Judgment in proceedings concerning the murder of Dr Walter Lübcke final

Year of issue 2022
Date of issue 25.08.2022

Judgment of 25 August 2022 (3 StR 359/21)

The Federal Court of Justice dismissed all the appeals on points of law filed against the judgment handed down by Frankfurt am Main Higher Regional Court in proceedings concerning the murder of Dr Walter Lübcke, former Regional Commissioner of Kassel, as well as to the assault on an asylum seeker.

Previous proceedings

In its judgment of 28 January 2021, Frankfurt am Main Higher Regional Court sentenced the accused Stephan E. to imprisonment for life for the murder under aggravating circumstances (Mord) of Dr Walter Lübcke, it established the particular severity of his guilt and reserved the right to order preventive detention. The court acquitted him on a further count of attempted murder under aggravating circumstances and dangerous bodily harm to an asylum seeker. The court sentenced the accused Markus H. to imprisonment for one year and six months for the intentional unlawful possession of an essential part of a fully automatic firearm capable of firing fixed ammunition, and suspended the sentence on probation. It acquitted him of aiding the murder under aggravating circumstances of Dr Lübcke.

The accused, the Federal Public Prosecutor General and the private accessory prosecutors (Nebenkläger) each filed an appeal on points law (Revision) against this judgment. Whilst the accused challenged their conviction, the Federal Public Prosecutor General complained of the accuseds’ partial acquittal and the fact that the preventive detention order against the accused Stephan E. was only reserved. Dr Lübcke’s wife and two sons, in their capacity as private accessory prosecutors, contested the accused Markus H.’s partial acquittal. The party injured in the further assault filed an appeal on points of law against the accused Stephan E.’s partial acquittal.

Facts and circumstances

According to the findings of the Higher Regional Court in relation to the accused Stephan E.’s conviction, he shot and killed Dr Walter Lübcke with a revolver at around 11:30 pm on 1 June 2019. He acted out of xenophobic motives and exploited his victim’s guilelessness and resulting defencelessness by creeping up on Dr Lübcke – who believed himself to be in apparent safety and was not expecting to be attacked – and shooting him once in the head at close range. The accused’s intention was to kill his victim on account of his political convictions and his holding the position of Regional Commissioner and to punish him, as it were, for the stance he took on refugee policy.

The Higher Regional Court was not, by contrast, convinced that the accused Markus H. had aided the accused Stephan E. in killing Dr Lübcke and/or that he was involved in perpetrating the act.

As regards the accused Stephan E.’s partial acquittal, the Higher Regional Court found that the private accessory prosecutor concerned had suffered significant injury on 6 January 2016 at the hands of a male person who stabbed him in the back with a knife. However, it was not able to conclude that it was the accused Stephan E. who committed this act.

As regards the accused Markus H.’s conviction, the Higher Regional Court found that, from at the latest 2014 until 2019, he had kept an automatic pistol with a fully functional grip stock as a decorative weapon.

The Federal Court of Justice’s ruling

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, dismissed all of the appeals. According to the Panel, the substantive review of the written judgment – which was necessary on account of the errors in substantive law of which all the appellants complained – did not reveal any legal errors to the accuseds’ disadvantage in respect of their conviction nor any legal errors which counted in the accuseds’ favour in respect of their acquittal. The procedural complaints were likewise unsuccessful.

As regards the accused Stephan E.’s conviction, the evidence gathered substantiates the Higher Regional Court’s findings in relation to Dr Lübcke’s killing and supports the verdict of guilty for murder under aggravating circumstances. Nor can any objections be raised to the decisions regarding legal consequences. The Federal Court of Justice ruled, amongst other things, that it was legally permissible for the accused’s racist and xenophobic motives to be taken into account separately over and above his purely political motives when examining the particular severity of his guilt.

To the extent that the accused Markus H. was acquitted in these interrelated proceedings, the review of facts on which the judgment was based likewise did not reveal any legal errors. This in particular applies to the evaluation of evidence conducted by the Higher Regional Court, on the basis of which it was not able to establish that Markus H. was present at the scene of the crime or that he had provided any physical or psychological assistance in the run-up to the offence. The private accessory prosecutors’ appeal on points of law did not indicate any procedural errors; in particular, the Higher Regional Court did not fail to take any legally necessary evidence.

As regards the accused’s Stephan E.’s acquittal of the charge of attempted murder under aggravating circumstances and causing dangerous bodily harm to the asylum seeker, there can likewise be no objections to the Higher Regional Court’s evaluation of the evidence. The private accessory prosecution’s procedural complaint does not indicate that the Higher Regional Court did not take sufficient evidence.

Finally, the review of the accused Markus H.’s conviction for possession of a firearm occasioned by the appeals revealed neither a substantive-law nor a procedural-law error.

The Higher Regional Court’s judgment is therefore final.

Lower court

Frankfurt am Main Higher Regional Court (5 – 2 StE 1/20-6a – 3/20): judgment of 28 January 2021

Relevant legal provisions:

Section 46 of the German Criminal Code (Strafgesetzbuch, StGB) - General principles

[…]
(3) No consideration may be given to circumstances which are already statutory elements of the offence.

Section 261 of the German Code of Criminal Procedure (Strafprozeßordnung, StPO) - Principle of judge’s free evaluation of evidence

The court shall decide on the result of the taking of evidence at its discretion and conviction based on the entire content of the hearing.

Karlsruhe, 25 August 2022

to the top