The Collini Case

by Ferdinand von Schirach

  ‘This is most unusual, Herr Mattinger,’ said the presiding judge, shaking her head. ‘You have not made an application to produce this evidence, nor has the court called Dr Schwan.’

  ‘I’m aware of that,’ said Mattinger. ‘And I ask for the court’s forbearance, but in the interests of the accessory prosecution I had to act quickly.’

  The presiding judge looked at the judges sitting to the right and left of her. They both nodded. ‘Well, we have not called any other witnesses to give evidence today. If the prosecution and the defence have no objections either, then I will admit Dr Schwan as an expert witness. But I will tell you to your face, Herr Mattinger, this is the only time I will go along with such a performance.’

  ‘Thank you very much,’ said Mattinger, sitting down.

  The presiding judge asked a police officer to call the expert witness. She entered the courtroom and went over to the witness stand. Hair combed back, not much make-up, an intelligent face. She opened her briefcase and put about ten pale grey document folders on the table in front of her. Then she looked at the presiding judge and smiled briefly.

  ‘Would you please tell us your name and your age in years?’ asked the presiding judge.

  ‘My name is Dr Sybille Schwan, and I am thirty-nine years old.’

  ‘And your profession?’

  ‘I am a historian and a lawyer, and at present I am director of the Federal Archive in Ludwigsburg.’

  ‘Are you related to the defendant in any way by blood or by marriage?’

  ‘No.’

  ‘Dr Schwan, the law stipulates that I must advise you of the following points. You must make your report without prejudice, to the best of your knowledge and according to your conscience. You may be asked to swear to that on oath. Perjury carries a penalty of at least a year in prison.’ The presiding judge turned to Mattinger. ‘Herr Mattinger, you have asked Dr Schwan to attend this court. The court does not know on what subject you want to question the witness, so I authorize you to ask questions directly. Very well, please begin.’ The presiding judge leaned back.

  ‘Thank you very much.’ Mattinger looked over the top of his reading glasses at the expert witness. ‘Dr Schwan, can you tell us something about your education and training?’

  ‘I studied law and medieval history at the University of Bonn. I graduated in both subjects and obtained a doctorate in history. After that I did two years of in-service training at the College of Archivists in Marburg. For the last eighteen months I have been director of the branch office of the Federal Archive in Ludwigsburg.’

  ‘What archive exactly is that?’

  ‘In 1958 the Central Office of Justice Departments of the Federal States was founded to cast light on crimes committed by the National Socialists. There was office space available in Ludwigsburg, and so the Central Office was set up there. Judges and public prosecutors from all the Federal States of Germany were sent there. As far as possible they were to assemble all the documentation still extant on the crimes of the Nazis, carry out preliminary investigations, and then pass proceedings on to the public prosecution offices of the states concerned. On 1 January 2000 a branch office of the Federal Archive was set up in the Ludwigsburg building. We manage documentation from the Central Office. There are about eight hundred to a thousand metres of archival material in the branch office.’

  ‘So as director of the archive you are professionally concerned with the shootings of hostages and partisans in the Third Reich.’

  ‘Yes.’

  ‘Can you explain to the court, in plain language, what the shooting of partisans actually entailed?’

  ‘Both the Germans and the Allies shot civilians during the Second World War. These shootings were viewed as reprisals for attacks on their own fighting forces, and a means of forcing the population not to try any more attacks.’

  ‘I understand. Did that kind of thing happen often?’

  ‘Yes, very often. For instance, thirty thousand people were shot in France alone. In all, the figures run into hundreds of thousands.’

  ‘And did these shootings lead to criminal proceedings after the fall of National Socialism?’

  ‘Yes, in many countries they did. For instance in France, Norway, the Netherlands, Denmark, Austria, before the British military court in Italy, and before the American military court at Nuremberg in immediate post-war Germany. Later, of course, there were also trials in the Federal Republic.’

  ‘With what result?’

  ‘It varied. Some defendants were acquitted, some were found guilty.’

  ‘How did the American military court in Nuremberg see it, for instance?’

  ‘In what was known as the Hostages Trial, a number of German generals were accused of responsibility for the killing of hundreds of thousands of innocent civilians in Greece, Albania and Yugoslavia. The prosecution called for a guilty verdict.’

  ‘And how did the court decide?’

  ‘The court described the killing as a “barbaric relic from the distant past”. But …’

  ‘But what?’ asked Mattinger.

  ‘But in extreme cases, the court ruled, it had been legitimate.’

  ‘Legitimate? The killing of innocent civilians legitimate? In what circumstances could that be so?’ asked Mattinger.

  ‘In a whole range of circumstances. For instance, it was never legitimate to kill women and children. The killing itself must not be cruel. No one must be tortured before execution. Serious attempts must always be made to find and capture the real perpetrators of the attacks.’

  ‘Were there other stipulations?’

  ‘Yes. The facts of reprisal shootings must be made publicly known afterwards. That was the only way to induce the rest of the population to desist from further attacks. A controversial point was deciding in what ratio a shooting could be justified.’

  ‘What do you mean?’ asked Mattinger.

  ‘Did you shoot one civilian in reprisal for one dead soldier? Or ten? Or a thousand?’ said the expert witness.

  ‘And how was that question answered?’

  ‘Again, in very different ways. There is no hard-and-fast ruling in international law. In 1941 Hitler demanded a ratio of one hundred to be killed in reprisal for one German soldier – that would certainly never have been allowed under international law.’

  ‘What is the highest limit?’ asked Mattinger.

  ‘There’s no all-purpose answer to that, but in any case it must not be excessive.’

  ‘Thank you very much, Dr Schwan. And now we come to the real subject of these questions. Are you familiar with the Hans Meyer file?’

  ‘Yes, I am.’

  ‘Let’s go through it in detail. In 1944, Italian partisans detonate a bomb in a Genoese café. Two German soldiers are killed in the explosion. According to the criteria you have listed, would that be an attack?’

  ‘Yes.’

  ‘After the attack on the café, the security service tried to find the partisans responsible. They could not be tracked down. Would you say that this condition, one of those you mentioned, was met?’

  ‘Yes, I would.’

  ‘On orders from his superiors, Hans Meyer had twenty partisans shot. The ratio was one to ten. Was that too high, or was it legitimate?’

  ‘I can’t give you a definitive answer to that, but it would probably have to be regarded as legitimate.’

  ‘But,’ said Mattinger, ‘the courts forbade the shooting of women and children, am I right?’

  ‘Yes. That was never legitimate. In all these cases, only the perpetrators of an attack were considered guilty.’

  ‘In this case, according to the file, only grown men were killed in reprisal. The youngest was twenty-four years old. Did international law justify that too?’

  ‘Yes.’

  ‘To the best of your knowledge, were the men tortured before execution, in order to get information from them – which of course was also forbidden?’

  ‘No. There is no evidence of that in the fi
le.’

  ‘Was news of the shooting of the partisans made publicly known?’ asked Mattinger.

  ‘The file contains reports of it from three local newspapers. That ought to satisfy the basic principles of international law.’

  Mattinger turned to the court. ‘In other words, all the criteria that the witness has named were met.’ He took off his glasses and put the file in front of him aside. ‘Dr Schwan, were any legal proceedings ever taken against Hans Meyer?’

  ‘Yes.’

  ‘Yes?’ Mattinger acted as if he were surprised. ‘The public prosecutor’s office actually investigated Hans Meyer?’

  ‘Yes, the public prosecutor’s office in Stuttgart.’

  ‘When was that?’

  ‘From 1968 to 1969.’

  ‘And was Hans Meyer found guilty?’

  ‘No.’

  ‘No? … Was he charged?’

  ‘No.’

  ‘Was he even questioned?’

  ‘No.’

  ‘Ah, I see.’ Mattinger half turned on his chair to the spectators’ and press benches. ‘He wasn’t even questioned … that’s interesting. So although the public prosecutor’s office in Stuttgart initiated proceedings against Hans Meyer because of these accusations, although there were investigations and a file was drawn up, he was neither charged nor condemned. We have just heard that Hans Meyer fulfilled all the criteria for a legitimate shooting of hostages. Hence my last question, Dr Schwan: what happened to the proceedings against Hans Meyer?’

  ‘They were discontinued.’

  ‘That is so, the proceedings were discontinued,’ said Mattinger. ‘On 7 July 1969 the public prosecutor’s office in Stuttgart dropped its investigations into Hans Meyer.’

  ‘That’s correct.’ The expert witness glanced at Leinen as if for support. Almost imperceptibly, he nodded.

  ‘Thank you, Dr Schwan.’ Mattinger turned to the court. ‘I have no more questions for the witness.’ He had won: Hans Meyer was no longer a murderer. Mattinger smiled.

  ‘We will adjourn now for lunch,’ said the presiding judge.

  Leinen turned to Collini, whose head was bowed. His hands lay heavy in his lap. The big man had been shedding tears.

  It had taken Mattinger only two hours to kill Collini’s father for the second time.

  ‘It’s not over yet,’ said Leinen. Collini did not react.

  Outside the courtroom, Mattinger was answering questions from the press. Leinen passed him on his way out. There were reporters standing on the pavement, and one of them briefly pursued him, but Leinen ignored the man. He stopped in a side street, let his briefcase drop and leaned back against the wall of a building. He was having trouble getting rid of the cramp in his thigh. Then he walked past a side building of the courthouse complex, making for the little park. He saw a memorial plaque that he had never noticed before on the high brick wall in Wilsnackerstrasse: ‘Madness alone was lord of all this land.’ It was a line from the Moabit Sonnets of Albrecht Haushofer, who had written the poem in prison before the Nazis shot him in 1945. Leinen went through the entrance in the wall into a tiny park that had once been pressed into use as a cemetery. The city had put up a tall concrete memorial bearing the words: ‘They died in combat, in air raid shelters, out in search of the necessities of life, shot through the back of the neck, or by their own hand.’ He sat down on a bench. Three hundred people who had died in the final days of the war lay here, an improbable resting place in the middle of the city.

  Leinen couldn’t imagine what the war had been like. His father had told him about the cold, about sickness and dirt, about soldiers with icicles clinging to them, deprivation, death and fear. He himself had seen countless films, had read books and essays. The Third Reich had been discussed at school in connection with almost every subject; many of his teachers had studied in the 1960s and wanted to do better than their parents. But ultimately it was all just a distant world. Leinen closed his eyes and tried to relax.

  When everyone was back in the courtroom just after two in the afternoon, the presiding judge said, ‘The court has no questions for the expert witness. Senior public prosecutor, do you have any questions?’ Reimers shook his head. She turned to Leinen. ‘Counsel for the defence … ?’

  The clock on the wall above the spectators said 2.06. The spectators, the journalists, the judges, the public prosecutor, Mattinger and the expert witness were all looking at Leinen, waiting. Light fell through the tall yellow windows, and was reflected on the presiding judge’s glasses. Dust motes hovered in the air. A car horn hooted out in the street.

  The presiding judge said, ‘Obviously the defence has no questions to ask either. Does anyone want to apply for the expert witness to be put on oath? No? Good. Can the expert witness be discharged?’ Reimers and Mattinger nodded. ‘Then thank you for appearing at short notice, Dr Schwan, and –’

  ‘Yes, I do still have a few questions,’ Leinen interrupted, raising his voice. Mattinger opened his mouth, but said nothing.

  ‘Rather late in the day, Herr Leinen. But go on, please.’ The presiding judge was annoyed.

  Leinen’s voice had changed; there was no softness in it now. ‘Dr Schwan, can you tell us who laid charges against Hans Meyer?’

  ‘It was your client, Fabrizio Collini.’

  One of the judges raised his head suddenly. No one had known that. Mattinger’s face paled.

  ‘When did the public prosecutor’s office discontinue its investigation?’ asked Leinen.

  The expert witness leafed through her files. ‘On 7 July 1969. Fabrizio Collini received notice of the decision to discontinue the investigation on 21 July 1969.’

  ‘Just to make it perfectly clear: we are now speaking of the discontinuation of the proceedings about which Herr Mattinger was asking you before we adjourned at midday?’

  ‘Yes.’

  ‘Did the public prosecutor’s office in Stuttgart discontinue proceedings against Hans Meyer because the shooting of the partisans was legitimate?’

  ‘No.’

  ‘Really? No?’ Leinen raised his voice. It reflected the surprise of everyone in the courtroom. Everyone but him. ‘But that is what you have just told us.’

  ‘No, it isn’t. Herr Mattinger asked his questions skilfully, so the court may have gained that impression. All I said was that investigations were discontinued. The reason for discontinuing them, however, was entirely different.’

  ‘Entirely different? Did the shooting maybe not take place?’

  ‘It did.’

  ‘Then Hans Meyer was not involved?’

  ‘Hans Meyer was in command.’

  ‘I don’t understand. Why were proceedings against him discontinued?’

  ‘It’s simple enough …’ She took her time over answering. Leinen knew that this question touched on her favourite subject. They had discussed it together for hours in Ludwigsburg. ‘The statute of limitations had come into force.’

  There was restlessness in the courtroom.

  ‘ “The statute of limitations”?’ repeated Leinen. ‘Then there was never any further investigation of Hans Meyer’s guilt or innocence?’

  ‘That’s right.’

  ‘So if I understand you correctly, my client told the public prosecutor’s office the name of the man who had his father shot. Fabrizio Collini did everything that the law of the land required him to do. He laid charges. He said what the evidence was. He trusted the authorities. And then, a year later, he gets a letter, a single sheet of paper saying that proceedings have been discontinued because what happened is now subject to a statute of limitations?’

  ‘Yes. It was subject to the statute of limitations because of a law that came into force on 1 October 1968.’

  The journalists had taken their notepads out of their briefcases again and were scribbling busily.

  Leinen was still feigning astonishment. ‘What? After all, 1968 was the year of the student riots. The country was in a state of emergency. The students held their parents’ g
eneration responsible for the Third Reich. And in that of all years – 1968 – the Bundestag decided that such acts were cancelled out by the statute of limitations?’

  Mattinger rose; he had pulled himself together again. ‘I object. What is this? A criminal trial or a history lecture? This matter has nothing to do with the proceedings of the court. Obviously the Bundestag of the time wanted such crimes to be subject to a statute of limitations. We are not trying the legislators, we are trying the defendant.’

  ‘On the contrary, Herr Mattinger, this matter has a great deal to do with the question of guilt,’ said Leinen. There was a steely edge to his voice. ‘It does not change the fact that Collini killed a man. But, as you said yourself, there can be a great difference between whether his act was arbitrary or whether it is understandable.’

  The presiding judge was slowly turning her fountain pen in her hand. She looked first at Mattinger and then at Leinen. ‘I will allow the question,’ she said at last. ‘It affects the defendant’s motive, so it can have a deciding influence on the question of guilt.’ Mattinger sat down again; there was no point in complaining about her decision.

  ‘Can you ask that question again?’ said Dr Schwan.

  ‘Certainly. But let me phrase it a little differently,’ said Leinen. ‘Herr Mattinger said just now that in 1968 the Bundestag wanted Nazi crimes to be subject to a statute of limitations. I ask you, as a historian, is that so?’

  ‘No, it’s much more complicated than that.’

  ‘More complicated?’

  ‘There was heated debate in Germany in those years. All crimes from the time of the Third Reich had been subject to a statute of limitations since 1960. Except for murder. Murder cases were still to be prosecuted. Then, however, there was a catastrophe.’

  ‘What happened?’ Leinen knew the answer, of course, but he had to lead the expert witness through his cross-examination in such a way that everyone would understand what it was all about.