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Terror and Law – Is the German Legal System able to deal with Terrorism? – The Bundesgerichtshof (Federal Court of Justice) decision in the case against El Motassadeq -

Published online by Cambridge University Press:  06 March 2019

Christoph J.M. Safferling

Extract

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Germany was the first country to open trial against a person who has allegedly participated in the 9/11 terror attack in the US. Shortly after September 2001 intelligence services in- and outside Germany concentrated on Hamburg as one of the places where the pilots and their supporters planned the attack. The Maroccan national Mounir El Motassadeq was the first who was arrested and charged by the General Federal Prosecutor with (1) abbeting murder in 3066 cases and (2) with being a member of a terrorist organisation . The trial took place before the Oberlandesgericht (Upper Regional Court – OLG) in Hamburg, where the accused resided at that time. He was sentenced by this Court in first instance to 15 years imprisonment – the first conviction for the 9/11 attack. The accused nevertheless appealed to the Bundesgerichtshof – BGH, Federal Court of Justice, and his conviction was quashed and a re-trial ordered at the Court in Hamburg. In reaction to the BGH's decision Motassadeq was released from detention pending trial on 8 April 2004. The accused now awaits his re-trial on conditional bail.

Type
Research Article
Information
German Law Journal , Volume 5 , Issue 5: Security, Democracy and the Future of Freedom: Assessing the Impact of War on Terror on Civil Liberties in Contemporary Democracies , 01 May 2004 , pp. 515 - 524
Copyright
Copyright © 2004 by German Law Journal GbR 

References

1 A second trial was opened against the Maroccan Abdelghani Mzoudi at the OLG Hamburg. He was released on bail on 11 December 2004 and has been found not guilty on 5 February 2004. The public prosecutor has appealed against the acquittal to the BGH.Google Scholar

2 Cases of national security are to be prosecuted by the General Federal Prosecutor in Karlsruhe by virtue of Section 142a, 120 of the Organisation of the Courts Act (Gerichtsverfassungsgesetz).Google Scholar

3 Punishable under Section 211 of the German Criminal Code.Google Scholar

4 Punishable under Section 129a of the German Criminal Code, which reads as:Google Scholar

(1) Whoever forms an organization, the objectives or activity of which are directed towards the commission of:Google Scholar

1 murder, manslaughter or genocide (Sections 211,212 or 220a);Google Scholar

2 crimes against personal liberty in cases under Sections 239a or 239b; orGoogle Scholar

3 crimes under Section 305a or crimes dangerous to the public in cases under Sections 306 to 306c or 307 subsections (1) to (3), 308 subsections (1) to (4), 309 subsections (1) to (5), 313, 314 or 315 subsections (1),3 or 4, 316b subsections (1) or (3), or 316c subsections (1) to (3), or whoever participates in such an organization as a member, shall be punished with imprisonment from one year to ten years.Google Scholar

(2) If the perpetrator is one of the ringleaders or supporters, then imprisonment for no less than three years shall be imposed.Google Scholar

(3) Whoever supports an organization indicated in subsection (1) or recruits for it, shall be punished with imprisonment from six months to five years.Google Scholar

(4) The court in its discretion may mitigate the punishment (Section 49 subsection (2)) in cases under subsections (1) and (3) in the case of participants whose guilt is slight or whose participation is of minor significance.Google Scholar

(5) Section 129 subsection (6), shall apply accordingly.Google Scholar

(6) Collateral to imprisonment for at least six months, the court may deprive the person of the capacity to hold public office and the capacity to attain public electoral rights (Section 45 subsection (2)).Google Scholar

(7) In cases under subsections (1) and (2) the court may order supervision of conduct (Section 68 subsection (1)).Google Scholar

A translation of the entire German Criminal Code is available at: http://www.iuscomp.org/gla/statutes/StGB.htm (visited 27 April 2004).Google Scholar

5 BGH Decision of 4 March 2004, Case No. 3 StR 218/2003, reprinted in: Neue Juristische Wochenschrift (NJW) 2004, 1259.Google Scholar

6 The re-trial will probably commence 16 June 2004Google Scholar

7 FAZ 8 April 2004, p. 1.Google Scholar

8 The Government can issue a so-called „Sperrerklärung“ by virtue of Section 96 of the German Code of Criminal Procedure: “Submission or delivery of files or of other documents officially impounded by authorities or public officials shall not be requested if their superior authority declares that the publication of these files or documents would be detrimental to the welfare of the Federation or of a German Land. The first sentence shall apply mutatis mutandis to files and other documents held in the custody of a Member of the Federal Parliament or of a Land Parliament or of an employee of a Federal or Land parliamentary group where the agency responsible for authorizing testimony has made a corresponding declaration”.Google Scholar

9 For an English translation of the code, see http://www.iuscomp.org/gla/statutes/StPO.htm#96 (visited 27 April 2004).Google Scholar

10 These are articles 101-104 Grundgesetz.Google Scholar

11 Compare ECourtHR Barberá v. Spain, Series A No. 211, para. 59.Google Scholar

12 This is the essential aim of the entire trial process, compare e.g. BVerfGE 63, 45, 61.Google Scholar

13 The BGH has stressed the connection between the “Schuldprinzip” and the fair trial principle in the decision at hand, NJW 2004, 1261.Google Scholar

14 Safferling, Towards an International Criminal Procedure (2003), 306-309.Google Scholar

15 See ECourtHR van Mechelen v. The Netherlands, Rep. 1997-III, para. 55, 63; see also Renzikowski, 54 Juristenzeitung 1999, 605.Google Scholar

16 Compare BGHSt 42, 15, 25; BGH NJW 2001, 2245 and BVerfGE 57, 250, 292 – the difficulties of the German courts with the ECHR in this regard are explained by Esser, Auf dem Weg zu einem europäischen Strafverfahrensrecht (2002), 677-681; also Weigend, 21 Strafverteidiger 2001, 63, 64.Google Scholar

17 BGH NJW 2004, 1261.Google Scholar

18 BGH NJW 2004, 1261.Google Scholar

19 § 244 III 2 StPO.Google Scholar

20 BGH NJW 2004, 1261.Google Scholar

21 See Meyer-Goßner, Strafprozessordnung (46th ed. 2003), § 261 MN 2; Safferling, Towards an International Criminal Procedure (2003), 259-60.Google Scholar

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23 „Particularly careful weighing of evidence“, BGH NJW 2004, 1261.Google Scholar

24 The BGH uses the German term „Zweifelssatz“, see BGH NJW 2004, 1261.Google Scholar

25 See BGH NJW 2004, 1262 with reference to dissenting views by several authors.Google Scholar

26 BGH NJW 2004, 1262.Google Scholar

27 BGH NJW 2004, 1262.Google Scholar

28 See also Meyer-Goßner, StPO, § 261 MN 26 and Safferling, Towards an International Criminal Procedure, 260.Google Scholar

29 Compare Article 6 § 3 d ECHR and Article 14 § 3 e ICCPR.Google Scholar

30 See eg. Rzepka, Zur Fairneß im deutschen Strafverfahren, 2000, 347, 455.CrossRefGoogle Scholar

31 See also Renzikowski, Festschrift für Lampe (2003), 791, 802.Google Scholar

32 See BGH NJW 2004, 1263.Google Scholar

33 See BGH NJW 2004, 1262.Google Scholar

34 One example: the criminal justice system of Northern Ireland was changed and the jury abolished in 1978 because it was felt, that it was inapt to cope with terrorism; see Safferling, Towards an International Criminal Procedure (2003), 214.Google Scholar

35 This I say in analogy to Blackstones' title for the English jury-courts, see Lidstone in Andrews (ed), Human Rights in Criminal Procedure: A Comparative Study (1982), 5.Google Scholar