Judgment in the “NSU case” relating to three further accused final and binding

Year of issue 2021
Date of issue 12.08.2021

Decisions of 12 August 2021 (3 StR 441/20)

The Third Criminal Panel of the Federal Court of Justice by way of decision dismissed the appeals on points of law (Revisionen) filed by the accused Beate Z., the accused Ralf W. and the accused Holger G. in which they objected to their conviction by Munich Higher Regional Court, and in the accused Beate Z.’s case also minimally modified the verdict against her.

Course of proceedings thus far

By judgment of 11 July 2018, Munich Higher Regional Court imposed an aggregate sentence of imprisonment for life on the accused Beate Z. on multiple counts of (attempted) murder under specific aggravating circumstances (Mord), one count of (attempted) especially aggravated robbery, one count of especially aggravated extortion with use of force or threat of force, membership of a terrorist organisation, as well as numerous other crimes committed in coincidence with these criminal offences; it also determined the particular severity of her guilt. The Higher Regional Court found the accused Ralf W. guilty of aiding multiple counts of murder under specific aggravating circumstances and sentenced him to 10 years’ imprisonment. It imposed an aggregate sentence of three years’ imprisonment on the accused Holger G. on multiple counts of supporting a terrorist organisation. The three accused each filed an appeal on points of law in which they complained of a substantive law violation; the accused Beate Z. and the accused Ralf W. also lodged a complaint against the first-instance court proceedings.

The facts

According to the findings of Munich Higher Regional Court, the accused Beate Z. shared a racist, antisemitic and subversive ideology with the now deceased Uwe Böhnhardt and Uwe Mundlos. In early 1998 the three of them, who formed a close personal relationship, resolved to flee so as to evade the measures initiated against them by the investigating authorities. They almost entirely broke off contact with their respective friends and families, with the exception of only a few like-minded confidants, including the accused Ralf W. and the accused Holger G.

1. After going underground, the accused Beate Z., Uwe Böhnhardt and Uwe Mundlos agreed, based on their shared political/ideological opinions, to kill multiple randomly selected individuals on account of their southern, above all Turkish, origin or their status as representatives of the state. Their intent was that the destabilising effect of attempting these people’s lives was to bring about a change in Germany’s governmental and social system in line with their national socialist/racist ideals. In order to significantly increase this effect they planned to initially allow the general public to recognise the serial nature of the offences and only subsequently to publish a still to be jointly produced document in which the group they had formed – the National Socialist Underground (“NSU”) – would retrospectively claim responsibility. Moreover, they agreed that, to secure their livelihood, they would rob local savings banks, post offices and supermarkets; by this means they were to finance the time-consuming preparation and execution of their murderous attacks.

To those ends the accused Beate Z., Uwe Böhnhardt and Uwe Mundlos resolved to live together for an extended period under cover of false identities in that they, in particular the accused Beate Z., established and communicated to the outside world a conventional, seemingly unsuspicious cover story. Whilst, according to their plans, Uwe Böhnhardt and Uwe Mundlos were to commit the criminal offences, the accused Beate Z. was above all responsible for providing a cover for their group (e.g. by obtaining false identity papers), handling their financial affairs and, if necessary, ensuring that the “NSU”, whose three members were to remain anonymous, would, as planned, claim responsibility for the offences.

In accordance with their group’s raison d’être, Uwe Böhnhardt and Uwe Mundlos committed 12 ideologically motivated murderous attacks in the period between September 2000 and April 2007. They used the same Ceska pistol fitted with a silencer to perfidiously kill nine men of Turkish and Greek origin in Nuremberg, Hamburg, Munich, Rostock, Dortmund and Kassel who either owned or worked as assistants in the shops targeted. In Heilbronn they used two other pistols to shoot from behind two police officers sitting in their patrol car; the female police officer died and her male colleague was seriously injured. They carried out two bomb attacks in Cologne, one on a grocery store and one out on the street which targeted people of Iranian, but mostly people of Turkish origin. No one was killed in these attacks, although some of the numerous victims sustained serious injuries. Between December 1998 and November 2011 Uwe Böhnhardt and Uwe Mundlos carried out 15 armed robberies against savings banks, post offices and a supermarket in Chemnitz, Zwickau, Stralsund, Arnstadt and Eisenach. In two cases their plans included the use of a handgun with the intent to kill.

The accused Beate Z. was, in particular, involved in planning each individual murder plot and armed robbery. Together with Uwe Böhnhardt and Uwe Mundlos she first analysed the results of their spying out of potential targets. In each case, the decision to commit a particular offence was taken jointly by all three. More specifically, the three of them agreed on the place and time of commission of the offences and their victims. Whilst each offence was being committed, the accused Beate Z., as previously agreed, remained in or near the accommodation they shared, which was used as the group’s headquarters, so as to be able to provide a cover story for her accomplices’ absence occasioned by the offence. If third parties made enquiries, she was to provide innocent explanations and to respond quickly and judiciously to events which might call into question the impression the three of them gave of living a conventional life. Once the first video claiming responsibility had been recorded in March 2001, the accused Beate Z. was, in addition, to send out the most up-to-date version of the video in the event that Uwe Böhnhardt and Uwe Mundlos were unable to flee and died and to destroy any evidence in the place they were living. The acts she agreed to perform served to ensure both that those committing the offences had a safe place of refuge and the success of their group’s raison d’être.

When, following the last armed robbery, Uwe Böhnhardt and Uwe Mundlos were discovered by the police as they were fleeing and they were at risk of being apprehended, they evaded arrest by committing suicide. When the accused Beate Z. learned of their death on the radio, she, as planned, used petrol to set fire to the place they were living at the time so as to destroy any evidence which could lead to conclusions being drawn about their group and its supporters. She then fled and posted numerous copies of the third video claiming responsibility which, as per their plan, were ready and waiting. Three people whose death the accused Beate Z. had accepted when she laid the fire were unharmed.

2. In spring 2000, the accused Ralf W. – together with the co-accused Carsten S., who did not file an appeal on points of law – obtained the Ceska pistol for Uwe Böhnhardt and Uwe Mundlos at their request; the latter used the weapon to shoot and kill the nine men of Turkish and Greek origin. The accused Ralf W. anticipated that Uwe Böhnhardt and Uwe Mundlos would commit the murders based on the racist or xenophobic motives he shared with them.

3. In the period between February 2004 and the first half of 2011, the accused Holger G. repeatedly obtained documents for the “NSU” organisation which were used to conceal the true identity of its members: a replacement driver’s licence and a passport issued in the accused Holger G.’s name which, on account of the similarity between him and Uwe Böhnhardt, was to be used by the latter, and a health insurance card issued in a third person’s name which was to be used by the accused Beate Z. Uwe Böhnhardt used these papers on numerous occasions to hire vehicles which Uwe Mundlos and the accused Holger G. used in multiple instances to drive to the place where their murder plots or armed robberies were carried out. The accused Beate Z. used the health insurance card to receive dental treatment under a false identity. The accused Holger G. was aware that the organisation might commit crimes causing death on account of its members’ national socialist/racist ideology, and he accepted this fact.

The Federal Court of Justice’s rulings

1. In its decision regarding the substantive objection raised by the accused Beate Z., the Third Criminal Panel of the Federal Court of Justice, which according to the allocation of court business has jurisdiction for crimes against the state committed across the Federal Republic of Germany, minimally modified the verdict issued against her, but the objections she raised concerning the course of the proceedings were overall unsuccessful. Although the modified verdict led to one individual penalty being dropped, the aggregate sentence of imprisonment for life and the determination of the particular severity of her guilt remain unaffected thereby. For the rest, the contested judgment stood up to a factual-legal review. The order dismissing the further appeal on points of law pursuant to section 349 (2) of the Code of Criminal Procedure (Strafprozessordnung) thus above all relates to the evaluation of evidence as presented in the contested judgment, namely regarding the accused Beate Z.’s involvement in the planning of the offences committed by Uwe Böhnhardt and Uwe Mundlos and with the legal assessment that the accused’s involvement was to be regarded as that of “joint offender”. The Third Criminal Panel’s legal assessment of these issues is as follows:

a) There is no indication that any legal errors occurred in the course of the evaluation of evidence. To the extent that the Higher Regional Court established that the accused Beate Z. had been involved in planning each individual criminal offence, the judicial formation of conviction has a viable basis in fact, that is the results of the taking of evidence, and is based on feasible conclusions which are rationally transparent and highly plausible.

b) The overall evaluative assessment of all the facts and circumstances established by the Higher Regional Court which is to be carried out in accordance with the established case law of the Federal Court of Justice leads to the conclusion that the accused Beate Z. committed the murderous attacks and armed robberies jointly with Uwe Böhnhardt and Uwe Mundlos within the meaning of section 25 (2) of the Criminal Code (Strafgesetzbuch). The accused Beate Z. exhibited a level both of control over the offences committed (Tatherrschaft) and of an own interest in their commission (Tatinteresse) sufficient therefor.

aa) As regards the criterion of “control over the offences committed”, consideration is to be given to the fact that although the accused Beate Z.’s contribution did not establish such control during the stage at which the criminal offences were committed, she did already have a decisive influence on the planning of the offences, on the joint decision to commit the offences and on her two accomplices’ further intention to actually commit the offences. Furthermore, by promising to perform the agreed acts (providing a cover story, destroying evidence, claiming responsibility for the offences) she had a decisive influence on the offences being realised and thus also – over and above her involvement in planning the offences – made a significant, objective contribution thereto. Without her promised actions it would not have been possible to achieve the goals pursued in committing the offences as per the group’s raison d’être.

bb) As regards the criterion of “an own interest in the commission of the offences”, it is of decisive importance that the accused Beate Z.’s interest was no less than that of Uwe Böhnhardt and Uwe Mundlos. Her strong interest in the commission and success of the offences is no less relevant when it comes to evaluating her complicity as that of a joint offender merely because it accorded with the overarching shared objectives of all the members of the “NSU”. Although membership of a terrorist organisation in and of itself does not lead to a particular offence being ascribed to an individual member, a philosophical/ideological, religious or political motive, for example, for committing an offence can determine the character of a group of persons which has such a motive and be of considerable relevance when it comes to classifying a person’s complicity as that of “offender” rather than that of “participant”.

2. In a further decision the Third Criminal Panel of the Federal Court of Justice dismissed the accused Ralf W.’s and the accused Holger G.’s appeals on points of law. As regards the submissions made in the Public Prosecutor General at the Federal Court of Justice’s applications – which were correct and to which the two applicants submitted no written response (section 349 (3) of the Code of Criminal Procedure) – the Panel dispensed with the normal procedure in such cases and did not provide grounds for its decision.

Lower court

Munich Higher Regional Court (6 St 3/12) – judgment of 11 July 2018

Relevant legal provisions:

Section 349 - Decision without main hearing
(1) …
(2) Upon the public prosecution office’s application, for which grounds must be given, the court hearing the appeal on law may also decide in an order if it unanimously deems the appeal on law to be manifestly ill-founded.
(3) The public prosecution office shall inform the appellant of the application pursuant to subsection (2) and of the grounds therefor. The appellant may submit a written response to the court hearing the appeal on law within two weeks.
…

Section 25 StGB - Commission of offence
(1) Whoever commits an offence themselves or through another incurs a penalty as an offender.
(2) If several persons commit an offence jointly, each person incurs a penalty as an offender (joint offenders).

Karlsruhe, 19 August 2021