The New York Times has gotten rather scoldy about Germany lately. Judging by New York Times coverage, Germany is not doing enough to combat racism, anti-semitism, and right-wing violence. Nor has it fully confronted its Nazi past.
I’m not sure what the reason is for this critical undertone. Generally, American liberals find much to praise about Germany: free college tuition, universal healthcare, a deep aversion to war, generous social-welfare benefits. My theory is that the Times’ German aversion may something to do with the Times’ gradual conversion to full-scale wokeness. The Times now identifies with identity politics and American-style ethnic particularism. To a fully-woke American, Germany must seem backward indeed: after all, one of the highest-circulation German dailies just published a frontal attack on identity politics (g), something that no longer appears in major American newspapers.
Anyhow, enough speculation. The main point of this post is this article on Niels Högel, the German nurse who is accused of killing up to 300 hospital patients over a period of five years. The article singles out a certain aspect of German culture for criticism:
The number of killings and the amount of time it took for suspicions surrounding his actions to come to light have raised uncomfortable questions for Germany, including whether the same deference to hierarchy and predilection for procedure that once facilitated Nazi-era crimes allowed Mr. Högel to kill uninterrupted for so long.
According to Frank Lauxtermann, the only former colleague who testified openly about working alongside Mr. Högel, “A culture of looking away and keeping your head down” ultimately shielded the suspect….
She said Mr. Högel’s colleagues in Oldenburg had talked about him, but did not go to their superiors or lodge a complaint out of fear of being reprimanded or because they didn’t see it as their business in a country where citizens closely guard their privacy.
When another nurse in Delmenhorst told her superior she was suspicious of Mr. Högel, no action was taken and she never followed up….
“The course of events that took place on June 24 are symbolic of the failure of those responsible for their completely erroneous assessment of actual facts and the tragic results that ensued for the patients,” Mr. Schmidt said, announcing the results of his investigation in 2017.
That investigation came about only after years of pressure by family members, and led to the current trial.
Two former prosecutors from Oldenburg were investigated for failing to sufficiently investigate Mr. Högel in 2005, but neither faced charges. One is now a judge in Oldenburg.
I think the Times, for all its gimlet-eyed coverage of matters German, has a point here: There is a cluster of German cultural traits — many of them admirable — which often works against institutional accountability.
First is the German respect for privacy. You don’t pry into your co-workers’ personal affairs. You also don’t pry into their job performance, unless it directly affects you, and perhaps not even then. It’s the bosses’ job to evaluate job performance, not the co-worker’s. Complaining to the bosses about a co-worker’s performance comes dangerously close to informing on them, which immediately raises loud historical alarm bells. In both Nazi Germany and in East Germany, anonymous denunciations were often used to derail competitors’ careers. These historical memories metastasized into the corners of the German national character: complaining legitimately about a colleague’s serious mistakes on the job is, of course, not as sinister or serious as denouncing them to the secret police. But it’s the same overall genre of activity, the same kind of behavior. And thus it has Sinister Historical Overtones, and should be avoided.
Another factor is institutional. Germany’s public healthcare system is stretched to the limit; under-funding and under-staffing are the norm. A December 2018 EU report (pdf) concluded:
Understaffing in hospitals and residential homes is widespread, and the number of graduates completing vocational training falls far short of those leaving the job (due to retirement or dissatisfaction) and those which are additionally needed (due to the rising number of people in need of care). At the same time, working conditions for carers are poor, particularly in LTC: wages are low, the work is demanding and working hours are unattractive.
Accountability for medical malpractice is still limited in Germany. In the United States, a hospital can be sued for millions for negligently hiring or negligently retaining a worker who causes a serious accident. If you prove that the hospital knew, or should have known, about an incompetent employee, the hospital must pay. The German system creates less accountability, principally because (1) hospitals aren’t always liable for their employees’ on-duty mistakes; (2) malpractice judgments are notoriously hard to win; and (3) judgments are generally for modest amounts. German healthcare is still very good on average, but there are growing gaps in quality which Högel was obviously able to exploit.
And finally, there’s the “that’s not in my job description” effect. This is not solely a German phenomenon, but it’s very strong here. My job is to take care of my patients, not to make sure everyone else is. I have my tasks and my duty area, and I’m going to do my tasks within my duty area, then go home and forget about work. North Americans, in particular, notice this strong silo mentality. In a restaurant or a start-up, you do whatever is required to keep the customer happy and the business afloat. In a bureaucratic institution such as a hospital or university, the average Joe or Jane will normally do their jobs reasonably well, but feel no need to show any extra initiative.
Here’s a story. At the university where I used to work, a dead pigeon lay in front of one of the buildings. A friend of mine, also from the New World speculated on how long it would lay there. Hundreds of people walked past it every day, noticing it with disgust. But nobody did anything. Professors would never stoop to touch a dead thing. Nor would secretaries. Students reasoned that the university paid for cleaning crews, and it was their job to pick up the dead bird. But the cleaning crews were paid only to clean inside the buildings. Day after day, the cleaners wheeled their carts right by the rotting pigeon, ignoring it. The pigeon, you see, lay on an exterior brick walkway, and nobody had been clearly assigned the task of keeping that specific walkway clean.
The pigeon lay there for over ten days.
Not for nothing did Georg Christoph Lichtenberg once ask (g): “Tell me, is there any country but Germany in which people are more likely to learn to wrinkle their noses in disgust than learn to clean?”
I have another blog in which I mainly talk about German law. I wrote this post for that blog, but I think the case is so interesting it deserves a spot here, too.
The public radio station for Berlin-Brandenburg recently released an 8-part podcast — “Christin and Her Murderers” exploring a German murder case. The podcast yields interesting insights into German criminal trials, mainly because the authors — Martina Reuter und Uta Eisenhardt — got unusual access to the main players in the case: Judges, detectives, lawyers, and even three of the defendants agreed to interviews. This may not raise any eyebrows for an American or a Brit, but this level of access is very unusual for Germany. Germans tend to be very protective of their private sphere, and German law helps them protect it.
First I’ll provide a rundown of the murder case itself, then look at the investigation and trial.
I. The Murder of Christin Rexin
The facts are mundane in some respects, but startling in others. We start with Christin (pronounced like “Christine” in English) Rexin. She was a 21-year-old woman from Lübars, a quaint village near Berlin. She loved working with horses, and was doing an apprenticeship on a nearby horse farm, the Goldnebelhof (Golden Fog Farm!). One day, a mother and son showed up to express interest in buying the place. The mother, Cornelia, worked at a bank. Her son Robin was a competitive rider on the German equestrian circuit, and owned a number of valuable horses. Robin and his mother held discussions with the farm’s owners, a divorced couple, and arranged to buy the farm, with tentative financing from a bank.
Robin and his mother Cornelia thus became Christin’s employers. The financing for the purchase fell through after a few months, but Christin fell in love with Robin, the young, self-assured businessman who loved horses as much as she did. Soon they were a couple, although the stories Robin told about his background seemed a bit inconsistent, and he was something of a braggart. His mother had meanwhile stopped paying Christin’s salary and social-insurance contributions. It became clear that Robin and Cornelia were having financial problems. They were actively trying to sell some of the valuable horses they owned. In November 2011, Christin agreed to take out a €250,000 life insurance policy in her own name with Robin as the beneficiary. Robin’s mother Cornelia would pay the premiums. They claimed their financial advisor had recommended this step as a routine precaution. Christin eventually became engaged to Robin, and the family group began searching for another horse farm to rent or buy.
And then, on April 4, 2012, something quite bizarre happened: While Cornelia and Christin were spending time in Cornelia’s kitchen, Cornelia stabbed Christin in the back. Christin defended herself. The knife wound was severe, but not life-threatening. Cornelia claimed she had stabbed Christin during a “blackout”. Needless to say, the stabbing put something of a damper on the marriage plans. Nevertheless, Christin still agreed to see Robin, although not at his house or with his mother. Meanwhile, Christin pressed charges against Cornelia, but the police — incredibly — suspended prosecution, believing her convenient story of a blackout.
Meanwhile, Christin, her family, and friends kept discovering inconsistencies in just about everything Robin said: his supposedly deceased ex-wife kept posting on Facebook, he claimed to have participated in riding tournaments where nobody remembered seeing them, etc. He even claimed to have served in a secret special forces regiment in the German Bundeswehr in Afghanistan whose mission was to “kill and destroy” (g). Robin appears to have had some charm and self-confidence, but was also clearly a pathological liar. Nevertheless, Christin refused to break off all contact with him. Meanwhile, his mother kept taking out more and more life insurance policies on Christin, eventually adding up to more than €2 million Euro. It was unclear who signed these extra policies in Christin’s name.
Through the equestrian scene, Robin befriended Tanja, a young, horse-loving butcher with a troubled past growing up in care homes. After laying on a bit of charm, he came right out and said he wanted to help her kill someone to collect insurance money. In another plot twist too ludicrous for fiction, she agreed on the spot. She later claimed she had been manipulated and controlled by Robin, but didn’t deny he had promised €50,000 to her and whoever else she was able to recruit. For the second attempt on Christin’s life, Robin gave Tanja champagne laced with potassium chloride. Tanja was supposed to feign interest in buying one of Robin’s horses and, when the deal was concluded, offer her champagne to drink. After a few sips, however, Christin poured it out, claiming it tasted off. The second attempt to kill Christin thus failed.
For the third attempt to murder Christin, Robin and his mother pulled out all the stops. Robin, much to his later regret, texted Tanja that “the third time cannot be allowed to fail.” Robin asked Tanja if she knew someone who might be willing to pull off a hit. She said her brother Sven, a petty criminal who had spent time in prison, probably would. Sven in turn recruited Steven, who also had a criminal record, and a plethora of “social problems” so vast he lived in an assisted-living facility. Together, they lured Christin to a parking lot late at night in her hometown of Lübars, and one of the crew (it’s still not certain which one) strangled her to death.
The case wasn’t difficult to solve, although investigators had a hard time proving exactly who had played which role. They immediately focused on Robin, and discovered that his mother had stabbed Christin some months beforehand. They quickly twigged to Tanja’s involvement, and through her Sven and Steven. All five were charged with murder or abetting murder (which carry the same punishment under German law).
II. The Investigation and Trial
The podcast explores the detectives’ tactics and the court proceedings in detail, something which is surprisingly rare in Germany — a country which is obsessed with (generally unrealistic) murder mysteries. When you’re arrested for a serious crime in Germany, you will be interrogated by the police. They are obliged to inform you that you are required only to identify yourself. You are not required to answer any further questions without the presence of a lawyer. Yet the rules are nowhere near as strict and arbitrary as they are in the UK or the USA. Interrogations do not need to be recorded, as in the UK; detectives prepare a written record based on memory. Nor do police need to recite a specific speech concerning a suspect’s rights and obtain a formal written waiver, as they usually do in the USA. German police can advise you that you’ll fare better in court if you cooperate, and invariably do so. They often try to establish a friendly and laid-back tone to the interrogation. Suspects are not handcuffed or restrained unless they seem to present a threat. German courts probe deeply into how cops get confessions, so third-degree tactics — lies, threats, manipulation, especially violence — are seen as counterproductive, and rarely used.
To build rapport, a detective might chat at length about common interests such as soccer or food or television. One detective who questioned Robin quizzed him about horses, because he was genuinely interested in horses, and Robin knew quite a bit about them. What could be more natural? Later, he told the reporters about Robin: “Oh sure, I knew he was lying in lots of what he said to me, but then again, he’s got a right to do that.” One key in the questioning of Tanja was the fact that one of the detectives smoked. He joined her outside the precinct for smoke breaks, and appealed subtly to her conscience, person-to-person.
The main purpose of interrogations is to obtain a confession. If that proves impossible, then detectives try to pin the suspect’s story down early, so that they can later point out inconsistencies if they arise. A caveat: As is the case anywhere, police tactics vary in Germany depending on the officer is and the suspect. All the suspects in this case were ethnic Germans, and many had no previous criminal record. Thus, they almost certainly received gentler treatment than, say, an immigrant with a long criminal record and limited German. In fact, this case seems to contain a specific example of what you might call “German privilege”. It’s difficult to imagine that the local authorities would have suspended prosecution in a serious stabbing case based merely on Cornelia’s uncorroborated claim that she had a “blackout” if the Cornelia had been a foreigner, rather than a well-spoken German lady who worked in a bank. But even with this caveat in mind, stories of brutal third-degree interrogations are rare in Germany. German police simply don’t have the win-at-all-costs mentality that often drives American police to bend or break the rules they feel restrict them. If a suspect strictly refuses to cooperate, they’ll just give up trying to get a statement, and hope other tactics will solve the case.
Nevertheless, German police do get suspects to talk about the crime, and often to confess, with surprising frequency. There are a few reasons for this. First, German law is quite lenient in international comparison. A suspect in a country which imposes 10 years in prison for crime X is going to be much more circumspect than one in a country where crime X is usually punished by 2 years with a suspended sentence. Second, German judges are often suspicious of confessions, and will explore the circumstances under which they were given. This is part of the “duty of investigation” (Pflicht zur Erforschung) which requires judges to independently establish all relevant facts of a case. Did the suspect confess to protect or appease a third party? Does her confession square with the known facts of the case? If not, why not? Even a full confession which squares with the facts will not prevent a later full examination of the facts of the case, during which the defense will be able to make its own arguments. Even if a case is settled by a plea bargain, the judge is still obliged by law (g) to carefully examine the circumstances of the confession, although some overburdened judges cut corners here.
Perhaps the most important reason for the high rate of confessions in German cases is that suspects know they will receive more favorable treatment from the judge in their case if they come forward. In the Christin R. case, Tanja, Robin, and Steven all decided to talk to the police. Tanja gave a full account of everything that happened, saying she wanted to “get the pictures out of her head”. Steven — who talked so quickly and with so much slang that detectives had trouble keeping up with him — corroborated much of what Tanja said, but claimed Robin, not he, had strangled Christin. Robin, for his part, provided a carefully curated and selective account, confirming facts which he knew could be verified, but denying any murder plot. He had also tried to carefully arrange an alibi for himself by visiting a gas station.
After a long investigation came the trial. It was held before a Schwurgericht, an untranslatable term which is officially rendered into English as a “criminal division with lay judges”. It originally meant court with twelve “sworn” jurors, but is now composed of three professional judges and two lay judges (Schöffen). It is reserved for the most serious offenses involving the death of a victim. It is still not allowed to record criminal trials in Germany, but the podcast’s authors were in the courtroom and provided a careful account. The trial opened, with the reading of the indictment. Directly after this, the court turns to the defendants and asks them to provide their personal information.
After they have done so, the court asks them if they want to make any comment on the case. At this point, an Anglo-Saxon criminal defense lawyer’s hair would catch fire. Speak informally, directly to the judges in the case, right there in open court? Clearly, we are in another procedural universe here, one with many fewer strict rules and formalities than in England or the UK. Of course, defendants aren’t obliged to make a statement at the beginning. German law respects the presumption of innocence and the right to silence. In this case, Tanja decided to make a full statement in open court at the beginning of the case. She explained her version of exactly how the crime occurred, and expressed remorse. She had been advised to do this by her lawyer, with an argument like this: “You already said all this to the detectives, so the judges are going to find out about it anyway. This way, you get out ahead, portraying yourself as the only member of the conspiracy willing to come right out and be honest from the beginning, come what may. This will help speed the trial and earn the judges’ respect.”
After the initial statements comes the wearisome task of establishing what happened. As noted, German courts have an independent duty to probe as deeply as possible into all the circumstances of a crime. The judges dominate the proceeding, directly questioning witnesses and commissioning expert testimony. There is no clear “prosecution” and “defense” case — each side merely intervenes occasionally to highlight facts it considers helpful to its side. Trials often last for months or even years — they’re not held day after day, but rather in a sporadic series of sessions. In the Christin R. case, there were numerous seemingly minor inconsistencies in the testimony and evidence — Tanja said the attacker was wearing a certain color jacket, but another witness said it was a different color. Fiber evidence was inconclusive. There was no DNA evidence. In an Anglo-Saxon courtroom, these minor weaknesses would become fodder for back-and-forth argument by the lawyers. But in German courtrooms, the judges are obliged to try to resolve these seemingly minor inconsistencies in mind-numbing detail.
Finally, after the relevant facts had been established, Robin and his mother Cornelia decided to testify. In German courtrooms, defendants are not obliged to testify under oath because, as any professor or lawyer will tell you, “they’re going to lie anyway, and have a right to do so.” As best they could, Robin and Cornelia tailored their account to match the facts — Robin’s damning Internet searches for poison were meant to protect his horses from eating the wrong weeds; Cornelia had taken out all those life insurance policies merely as a precaution; Robin only wanted to sell Tanja a horse and had no idea of “her” plan to murder Christin. To call their versions unconvincing was an understatement.
Eventually, after all the suspects were heard, and the judges retired to deliberate. Eventually, they returned their verdict (g). All five of the defendants — Tanja, Robin, his mother Cornelia, Tanja’s sister Sven, and his friend Steven (who probably actually committed the murder) were found guilty. Robin and his mother were sentenced to life in prison with a special finding of especially severe culpability (besondere Schwere der Schuld), which means they will have to stay around 25 years behind bars. Sven and Steven were sentenced to life without a special finding, which means they’ll become eligible for release in around 15 years.
As for Tanja, the judges made use of §46a of the German Criminal Code, which allows sentence reduction if the offender “voluntarily disclos[es] his (sic!) knowledge” of the offense. She received not a life sentence, but a term of fourteen and one-half years. With good behavior, she might well be released in half that time. Some of the defendants appealed their conviction, but on 9 March 2016, the Supreme Court of Justice (g) dismissed the appeals as “evidently unfounded“. At this point, the verdicts and sentences became formally legally binding.
As I mentioned above, Cornelia, Robin, and Steven all agreed to be interviewed from prison. This is quite rare in Germany, both because prisoners generally want to avoid calling attention to themselves, and because prison authorities often deny access to prisoners because it may “hinder resocialization”. Robin and Cornelia apparently wanted to increase their chances of early release by making a show of coming to terms with their sentence. However — at least from the edited excerpts presented in the podcast — they still seem to deny the charges against them.
Interestingly, the authors of the podcast, after all their research, believe that important aspects of the case still remained unsolved, and attribute this to gaps in the investigation and the judges’ examination during trial (g). I personally don’t see this, from an American or British perspective, the evidence is much more than adequate for conviction. German law punishes abetting the crime identically to committing it, so the various levels of involvement are not particularly important, as long as there is evidence the abettors had a common purpose and plan. But the German criminal justice system is oriented toward finding out the entire truth, as far as possible.
German environment activists have been protesting the planned destruction of a part of the Hambacher Forest to allow the expansion of a coal mine. There have been many arrests, injuries, and even a death (a journalist fell from one of the treehouses activists have built).
One of the activists was tried and convicted of attempting to kick a police officer. The first remarkable thing about this case is that, at the time of the assault, her hands and feet were bound (g). Officers gave conflicting accounts of how exactly she planned to kick one of them in this position. Another odd thing is that the judge gave her an extremely harsh sentence by German standards, 9 months’ imprisonment without probation. She was just released from prison.
But the most curious thing about the case, at least to me, is that the court never found out who she is. She had no identification with her when she was arrested, and refused to cooperate with police and court attempts to identify her. She’s still known only as Eule (Owl). I know of no other criminal case ever in which the defendant was arrested, put on trial and prosecuted, without their identity ever being confirmed.
This shows you, on the one hand, how powerful Germany’s obsession with privacy can be. If you’ve never been arrested, your fingerprints will not be on file anywhere. Even cops can’t force you to reveal your identity, or take other steps to investigate and determine who you are. So if you stubbornly refuse to cooperate, there’s no way even the combined force of the German state can find out who you are.
On the other hand, this seems like yet another rule of German criminal law which is going to have to be tightened. This case involved an arrest at a protest, which isn’t a major threat to public safety, in my view. But what if word gets around that you can hide your identity from the state forever? Do we want violent criminals to be able to be convicted, and even serve their sentence, and then be released in to the community without anyone knowing who they are?
I’ve argued here before that German criminal laws were written in an era in which Germany was a relatively homogeneous, tight-knit society with a broadly-shared sense of right and wrong, high social trust, and low crime levels. Believe it or not, German criminal law is based on the idea that accused criminals will cooperate with the system, and in return the system will treat them more like wayward family members than dangers to society. Confess, my son, and we will help you get back on the right track.
This system was never designed to foil active attempts to undermine it by clever, determined criminals — especially foreigners who don’t share, and may not even be aware of, the presumptions and ethical world-view of the average German. If Germany wants to achieve meaningful sanctions and deterrence of these folks, it’s going to have to tighten its laws.
One of the strangest cases in modern German crime has just ended in a life sentence (g) for the defendant, Klaus O. Klaus was a metalworker in a medium-sized firm near Bielefeld. He’d worked there for 38 years.
A few years ago, people at the firm started falling seriously ill for unknown reasons. They had been poisoned by substances such as lead acetate. One was left in a coma, others with permanent kidney damage requiring dialysis.
One of Klaus’ co-worker noticed a suspicious white substance on his sandwich. He advised the firm management, which installed a security camera. The camera caught Klaus O. poisoning his colleagues’ lunches. The authorities suspect he poisoned up to 21 people.
Klaus never made a statement to the authorities, and never revealed his motive. He seemed to have chosen his victims more or less at random, and there was no evidence he had grudges against them. A psychiatrist appointed by the court to evaluate him said his attitude was like a scientist conducting “experiments”. The Bielefeld Regional Court sentenced Klaus to life in prison for attempted murder and a series of other crimes. The Court also made a special finding that he was ‘especially culpable’.
To understand why this is important, we need to go in to German sentencing law. In Germany, ‘life’ in prison is a specialized legal term. In 1977, the Federal Constitutional Court of Germany handed down the Life Imprisonmentdecision (g). The Court held that a life sentence was constitutional under German law, but that, to respect human dignity, a prisoner sentenced to life must always retain some chance of being released at some time. So absolute life without parole is unconstitutional.
The German parliament eventually created a new system of punishment to implement the Court’s decision. The law now provides that someone sentenced to life in prison must be considered for parole after serving 15 years of their sentence, and parole should ordinarily be granted if, after serving that time, there is a “favorable prognosis” for the defendant to be re-integrated into society. However, this rule can be superseded if the trial court finds that the defendant’s actions showed a “special” or “unusual” level of culpability (besondere Schwere der Schuld, literally: An unusually heavy load of guilt). According to a recent decision (g) of the Federal Supreme court of Justice, a finding of special culpability “requires that the overall context of the crime, including the personality of the offender, deviates so far from the court’s experience of ordinary murder cases that the release of the prisoner on parole after the minimum of fifteen years appears inappropriate, even if the defendant has received a positive prognosis.”
The Bielefeld court went even further, though, and entered findings which can later be used to impose post-sentence protective custody (Sicherungsverwahrung). This allows offenders who have served their official prison sentence to be kept in secured ‘treatment’ facilities if a court finds that they have “a tendency to commit serious crimes which pose a threat to the community.” Formerly, German courts could order this sort of preventive detention when an offender was about to be released from prison, even if nobody had raised the possibility of preventive detention when the offender was initially sentenced for his crime. The law allowing “retroactive” preventive detention was then successfully challenged in the European Court of Human Rights, triggering a series of German court decisions and legal reforms, as the Strasbourg Observer blog notes:
Since 2009, the European Court had to examine in several cases the compatibility of German legislation on detention of serious criminal offenders for preventive purposes. In its judgment of M. v. Germany, the Strasbourg Court characterized it as a “penalty”, applying to it the guarantees of Articles 5 and 7 of the European Convention. The preventive detention must be regarded as a “penalty”, on the one hand because its aim is not only preventive but also punitive and, on the other, because of the gravity of the measure provided by the German Criminal Code. Following this judgment, and called by the Federal Constitutional Court to completely recast the system (see BVerfG, 4 May 2011, 2 BvR 2365/09, BVerfGE 128, 326), a new law has been adopted on 5 December 2012 (Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung). It is in this context that in 2016, the Court rendered the Bergmann judgment, which constitutes a turning point in its position. This was the first case in which the Court examined the compatibility of the Convention with the new German legal framework on preventive detention. The Court stated that, since the measure is ordered for therapeutic purposes in respect of an applicant suffering from a mental illness, the nature and purpose of the measure change substantially, to the point of no longer as amounting to a “penalty” (para. 182). Preventive detention is therefore exempt from the guarantees of Articles 5 (1) and 7 of the Convention.
To sum up the current state of the law in plain(er) English, German courts can still order offenders detained after they have served their official prison sentence, as long as (1) the court which handed down the initial sentence enters a finding that preventive detention may later be necessary; and (2) preventive detention after sentence is done for therapeutic purposes instead of punishment and conditions in detention are sufficiently “distanced” from ordinary prison confinement (Abstandsgebot).
Germany’s laws on preventive detention are controversial, as the judicial back-and-forth described above makes clear. However, the question is: what are the alternatives for protecting society from especially dangerous people? The most lenient approach is to simply release them after a fixed term, and accept the fact that some offenders (not that many) will commit fresh crimes. The American approach is to hand down either death sentences or life-without-parole sentences which afford prisoners no hope of release at all, no matter how much they change while incarcerated. The German system represents a middle-ground: Monitor how the offender does in prison, and then decide, shortly before release, whether to confine him afterward for “therapeutic” purposes.
In any case, the Bielefeld sandwich poisoner received the highest penalty allowed by German law: After serving 15 years of his sentence, he will not be immediately parole-eligible. The court will assign an additional period of parole ineligibility. And even after he serves out the additional period of parole-ineligibility, he may be kept in preventive detention. Given his age, then, Klaus will probably spend the rest of his life behind bars.
Occasionally, when I’m in the neighborhood, I like to drop in and watch a German trial. German court proceedings, especially criminal proceedings, are governed by the “openness principle” (Öffentlichkeitsgrundsatz), which means that anyone can visit them.
Today it was the Amtsgericht, which is where most criminal trials in Germany are held. You have to pass through security screening, but it’s fairly routine. The court building, quite new and handsome, is usually mostly empty; most of the actual business is done inside courtrooms and offices. People arrive and leave to participate in trials without hanging around.
This trip to the courthouse was pretty interesting, because I got to see a complete trial from beginning to end, and it only lasted 20 minutes. The defendant was a Kurdish guy in his late 20s, who arrived with a few family members. The trial began with the prosecutor reading the indictment, which was “resisting a law officer” (Widerstand gegen Vollstreckungsbeamte). The prosecutor was a young lawyer who seemed pretty detached — this was just one of several cases he was going to handle, and, seemingly, not a very important one. After the indictment was read, the judge — also a young male lawyer — turned to the defendant and asked for some basic background information, which the guy gave. (Judges and prosecutors in district courts tend to be young; it’s the first step on the judicial career ladder, which starts directly after law school).
The judge then asked if he had anything to say, while reminding him he wasn’t obliged to say anything. The young man gave a short statement: the charges were totally unfounded; he never kicked or punched any law enforcement officer, and the video evidence would prove it. He admitted he was “aufgebracht” (upset), but that’s because the police had ordered the demonstration to be dispersed “because of the flag” and then blocked in some of the demonstrators with a cordon.
Nobody mentioned it at trial, but this was a pro-Kurdish demonstration (g) in Düsseldorf which took place on 4 November 2017 which devolved into chaos and resulted in numerous injuries. An administrative court had authorized the demonstration, but forbidden demonstrators to display images of Abdullah Öcalan, the leader of the militant Kurdish nationalist PKK party, who is currently imprisoned in Turkey. The PKK has been banned in Germany since the 1990s, and this ban has been interpreted to include images of Öcalan. About 6,000 demonstrators showed up, and waved flags with Öcalan’s image. The police then ordered the demonstration dispersed, and things got ugly.
At the trial, though, the only question was whether the defendant had actually resisted a law officer. The judge was supposed to call a witness, presumably a cop, but the witness was sick. After a brief conversation, the judge decided to go ahead anyway. He whipped out a video disc containing a film of the encounter, and played it at the witness stand, so the defendant and the prosecutors could both see (but us visitors could not). Eventually, everyone agreed that the video only showed the defendant shoving a private security guard, not a law enforcement officer, and that even this didn’t show anything damning, since the situation was chaotic, and the crowd was milling about, shoving and pushing against the police cordon.
The judge asked the prosecutor for his plea, and the prosecutor stood up and basically said that in light of the video evidence, he had no choice but to argue for the defendant’s acquittal. The judge agreed, and asked us all to rise, then entered the official verdict. The defendant walked out of court a free man.
I find the informality of German court proceedings interesting, because it’s such a stark contrast with American courts. The judge controls the proceeding and asks common-sense questions to gather information. The defendant can show up without a lawyer, as this defendant did, and speak for himself about the charges directly to the judge. The judge also doesn’t engage in elaborate, scripted questioning routines to remind the defendant of his or her rights. Most judges don’t insist on much formality. As soon as lawyers and judges leave the courtroom, they remove their black robes and walk out of the courthouse looking like normal people. There’s not even a barrier between the witness stand (which is in the middle of the room, facing the judge), and the chairs for observers and visitors. When the defendant and his family left the courtroom, obviously happy with the outcome, they called an informal Tschüss (“Bye!”) to the courtroom personnel, and nobody was offended.
Germany may have a reputation for unnecessary bureaucracy, but German criminal trials belie this stereotype. Of course this was a low-level case, and more important trials will be more formal and have more security. But even those never approach the rigid, rule-bound style of American criminal justice. The guiding principle of a German trial is to quickly find out what the important issue is and decide it without a lot of fuss and bother. This is why many American observers, once they understand how the German justice system works, come away impressed with its no-nonsense efficiency.
The U.S. is famous in Germany for its 'runaway' juries which hand down zillion-dollar lawsuits against poor defenseless companies. Yet, as I told my dumbfounded students, Germany is a far more litigious society than the USA. In fact, according to a book-length 1998 study, Germany is the most lawsuit-happy country on earth:
Country Cases per 1,000 Population
• Germany 123.2 • Sweden 111.2 • Israel 96.8 • Austria 95.9 • U.S.A. 74.5 • UK/England & Wales 64.4 • Denmark 62.5 • Hungary 52.4 • Portugal 40.7 • France 40.3
My German students were dumbfounded by this fact. Most of them got their image of the world from the mainstream press. And, as usual, German journalists tended to obsess over the real or imagined failings of other countries, while remaining ignorant of what was going on in their backyard.
But aside from the good clean fun of this tu quoque response, it's interesting to think about why Germany is so litigious. I think there are 4 main reasons:
Legal insurance (Rechtschutzversicherung). Millions of Germans have legal insurance policies that pay for lawyers both to file claims and defend against them. This insurance is affordable because litigation costs in Germany are low. Legal insurance is actually an excellent idea, every country in the world could benefit from widespread legal insurance. What it means in Germany, though, is that if you have a policy, you don't have to think twice about filing a lawsuit. Granted, the lawyer is not supposed to file if you don't have a claim, but many do anyway. Legal insurance also provides a lifeline for many small-time lawyers — they can patch together a decent livelihood by having a constant docket of 40-50 small time cases going on at any time. None of these cases will generate a huge verdict, but a steady stream of small payments is enough.
Lawsuits are a fact of life. Nobody really takes them seriously. If your landlord hikes your rent, you use your legal-insurance lawyer to fight it. The landlord uses their legal-insurance lawyer to defend. After all, if you don't sue, you'll certainly have to pay the extra 10% in rent. If you do sue, you might end up with a discount. The landlord would probably do the same thing in your position, and knows this.
Close neighbors make bad blood. Germany is a small country packed with people. Everything you do in public is going to have some effect on your neighbors. If a potted plant falls off your city balcony, it's going to hit someone or something below. If your cat likes to relieve themselves on your neighbor's lawn, they're going to notice. And might just take lethal action. Your barbecue smoke is going to trigger someone's asthma 5 houses down. The list goes on and on. Every German state has a long, complex "neighbor law" (here's the one (g) for my state), and many lawyers do nothing else. And once again, these petty squabbles are going to end up in court because it's so easy to go to court because of legal insurance.
And finally, no lawsuit is too tiny. As Wagner once said, a German is someone who will always do something for its own sake. Which means Germans will file a suit over anything. Why, here's a story (g) from the excellent criminal-defense blog lawblog. Two retirees went fishing for deposit bottles in Munich, a favorite pastime of poor Germans, or just ones who need some way to fill their days in the fresh air.*
They approached a large man-sized glass-recycling container, whipped out their grabbers, and started fishing around inside the container. Recycling containers are supposed to be reserved for bottles which don't have a deposit on them, like wine bottles. But many people don't care or don't know how to tell a deposit from a non-deposit bottle, and just toss everything in.
Sure enough, our two hunters found 15 deposit bottles with a total value of € 1.44. Two other Germans, who were certainly feeling very German that day, called the police and reported the bottle-fishers for theft. Wait, what? Two people minding their own business, helping recycle glass, augmenting their puny incomes, harming nobody, and their fellow Germans report them to the cops? Welcome to Deutschland, my friends.
Now German prosecutors are obliged to investigate every credible accusation of crime that comes to their attention, the famous "Principle of Legality"**. This they did. The first thing they had to determine was what the value of the theft was. Technically, this was a theft — once you throw a glass bottle into a recycling bin, it becomes the property of the recycling company. So you might think that the amount of the theft was the deposit value of the bottles. But no! It turns out that the recycling company does not separate out deposit bottles from other ones. Scandalous, I know. So all the bottles just get melted down. The prosecutor asked the recycling firm how much value the bottles would have as recycling material, and the firm said: basically, it's too small to even put a number on.
At this time, the prosecutor chose to halt the proceedings (einstellen) based on the idea that there was no public interest in prosecuting the offenders. The writer at lawblog thinks this was the wrong reason to stop the prosecution — he thinks a better theory is to deny the people had any attempt to commit theft, because they had no intent to take possession of the bottles — their ultimate goal was simply to transfer them to a different owner.
Be that as it may, the main thing to notice here is that several different government employees spent hours of their time and used considerable resources to investigate an accusation of a crime which, at the very most, involved the lordly sum of € 1.44. It's probably only a slight exaggeration to say that the German state spent 1000 times more money investigating the theft than it was actually worth in the first place.
Now, am I going to snigger about this? Of course I am, and so are you. But at the same time, I'm not going to go too far. The most important thing to keep in mind about high numbers of lawsuits is that they are an important sign of social health. In the vast majority of societies, lawsuits are prohibitively expensive and courts are woefully underfunded and corrupt, so nobody trusts them. Germans and Americans trust courts to usually resolve legal disputes in a fair and equitable manner, otherwise they wouldn't seek them out so often. They're right to do so; both the USA and Germany have exceptionally fair and efficient legal systems, despite their imperfections. A fair, professional, and generally non-corrupt legal system is one of humanity's most important achievements, full stop. Most countries don't yet have one. If you happen to live in a country which does, take a moment and thank your lucky stars.
* You'd be surprised how many Germans decide they just don't fancy showing up to work anymore and having someone boss them around and tell them to do things. So they develop something hard to pin down, such as a bad back or burnout stress, hire a good employment lawyer, and presto! They're still technically employed in a certain sense, but they don't actually have to, you know, do anything. Everybody wins: their former employers are free of someone who wasn't really contributing, the employee has all the free time he wants, and most importantly, the government doesn't have to formally add this person to the unemployment rolls. Northern European welfare states are notorious worldwide for using a million different tricks to lower their official unemployment rate, and this is just one.
** Some German lawyers, or wanna-be lawyers, believe a lot of adorably misguided things about the principle of legality. If you begin talking about the American legal system, they will get up on their hind legs and begin intoning something like this: "Well, you see, in America most criminal cases are resolved by plea-bargains, where the defendant admits a crime — quite possibly not the one he actually committed — in return for a lighter sentence. This shows the irresponsible, frivolous gamesmanship of the system, where the objective truth of what happened can be bargained away as if justice were nothing more than a poker game. Here in Germany (string music starts swelling in the background), we believe in the principle of legality, which means the prosecutor must investigate all crimes and must prosecute based on the objective facts of what the defendant actually did."
It's at this point that I usually interject to point out that this speech is, not to put too fine a point on it, a crock of shit. First, German prosecutors are absolutely not obliged to bring every case to prosecution. As with all German legal principles, the principle of legality has a pragmatic loophole so big you could fit Saturn through it. A prosecutor is always permitted to "suspend" (einstellen) a prosecution if it is deemed a petty offence (§ 153, Criminal Procedure Code). Suspend is yet another German euphemism, it means the case is dropped. Although there may be a tiny theoretical chance of it being re-started, this basically never happens.
There are many other sections of the Code that permit the prosecution to suspend the investigation or to not bring charges on a variety of different grounds, the most frequently used being the prosecution's belief that bringing charges is "not in the public interest" for some reason. As you might guess, there are hundreds of stories of prosecutors suspending prosecution of high-powered or well-connected people for vague reasons. In fact, there's a whole book (g) ("Prosecution Unwanted!") about this, although it's not very convincing overall.
Also, if you believe plea bargains don't exist in Germany, I've got a bridge in Moscow I'd like to sell you. Even before plea bargains were legally allowed in Germany, it was common knowledge that prosecutors used their huge discretion to plea-bargain all the time. Like American prosecutors, German prosecutors are hopelessly understaffed, and the entire justice system would collapse if cases couldn't be resolved informally.
The practice became so notorious that eventually the federal legislature decided to stop pretending and legalize it. In 2009, it passed a law which, for the first time, legally recognized plea-bargaining in Germany. The law was full of procedural safeguards meant to ensure that the defendants' rights were respected and the principle of legality was not undermined. Would the law pass constitutional muster? The German Federal Constitutional Court held that it did, in 2013:
The principle of individual guilt enshrined in the Basic Law (Grundgesetz – GG) and the related duty to ascertain the substantive truth, as well as the principle of fair trial in accordance with the rule of law, the presumption of innocence, and the court’s duty to maintain neutrality make it impermissible to allow parties to the proceedings and the courts to freely determine how to ascertain the truth, how to apply the law to the facts so established, and what sentences to impose.
Plea bargains between the court and the parties to the proceedings that concern the trial’s status and prospects, and that promise the accused minimum and maximum sentencing limits if he or she confesses, entail a risk that the constitutional requirements will not be fully met. Nevertheless, the legislature is not a priori precluded from permitting plea bargains to simplify proceedings. It must, however, take adequate precautions to ensure that the constitutional requirements continue to be met. The legislature must continually review the effectiveness of the designated safeguard mechanisms. If they prove to be incomplete or unsuitable, the legislature must make improvements and, if necessary, revise its decision to permit plea bargains in criminal proceedings.
The FCC can be a very pragmatic court sometimes, as here. The court noted that a study had shown that many of the detailed procedural requirements of the law were being ignored in practice by overburdened prosecutors, but held that this did not require a finding of unconstitutionality.
Thus, as in so many areas of comparative law, two countries which appear at first to differ fundamentally on principle end up, in practice, choosing basically the same real-world solutions to legal problems.
If you're a fan of Roald Dahl, you know that in addition to the beloved children's classics such as James and the Giant Peach and Charlie and the Chocolate Factory, he also published a collection of erotic stories entitled Switch Bitch.
But that's nothing compared to what the author of Bambi got up to. Bambi was originally published in Austria in 1923 as Bambi, eine Lebensgeschichte aus dem Walde (Bambi, a Life in the Woods) by the Austrian writer Felix Salten.
Now before we get to the Viennese whore, it's time for a detour to visit with the Soviet spy. Bambi was translated into English in 1928 by none other than Whittaker Chambers, one of the most notorious American figures of the Cold War. Take it away, Wikipedia:
Whittaker Chambers … was a 20th-Century American writer, editor, and Soviet spy.
But Bambi's unwholesome associations go even further. Long before he wrote the story of the cuddly deer baby Bambi, Felix Salten wrote what one critic called "the only German pornographic novel of world-wide status", the 1906 book entitled Josefine Mutzenbacher, or the story of a Viennese Whore as Told by Herself (Josefine Mutzenbacher oder Die Geschichte einer Wienerischen Dirne von ihr selbst erzählt) (full German text here). The initial printing was subscription-only to avoid censorship laws.
Salten never explicitly admitted authorship of Josefine Mutzenbacher, and because neither he nor the publisher submitted it for copyright protection, it was freely pirated, and remains in print to this day, having sold some 3 million copies to date. It furnished the basis for not one but 11 German soft-core porno films made between 1970 and 1994 (the original film's English title was "Naughty Knickers").
But even that's not all. The original novel itself was put on an "index" of books harmful to minors by the Federal Republic of Germany's Federal Review Board for Media Harmful to Minors in 1969. This didn't mean the novel was banned, but it did severely restrict sales and marketing. The Wikipedia summary of the book's plot may give you an idea of why they made this decision:
The story is told from the point of view of an accomplished aging 50-year-old Viennese courtesan who is looking back upon the sexual escapades she enjoyed during her unbridled youth in Vienna. Contrary to the title, almost the entirety of the book takes place when Josephine is between the ages of 5–12 years old, before she actually becomes a licensed prostitute in the brothels of Vienna. The book begins when she is five years old and ends when she is twelve years old and about to enter professional service in a brothel.
Although the book makes use of many "euphemisms" for human anatomy and sexual behavior that seem quaint today, its content is entirely pornographic. The actual progression of events amounts to little more than a graphic, unapologetic description of the reckless sexuality exhibited by the heroine, all before reaching her 13th year. The style bears more than a passing resemblance to the Marquis de Sade's The 120 Days of Sodom in its unabashed "laundry list" cataloging of all manner of taboo sexual antics from incest and rape to child prostitution, group sex and fellatio.
Adding to the general perversion, Bambi himself makes a cameo appearance in one of those group-sex scenes [no, he doesn't — ed.]. In the late 1970s, a legal campaign was launched to remove the book from the index. In 1990, Germany's Federal Constitutional Court issued a landmark decision on the case.
Although the court acknowledged the book had plenty of potentially child-endangering pornographic elements, including a rather eye-popping amount of pedophilia and incest, it also had literary qualities which qualified it as a work of art, thus entitling it to protection under the artistic freedom provisions of Article 5 of the German Constitution.* The Court decision held (g) that some parts of the youth protection law were unconstitutional infringements of artistic freedom.
Nowadays, Felix Salten is largely forgotten, but that didn't stop the Austrian government from sending an official delegate (g) to the Jewish Museum of Vienna (Salten was Jewish) to open a 2007 exhibition on the man and his work.
* Just so nobody gets the wrong idea: the Court's decision doesn't mean that the book can't be regulated, it just means that the book's qualities as a work of art must be taken into account when balancing artistic freedom against the legitimate government interest in preventing harm to minors.
A huge conglomeration of public and private foundations put together a three-part series on the early 2000s murder spree of the National Socialist Underground called Mitten in Deutschland (In the Middle of Germany) in Germany and German History X when it was released by Netflix with English subtitles.
It's basically a trilogy of feature-length movies. I found it surprisingly good. German television and movies punch below their weight in general, but have shown some intermittent signs of improvement in recent years. Deutschland '83 is much more than watchable, and so is German History X.
The first movie, about the formation of the 2-man one-woman 'trio' which formed the core of the NSU, shows the protagonists coming together in the 1990s neo-Nazi scene in Jena. The three core performers are stellar. The film also does a fine job of demonstrating how young people in the damaged, demoralized East often sought fellowship and a sense of purpose in violent Nazi groups. The second movie focuses on the victims, and is held together by a strong performance by Almila Bagriacik, who emerges from adolescence under the shadow of the murder of her father. The police immediately seek the killer in the 'milieu' of foreign small businessmen, without considering the possibility of a terrorist motive even after numerous other foreign shopkeepers are killed with the same weapon used to kill the first victim.
The final movie, which focuses on the investigation, is the slackest of the bunch. This is hard to avoid, since the subject is, by definition, an investigation that went nowhere. The early-2000s murder spree of the three NSU members was discovered only posthumously, when two of them committed suicide after a botched 2011 bank robbery, and the murder weapon was found in their accomplice's apartment. The third movie paints a picture of detectives who develop solid leads, only to be frustrated by the machinations of the Thuringia state Verfassungsschutz. The Verfassungsschutz claimed to have deeply infiltrated the groups supporting the NSU trio, and fought against any arrests, questioning, or surveillance which could theoretically blow their agents' cover. Which meant, in the end, that they provided an enormous amount of cover, and even financing, to out-and-out Nazis who were committing sundry violent crimes. The movies' clear implication is that the Verfassungsschutz was operating at least in part out of sympathy for the right-wingers' goals.
The English translation of Verfassungsschutz in the movies was "secret service", which obviously doesn't do justice to this peculiar organization. English-language viewers certainly missed many of the implications of what was shown in the third film. Basically, the "Agency for the Protection of the Constitution", as the title means in English, is an originally West German domestic spying and intelligence agency. As its name implies, it is theoretically supposed to monitor, document, report on, and suppress any nascent threats to the German constitutional order. This includes right-wing and left-wing extremists, religious organizations, and cults. Each German state has one of these agencies, and there is a federal one as well. To call them controversial is an understatement — they are often accused of putting far more energy into surveillance of left-wing militants than right-wing groups, and are also accused of chilling free speech by singling out politically-charged organizations and publications for scrutiny in their public reports. In fact, the right-wing weekly newspaper Junge Freiheit – successfully sued to prohibit the Verfassungsschutz from mentioning them in its reports.
The agency has also been involved in innumerable scandals involving — at the very minimum — incompetence. The most recent in a very long list is the hiring of Roque M. (g) — a German citizen of Spanish descent who was hired as a Verfassungsschutz spy in the State of Northern Rhine Westphalia despite a history of mental instability and bizarre behavior, such as acting in gay porn films even though he was a married father of 4, running his own gay porn publishing house, running a website selling "German Military Underwear. Strong. Manly. Sexy.", and converting to radical Islam. The Verfassungschutz – apparently unaware of the possibility of running a Google search — only found out about him when he bragged about being a mole in the agency and working on plans to destroy it in an online forum which was being monitored by his co-workers.
In fact, the picture of the German law enforcement authorities in all of the films is devastating. The Keystone Kops of East Germany let the three neo-Nazis go underground even after finding bombs and weapons in one of their hideouts. Cops invent a hare-brained drug-smuggling conspiracy theory to explain the totally unrelated murder of ethnic-minority shopkeepers all over Germany with the exact same weapon. (Although this isn't mentioned in the film, they also chased a phantom serial killer whose existence was based on botched DNA testing). Their attitude toward murder victims' surviving relatives is callous in the extreme; Germany still has only a vestigial state infrastructure for providing counseling and care to surviving family members of murder victims. And in the third movie, the police actively allow and sometimes even assist neo-Nazis to commit violent crimes and spread propaganda, either out of incompetence or covert sympathy for their goals.
The general portrayal of police agencies is counterbalanced by sympathetic portrayals of individual cops, but they are seen as constantly having to fight against institutional blindness, rivalry, and silo-mentality thinking. When they're not fighting against moles in their own and other agencies who actually intentionally assist the neo-Nazis. The picture of police is probably a bit exaggerated, but there is no doubt much of it was justified — there are still dozens of very strange unanswered questions surrounding the fruitless investigation of the NSU murders. And, given the authorities' mania for secrecy and the lack of a culture of vigorous investigative journalism fed by leaks from inside the government, they'll probably remain unanswered forever.
MAO — Materialien zur Analyse von Opposition (Materials for Analysis of the Opposition) is an online archive (g) of documents from the heyday of German Maoism. It collects flyers, magazines, manifestos, artwork, banners and other ephemera from the early- to mid-1970s, when some factions on the German left became enthusiastic adherents of Chairman Mao thought. The website is a bit hard to navigate, but you can tell it's a labor of love and probably dates from the 1990s, so gratitude is in order.
I stumbled on an interesting document, a review of a book by Jörg Immendorff. First, a bit of background. Immendorff was a Düsseldorf-based artist famous enough to have an English Wikipedia entry. He was a fixture of the Düsseldorf culture scene and a teacher at the Kunstakademie until his death from ALS in 2008. More on him later.
The book the Maoists review is entitled (my trans.): 'Here and Now: Do What Must Be Done. Jörg Immendorf. Materials for a Discussion: Art in Political Struggle. Whose Side Are You On, Culture-Creator?' Despite this engaging title, the book doesn't seem to have sold many copies and is now rare. This is the cover (from this antiquarian website (g) where you can buy the book for €120):
I'm sure this painting is by Immendorff himself. It isn't Hockney/Currin-esque ironically self-aware textureless or 'bad' painting. It's just clumsy. This is what most Immendorffs look like. If you're getting the idea that I don't dig him, you're right-on, man. I've always found his stuff unconvincing: either crowded and ugly, or flat and cliched.
But what about his political views? Like so many German lefty/culture types, Immendorff jumped onto the bandwagon of Maoism in the early 1970s. This book is obviously from that period.
A review of the book and the associated exhibition can be found in this 1973 agitprop flyer (g) from the Revolutionary Artists' Group, found on the archive website. Let me apologize in advance for the layout of this page from a self-proclaimed 'Artists' group'. Clearly, these Revolutionary Artists are mostly untrained, given what's on display in most of the pamphlet. Yet no matter how limited your means are, there's no excuse for pages clogged with unreadable clots of text like the one below. Apparently columns are tools of the bourgeoisie.
But let's forge ahead anyway. The handwritten title reads: "Progress at the anti-imperialist Culture Front!" and begins: "A book has just appeared from Comrade Jörg Immendorff, who is active in the Group of Revolutionary Artists — Ruhr Struggle."
The review, misspelling Immendorff's name, reports breathlessly that he has decided 'to consciously place his artistic activity in the service of the people and the revolutionary proletariat'.
The article then reports on the exhibition accompanying the book, which was held in the Westphalian Artist's League in Münster. Both the exhibition and the book, the review states, 'show the attitude of a partisan artist who has developed away from bourgeois philistinism towards cultural creation marked by class struggle. Both (the exhibition and the book) are a declaration of war on the brainless bourgeois avant-garde…which have learned nothing from the anti-imperialist movement of 1968.'
During the entire exhibition, young members of the 'anti-imperialist league' staffed a book-table with 'revolutionary writings' inside the museum.
The exhibition also featured a roundtable discussion with members of the Communist Students' Association, the Anti-Imperialist League, the Group of Revolutionary Artists, and Immendorff. Immendorff admitted his works were not yet fully 'revolutionary', given their incompleteness and flaws, and thus that he sought 'discussion and critique' from the audience.
One critique focused on Immendorff's portraits of 'Marx, Engels, Lenin, Stalin, and Mao Tse-Tung', which were based on the works of Chinese 'people's artists'. One cannot simply import the stylistic devices of the Chinese revolutionary artists' Social Realism into German conditions, because the international class struggle is always defined by the particular historical, social, etc. etc. — you get the picture.
Immendorff's later history is well-known to all Germans. He continued producing masterpieces of socialist-realist artwork in the service of the international proletariat, donating every penny of profit to Third World liberation movements. He lived in a humble apartment in the working-class section of Düsseldorf, volunteering much of his time teaching painting to Turkish immigrant children. Even those who disagreed with his political views couldn't help admiring the depth of his commitment to social justice.
Oh wait, wrong Immendorff. While no doubt continuing to mouth the occasional revolutionary slogan, he went on to amass a fortune of between 15 and 18 million Euros (g) at the time of his death. He described his own philosophy of life as 'selfishness'. Late in life, he married a Romanian ingenue 30 years his junior (former student) and rechristened her Oda (after a Germanic god), last name Jaune. The French word for yellow, Immendorff's favorite color. Not hers.
But that didn't stop Immendorff from regularly renting luxury hotel rooms, to which he would invite groups of up to 15 prostitutes. There, he held hours-long cocaine orgies with them costing sums in the five-figure range. He was caught white-handed during one of these, so to speak, and eventually sentenced to 11 months' probation. At the time of this coke and champagne orgy, his wife Oda was in an advanced state of pregnancy. As a result of the prosecution, Immendorff nearly lost his comfortable civil-servant position as a teacher at the Düsseldorf art academy — run by the state he no doubt routinely claimed to despise.
Just before he died, he changed his will to try to bestow upon the long-suffering Oda his entire fortune. This came as rather a disappointment to Immendorff's illegitimate son Jean-Louis, born in 1999. Immendorf ignored the letters and pictures his son sent him during his life, and took no interest in him. Fortunately, German law guaranteed the son an 1/8 of Immendorff's inheritance, no matter what Immendorff tried to arrange.
And that, ladies and gentlemen, is yet another object lesson in why nobody should pay the slightest attention to the political opinions artists claim to have.
The German press is fascinated and disturbed by videos of American police using excessive force, like the one above.
Why do these videos exist? Because in the United States, it is every citizens' constitutional right to film the police doing their job unless they are interfering with police work:
Taking photographs and video of things that are plainly visible in public spaces is a constitutional right — and that includes the outside of federal buildings, as well as transportation facilities, and police and other government officials carrying out their duties.
Police often tell people to stop filming, but those cops don't know the law. Unless the videos are obscene, you can post those videos to the Internet with full constitutional protection, and that's exactly what people do. They are then played over and over on German websites.
Can you film cops arresting people in Germany and then post that video straight to the Internet? The short answer is: absolutely not. The somewhat longer answer is: Sure, you can do it, but you could well be sued for tens of thousands of Euro, and have to wait for a court decision about whether the public interest in publishing the video was stronger than the privacy rights of the people displayed.
The crucial background to know about this issue is that German law gives people powerful protections over the use of their own image and voice and the protection of their privacy — legal protections which most Germans appreciate, and which don't exist to anywhere near the same extent in the US. The question then becomes whether police officers doing their jobs in public enjoy these same protections. Many German courts have held that they do.
Marvin Oppong, a journalist for the 'torial' (g) blog in Germany who wanted to film his own questioning by police decided to look into the matter in detail. He interviewed several lawyers nad journalists. Here's a summary of what he learned:
Can you take pictures of the police? German courts are all over the place on this issue. Some say this is basically allowed in public spaces. It also depends on where. Inside buildings such as train stations you may be prohibited from doing so because of station rules. According to other decisions, the police can also request that you delete the photos or promise not to distribute them in any way or they will sue civilly.
Can you video record your own encounters with the police? Yes, unless it interferes with their work. However, you may face civil or criminal liability if you distribute the results in any way without the officers' consent, since they have a right to control the distribution of their own image. Recording their voices is only permissible in a 'completely open and public' situation. If that is not the case, then simply recording their voices is actually a crime bringing up to three years' imprisonment. You read that right: if the situation is not deemed public (whatever that means), merely recording someone's spoken words is itself a crime. If the policeman knows you are recording his voice and doesn't object, that may be a defense.
Can you publish photos and videos of a police encounter on the Internet? No: German courts have held that publishing videos of a police officer's conduct on the internet creates a 'pillorying' effect that violates the police officer's right to the protection of his personality (Persönlichkeitsrecht in German). This is so even though you are filming the officer doing his or her job in public. You may be able to publish general photos of public events, but a photo that clearly focuses in on one officer will violate that officer's right to control over the distribution of their own image. Which means you will need the officer's permission to publish it.
Can police ask you to identify yourself if they see you filming them? Basically, yes. They can also bring you to the police station for questioning if you don't have any personal ID with you.
Are the rules different for journalists? Possibly. If they are filming an incident of public importance, they may be able to claim that their right to do their job outweighs the officers' rights.
So, to sum up: if you are a private citizen and see German police officers engaging in questionable conduct in public and post a video of that in the Internet — as Americans do hundreds of times every day — you will enter a legal minefield of contradictory court precedents. You will probably expose yourself to tens of thousands of euros in damages as well as possible criminal prosecution. Your only hope is if a court, in your specific case, finds that the public interest served by your publishing the video outweighed all of the restrictions German law places on taping and photographing people. Even police officers doing their job in public.
Public service time! In the USA, there is a cottage industry of people spreading the word about what rights citizens have during encounters with police. One of the best videos is from 'Flex Your Rights'. It's just below. The video addresses automobile stops and house searches, but I decided to concentrate on this post on police stopping and questioning people on foot. The video starts just as a a police car pulls up to question a young black male. The cops are investigating illegal graffiti in the area. The lawyer comments on each step of the transaction:
So what's the situation in Germany? A popular German legal website has a short but informative article here (g). The basic ground rules:
Police must always give you a reason for stopping and questioning you. However, this reason does not alway have to be a concrete suspicion. In certain circumstances police are permitted to stop people as a preventive measure to avoid dangers to public safety (Gefahrenabwehr). These are not intended to assist in investigating a crime, but rather preventing one.
For this justification to apply, it needs to be shown that a danger to public safety exists at a particular location — for instance, a demonstration in which disturbances are likely to take place, or a well-known drug market where crimes are routine.
Such places are often named specifically in your local state's local-policing law — for instance Bavaria allows suspicionless public-safety searches where large numbers of prostitutes gather. Also, in special circumstances police can declare entire regions of a city 'danger zones', as Hamburg did in 2014 during left-wing demonstrations.
And what if the police do stop you based on general location? You are required to answer basic questions: your name, your address, your nationality, date and place of birth. The police can ask you to present an identification card (either the German national identity card or a passport), but you are not required to carry this identification around with you everywhere, so if you don't have it with you, that is not against the law.
The police may ask you further questions, such as where you are coming from and where you are going, but you are not required to answer them. A lawyer quoted in the article recommends that you do answer them in a polite but very curt manner, since this is likely to de-escalate the situation.
Note that this applies only when the police stop you without any concrete suspicion you have committed a crime. If they do have such a suspicion, they may be entitled to ask more questions.
The police are also permitted to engage in questioning of random people without individualized suspicion of crime at airports and train stations and trains. The purpose of these stops is usually to try to find illegal immigrants. A German court has found that stopping someone based solely on their appearance or skin color is unconstitutional according to the German Basic Law. (The lawyer in me says they will almost certainly find other ways to justify the search, though.)
Doing a bit of research I came across the online version (g) of the Bambergische Peinliche Halsgerichtsordnung, one of the first European criminal codes. It was written by a German knight, one Johann the Strong, Baron of Schwarzenberg and Hohenlandsberg. Johann was 'Hofmeister' (a senior court official) to the Bishop of Bamberg.
From a legal perspective the Bamberg code is forward-looking in many ways, but in other ways it's, er, medieval. And what's even more awesome is that the medieval stuff is illustrated. Directly below we see court officials preparing for interrogation under torture, the so-called peinliche Befragung(g). It's even accompanied by a short poem (anyone want to try a translation in comments?). Below that we see a man about to be beheaded with a sword in the foreground, with a poor bastard broken on the wheel in the background.