in observing very closely is more than justified. The fact that in the home land of national socialism, terrorists could act for years without being stopped, is scaring enough. This case became even more scaring when it became public that various state authorities had seemingly failed completely over the years. Instead of investigating the possibility of politically motivated murders, a Mafia background was assumed and investigations against the victims’ friends and families were launched. Moreover a number of interesting documents was wiped in various organizations. The NSU only finally collapsed after two of their three core members committed suicide in 2011 when they thought they had been caught by the police after robbing a bank. The third member that will now be held responsible in the said trail surrendered to police shortly after (see ref 4 for a good summary). The German state has failed many who believed it would prevent neo-Nazi terrorism from occurring in Germany. Maybe even worse, it has failed those who have joined our society just recently. Many of them hard working, successful business owners like those preferably murdered by the NSU.
I do believe that the authorities who had failed so dramatically in stopping the NSU earlier did not do so with any dishonest intention and many of them will now wish they had acted differently over the years. However, their effort to convince the public about an ongoing mind-change is very limited, to say the least. Unfortunately, the OLG München does little to change this situation for the better but rather contributes to making it worse. After the investigating authorities have lost their credit, the legal system would have had the chance to save what can still be saved. They have chosen to go a different way. This hurts a lot for anyone who wants to believe in this state and its authorities.
The choice of the policy for accrediting journalists is at the discretion of the chairing judge and cannot be changed by politics. Now, there is a stereotypical misunderstanding in the German society that says something like,
If something is not subject to political decisions then it must not be criticized. We have heard the same misguided argument many times, most often in conjunction with the freedom of speech (
Don’t you know about the freedom of speech; you must not criticize me for what I’ve said.) or the so-called freedom of art (
How dare you calling this artwork stupid; it’s art, after all.). One can nicely apply both patterns to the public discussion that took place after a questionable poem was published exactly one year ago, today.
As it became apparent that the OLG’s decision would cause public disappointment, people have been suggesting replacing the first-come-first-serve with a priority-based policy. Maybe grouping media into categories and allowing a member of each category to attend. I doubt that this would have been an appropriate solution. It is a bitter irony that not a single Turkish journalist has received a seat. But a different policy would have deprived other people of their seats and the decision about who has a better right to attend is one that should not be made by the court. If it did so, one would have to fear that it could prefer those media who will report in a benevolent way.
The problem here is not the policy for awarding seats. The problem is the ridiculously low number of seats for the criminal proceedings of such an important case. While it is clearly the most convenient and probably also the cheapest solution to use the in-house room, this narrow-minded choice of the simple over the correct solution has further degraded Germany’s dignity in this so important case.
Needless to say that there would have been a lot of alternatives in the city of München:
- Nationaltheater: 2100 people
- Audimax at the TU: 1750 people
- Residenztheater: 1000 people
- Grand Auditorium at the LMU: 600 people (the bigger Audimax is currently closed for a refurbishment until 2014)
- And applying the STFW pattern also yields: http://www.muenchen-locations.com/locations/
Of course, I’m not the first one to suggest using one of those rooms and of course, the court has already been reported that using any room but the selected one cannot be justified because of security concerns. It is hard to see how a group of three people, two of whom are dead and one is arrested, can threaten our state enough to make it impossible to demonstrate our state’s will and ability to bring this terrible story to a good end. Surely, the efforts for the police to ensure the security of the proceedings would be significant if an unconventional location were to be used. However, our police has demonstrated many times, that it can do such a job perfectly well. It can do so for sports games and for international meetings of politicians. It should be able to do so in this case where nothing less than Germany’s international reputation as a country that is committed to do whatever it takes to protect anybody from the reminiscences of national socialism is at stake.
But the most destructive question that is raised by this sad story is perhaps the following: How should this court be able to do this case justice, if it can’t even manage to organize a meeting room?
Fortunately, a number of honorable people have raised their voices in this discussion and it seems that there is kind of a tendency to assume that there is nothing in Germany’s books of law that prohibits employing a different approach than the one taken by the OLG but on the contrary, eventually, there is something that commands it [5, 6]. As announced just recently, a Turkish newspaper, Sabah, will now take its chance and litigate its right for a seat at the Federal Constitutional Court (BVerfG) and other newspapers consider taking equal action . While the chances for those appeals might not be too high, it was the single right decision to make. If they succeed, the OLG München gets another chance to correct its misconception and Germany gets a new chance to recreate its dignity. If the BVerfG cannot find a reason to annul the OLG’s decision, then, at least, we have tried; perhaps more importantly: Turkish media will have demonstrated that they resort to the tools of the constitutional state to defend their interests rather than counting on taking political influence.
When Norway was shocked by a terrorist attack of unprecedented violence in 2011, the nation left no doubt that it would do whatever it takes to make the trial as fair and open as possible. 170 media from all over the world sending a total of 730 journalists have been accredited for the proceedings . Many aspects of the trial might have been disturbing to the German observer. For example, broadcasting proceedings is strictly disallowed in Germany (§ 169 GVG) and this is considered and essential component of a fair trial. Such national alterations in the conception of what is fair are perfectly natural and anyone is well advised not to rush into criticizing each other for this. What can be said is that the Norwegian court was aware of the trial’s dimension and did justice to it. I wish Germany could do that, too. Maybe it is not yet too late.
- Julia Jüttner, Platzvergabe beim NSU-Prozess: Münchner Richter bleiben stur. Spiegel Online, March 27 2013, retrieved on April 4 2013.
- NSU-Prozess: Ärger über Nicht-Zulassung türkischer Medien. Spiegel Online, March 26 2013, retrieved on April 4 2013.
- Türkei interveniert bei Westerwelle wegen NSU-Prozess’. Stern.de, March 31 2013, retrieved on April 4 2013.
- Nationalsozialistischer Untergrund. In: Wikipedia, the free encyclopedia, retrieved on April 4 2013.
- Martin W Huff, Radio Arabella darf kommen, Hürriyet nicht. Legal Tribune Online, March 27 2013, retrieved on April 4 2013.
- Volker Boehme-Neßler, Ein bürokratisches Trauerspiel. Legal Tribune Online, April 3 2013, retrieved on April 4 2013.
- Türkische Zeitung klagt gegen Platzvergabe bei NSU-Prozess – Kritik am Gericht dauert an. Deutschlandfunk, April 4 2013 12:00, retrieved on April 4 2013.
- Merete Skogrand and Thea Steen, Kristopher Schau skal dekke Breivik-rettssaken. Dagbladet, March 14 2012, retrieved on April 4 2013.