Flaws of a State under the Rule of Law

Introduction

Where politics and the Zeitgeist exert heavy pressure on justice, one must expect that unjust judgments will be handed down on purpose. For this there is no need either for a state with a constitution which is openly contrary to the rule of law or a condition similar to civil war. With respect to normal prosecutions of criminals, the legal procedures of nations observing the rule of law and those not observing the rule of law are similar. Only in politically motivated prosecutions will it show whether or not judges follow the rule of law, that is, whether they can be forced by trial procedures not to deviate from it. For some time there has been a discussion as to how far the character of the Federal Republic of Germany, as a nation observing the rule of law, has been endangered by certain phenomena of the Zeitgeist.

One case in particular caused severe accusations from many sides of the German society, so that the political distortions within the German legal system have indeed reached such a degree that even legal experts are seriously troubled: In 1991, Günter Deckert, then leader of the German nationalistic party NPD (Nationaldemokratische Partei Deutschlands), organized a convention where Fred. A. Leuchter, a U.S. expert for execution technologies, lectured about his technical and chemical research regarding the alleged “gas chambers” of Auschwitz. Deckert translated his speech for the audience into German. He was subsequently prosecuted for this and eventually sentenced to 12 months on probation. Following a huge media outcry and massive intervention of national as well as international politicians, Deckert was put on trial again – at a different court with different judges – and sentenced to two years without probation.

His first judge, Dr. Rainer Orlet, was threatened to be prosecuted for violating the law – his sentence was considered to have been too mild – but was eventually only forced to retire.[1] Deckert’s publication about this affair,[2] together with other “thought” crimes like writing naughty letters to Jewish representatives and selling prohibited revisionist literature – were prosecuted as well and, together with his first conviction, led to an accumulated prison term of more than five years. Eventually, even his defense lawyer Ludwig Bock was prosecuted and sentenced for too vigorously defending Deckert by asking for permission to introduce revisionist evidence. This was considered criminal behavior because Bock allegedly indicated with this that he identifies himself with revisionist thoughts.[3] In a similar case, the late German right-wing defense lawyer Jürgen Rieger was put on trial in 2000, because during the proceedings against one of his clients in summer 1996, he had filed a motion to introduce me as an expert witness as evidence for the fact that his client’s revisionist claims were well founded. Though Rieger was initially acquitted by the Hamburg District Court,[4] the German Federal Supreme Court subsequently overturned this verdict, demanding the sentencing and punishment of every lawyer who dares to ask for, or introduce, evidence challenging the common “knowledge” about the Holocaust.[5] Thus, it is clear that every judge who dares to hand out lenient sentences to revisionists at least risks an abrupt end of his career, and defense lawyers trying to defend their clients effectively may themselves be prosecuted for that.

In what follows, I shall show by my own experience which indicates that the rule of law in the German state has many flaws that make it easy for the judicial system in general and the judges in particular to deliberately make bad decisions uncorrectable, because they have the appearance of being decided according to the rule of law.

Again and again in various sorts of company I encounter the same disbelieving astonishment as to the state of the German criminal justice system at the beginning of the prosecution avalanche against me. Despite my lack of formal qualification, I believe I have been called upon to raise my voice on this subject, since the numerous formal defects of the German legal system have apparently not been dealt with by those with the professional competence to do so.

Since I am no legal expert but only one who has been self-educated on the subject through painful experience, I hope readers will excuse my ineptness of expression. If I make frequent reference here to my trial before the District Court of Stuttgart (ref. 17 KLs 83/94), it is because these examples serve to indicate major problems in the German system of government and its judicial system.

No Word-For-Word Record

Until the end of the 1970s, a record of the proceedings was kept during German criminal trials, in which the statements of witnesses and responses of the defendant were set down. The contents of this record were never relevant for an appeal or revision. For example, if in the record it said “The witness said A,” but in the decision the court stated “The witness said B,” the assertion in the decision would be taken as the fact and that in the record would be considered meaningless.

In the course of a change in the German criminal law at the end of the 70s, the duty to make entries in the record of the proceedings was removed for reasons of economy for all courts higher than the county courts. What appears now in German trial records is something like “The witness made statements on the subject” or “The defendant made a declaration.” The substance of what was said cannot be found there and it can no longer be proven by documentation when the court uses statements incorrectly.[6]

In other nations observing the rule of law, such as the United States, Canada, Australia, or Austria, word-by-word transcripts of the proceedings are prepared.

The anti-justice consequences of the present German system can easily be imagined, and I will briefly illustrate it with three examples from my own trial.

1. The issue in this trial was whether or not I had participated in the distribution of a version of my expert report with added commentary by Generalmajor O.E. Remer in April 1993. The court was interested in, among other things, how Remer had come into possession of that particular version of my report which he used for producing his printed version. In the trial I had stated that Remer had probably received it from his attorney Hajo Herrmann. The court was more than eager to nail me as a liar, so they were trying to make Hajo Herrmann concede that he never sent a copy of this particular version to his client. Remer had reproduced the “second version of the 3rd edition” of my report, which the court called version “F2”.[7] In the trial report made by an observer, the questioning of Herrmann on December 6, 1994, ran somewhat as follows:

What can be seen from this is that the witness Herrmann was basically confused and could not remember details about which version he had sent to whom and when. But at least Herrmann remembered clearly that he had requested changes to the expert report, so he concluded logically that I must have sent him copies of this rearranged version; after all, I had prepared this version on his request. The court, however, described the statements of the witness on page 199 as follows:

The difference between the two texts is obvious: The independent observer reported that Herrmann did revise his initial statement after I made him remember that it was Herrmann himself who made me prepare this particular version “F2,” which leads to the logical conclusion that he did, of course, receive at least one copy of this version he had specifically demanded. But the court simply “forgot” about this detail. From its own faulty reasoning, the court concluded on page 202f.:

2. The court was also eager to try to prove that I did tell my sister about Remer’s commentary before Remer had even started to distribute my report, which would have been possible only if I had been involved in the production of said commentary. The first copies of my report mailed out by Remer arrived at their destinations briefly after Easter 1993. If I had told my sister already before Easter about these comments, then this would put a “nail into my coffin.” According to the above-mentioned independent observer, the sister of the defendant made the following statement on January 24, 1995:

The court described this witness statement as follows (p. 210):

However, according to the independent observer, my sister thought “it was possible” that Remer’s mail-out had already taken place before Easter 1993, which is clearly incorrect – all copies of Remer’s version were mailed to their recipients only after April 15, 1993. This proves that my sister’s memory was wrong regarding the chronology, which is also supported by her own statements under intensive inquiry both by the judges and by me that she simply could not remember when she had heard what from me. The fact that the witness could no longer remember the exact chronology was duly omitted by the court for obvious reasons. Who of us can remember, down to the exact day, what we heard from our siblings two years ago? But for the court, this was a major stepping stone to its verdict.

3. Another way to prove me a liar was the court’s attempt to prove that my statements regarding contacts with the Remer couple were a lie. By showing that I was hiding my contacts to Remers, they sought to prove that I was in fact involved in their plot to hide the truth from the court. On my contacts with O.E. Remer, the independent observer wrote the following on the trial day November 11, 1994:

For January 24, 1995, one reads there:

But the court portrayed both happenings, which it interpreted as evidence of my lack of credibility, as follows (p. 148ff.):

Since the original of the application form to the revisionist gathering in Roding had been introduced as evidence during the trial and not a copy, as the court falsely claims in its written verdict, it is easy to see that I was not present at the gathering in Roding. In a later publication, my defense lawyer confirmed the report of the independent observer and criticized the court harshly for this rather odd mistake.[9] One can see even further that the report of the independent observer is correct with respect to my responses. If one considers that Remer was absolutely not involved in arranging the publication of the brochure Die Zeit lügt!, i.e., that it did not lead to any correspondence or meetings between Remer and me (not even the court claimed that), that it was not me who decided to put Remer’s name and publishing house on the imprint of the brochure,[10] and that in the letters and statements quoted by the court I was always writing and speaking about actual dealings with Remer – there was none in connection with the brochure Die Zeit lügt! – it must be asked: who lacks credibility here?

A large number of similar cases could be shown in which the court made observations on the statements of mine or of witnesses that differ from the trial report. Since the differing interpretations of the court were always disadvantageous for me, the question must be raised whether we are supposed to believe that these errors were made unintentionally.

Hiding the Purpose of Evidence

It appears possible that in German courts, the written judgment will suddenly present evidence as the main proof of guilt which had remained in the background during the proceedings of the trial, in that the court reinterprets it in a way that had not been mentioned during the proceedings. In this way, it is impossible for the defense to bring in evidence to refute evidence which at first appears to be harmless since no one can tell what evidence the court will use as proof of what fact.

When the defense attorney wants to introduce a piece of evidence, he must always provide a reason for it so that the court can decide on the request. On the other hand, this rule does not seem to apply to the court itself.

Here is one example of that. The court interpreted certain publication details of the original version of the Rudolf expert report used by Remer in his version as well as of the version without comments published by me a few months later as proof that Remer’s distribution activities of his version and the subsequent publication of my authorized version were one single operation planned in advance. As one of the main proofs for this the court pointed to the fact that in the draft of my expert report produced in November 1992 (version F2), Prof. R. Faurisson had not been mentioned in the acknowledgements at the end of the report. He had first been expressly thanked in the authorized version of my expert report published in July 1993 on the inner cover. According to the court, this allegedly proves that the authorized version was planned already in November 1992 (decision, pp. 93, 208ff. Don’t try to find logic in it. There is none.). It did not enter the judges’ minds that I had deleted the acknowledgement to Faurisson from the November 1992 version simply because I feared to be rejected as an expert witness, should any court recognize that I had been in contact and on good terms with the world’s leading revisionist, and not because I already planned to thank Faurisson later in a prominent place in the authorized version. The whole argument spun around this point about the acknowledgement, which first surfaced in the decision and was based on different versions of the expert report that had been introduced as evidence, had never been mentioned even peripherally in the 29 days of the trial proceedings, so that the defense was unable to bring in any evidence to counter this supposed evidence proving the guilt of the defendant.

Introduction of Evidence After the Verbal Decision

It is doubtful whether the introduction of evidence following the trial is admissible. Nevertheless, the District Court of Stuttgart used exactly this method in order to portray me as untrustworthy. As supposed proof that I had manipulated witnesses, on page 170f. of its decision the court stated:

First, the description of the court is misleading, since I had only declared that my computer had been seized, but not that an answer list had been found on it. This document had been mentioned by the court in the trial but it had not been introduced as evidence in the trial. For this reason, the defense attorney did not think it necessary to produce evidence to oppose this imputation, which might have explained that the item was not an answer list intended for use in an upcoming questioning of a witness. In fact, it was a detailed record I had prepared about what Dill was asked and what he answered when he appeared for the first time in front of the court, and this list was prepared after this interrogation, hence could not be used to manipulate this witness at all.

Refusal of Foreign Witnesses Without Reason

In the middle of the 1980s, the German criminal justice system was altered so that motions could effectively be denied to hear the testimony of foreign witnesses in their own country. In the course of the trial concerning Remer’s distribution of my report, it became obvious that several foreign revisionists had participated in the operation indirectly or directly. Since these revisionists faced the possibility of arrest if they traveled to Germany, due to their revisionist activity, they would have had to give their testimony outside the country. Because of the reformulation of the German law, however, it was possible for the court in the final phase of the trial to deny numerous motions of the defense that were intended to hear the testimony of foreign witnesses outside the country on key questions. The effect this can have on the judgment is obvious.

Prevention of Appeal

In criminal proceedings caused by crimes that are considered by the German authorities to have caused major violations of law and order, the trial is held immediately on the district court level, i.e., on what normally is supposed to be the appeal level (the first level is the county court). In such cases, the defendant has only one trial during which evidence can be presented, that is, there is no appeal possible to the verdict of this court! Only a so-called application for a revision of the verdict with the German Federal Supreme Court is possible, but such an application can only criticize errors of form (matters of law). The factual assertions of the deciding court, i.e., description and evaluation of evidence (matters of fact), will not be discussed anymore. Furthermore, it is usually the case that applications for a revision will be denied by the German Federal Supreme Court, if the defense is the only party to request it.

Whoever determines, and on whatever basis, whether or not law and order have been seriously violated by an offender, must remain open. But such a serious violation seems to be always given, if the offense involves massive attacks on political taboos. In such cases – where the defendant’s entire existence is at stake – he has no possibility of reopening the taking of evidence in an appeal.

The fact that recent attempts were made in Germany to deny an appeal even for trials of minor misdemeanors held before county courts for the sake of relieving the workload of the court, shows how little room for maneuver is left to him who gets caught up in the wheels of German justice.

The Arbitrary Evaluation of Evidence

Even if a court has introduced evidence in the course of a trial that made its delicately constructed bridge of circumstantial evidence to collapse by refuting it, this is no reason not to impose a sentence. Here is an example.

In my case, the court had come up with the idea that, already in October 1992, I had planned Remer’s distribution activities of his version and the subsequent publication of my authorized version as one single operation planned in advance (decision pp. 207ff.).

At the same time, on Feb. 16, 1995, the court introduced a letter of mine to the then director of the Institute for Historical Review, dated May 22, 1993, from which it was clear that up to the end of May 1993, a month after the end of Remer’s distribution operation, I still did not know where I could publish my authorized version of the expert report, which indisputably contradicted the court’s thesis that I was already planning to publish the authorized version at the same time as I was allegedly helping to plan the Remer operation.

Here is a second example of the court’s logic-free evaluation of the evidence. In its written verdict, the court conceded that I intended to get the attention of the lay public for my expert report (decision pp. 23f., 108f., 210), so that I had paid attention that there was no reason for the general public to suspect any lack of technical merit and reputation, e.g., by including political comments (decision pp. 17ff., 196f., 218). This was supported by the evidence as a whole and in particular by the documents introduced on June 13, 1995, which were a series of letters that I had written to various persons between 1991 and 1993, all clearly stating that I did not want any political or polemic comments included in or associated with my expert report. However, if one was to follow this logic, one has to assume that I would have sent out – or agreed to the distribution of – a version of my expert report which confined itself to technical discussion but would never have sent out one such as the Remer version with its polemical/political commentary. In the decision the court can escape this logical contradiction only by claiming that I had miscalculated the effect of Remer’s commentary (p. 228).

Incriminating Mitigating Evidence

Having arrived at a verdict in this way, the tens of pieces of exonerating evidence – documents and witnesses – that my lawyer had introduced served the court as evidence of my “criminal energy,” since, according to the court, this exonerating evidence was all partly made up (decision pp. 13, 22, 65, 118-126, 131, 175, 192) and served only to deceive the court:

Which leads to the court’s conclusion:

since:

Conclusions

Given the present circumstances of the criminal justice system in the Federal Republic of Germany, when a judge or a panel of judges intends to render an unjust verdict, they will have no difficulty in doing so as long as they are assured there is no organized public resistance from the media, academia, the police, or the churches.

The statements of witnesses and defendant may be manipulated at will. Evidence may be interpreted any which way in the decision or may be brought in after the process is over. Submitted evidence may be passed over without mention and use of foreign witnesses may be denied arbitrarily.

Exculpatory evidence may be discredited as a deceptive maneuver of the defendant and serve as evidence that the defendant is particularly deserving of punishment. A second trial to try to correct these measures can be denied in case of public necessity. The evaluation of evidence is bound neither by the evidence introduced nor by logic.

The question, how these conditions can be overcome so that further misuse can be reduced as much as possible, needs to be answered by honest jurists and politicians.

Closing Remarks

The court based its refusal to allow for a probation of the sentence of imprisonment not only on my supposedly high “criminal energy,” but also on the fact that I did not seem to have a favorable social prognosis, since I had not only not repudiated my revisionist views, but defended them even more vehemently and kept propagandizing them. As proof for this the court pointed to the book Grundlagen zur Zeitgeschichte,[11] edited by me under a pen name, which had come onto the market just at the beginning of this trial, as well as to the almost complete book Auschwitz: Nackte Fakten[12] found on my computer during a house search conducted in March 1995, i.e., right in the middle of the ongoing proceedings.

With this, a fact was used to harden my punishment that had not even been determined to be a criminal offense in a legally binding decision by a German court in the first place, as was a work which had not yet been published and which therefore could not even theoretically have been a crime. By German law, it is admissible for a German criminal court to take account of the opinions of the defendant-here my historical revisionist opinions-in the weighing of punishment. Through this back-door, the trial against me was turned into a political trial.[13]

Notes

This essay was also published in the appendix of my Expert Report.