The Collini Case

by Ferdinand von Schirach

‘On 1 October 1968 an inconspicuous little law was passed. It was called the Introductory Act to Administrative Offences. Indeed, the law seemed so unimportant that it wasn’t even debated in the Bundestag. None of the parliamentary deputies there realized what it meant. No one saw that it was going to change history.’

  ‘You’ll have to explain it to us in a little more detail.’

  ‘The whole thing began with a man called Dr Eduard Dreher. During the Third Reich, Dreher was Head Public Prosecutor at Innsbruck Special Court. We don’t know much about him at this time, but what we do know is bad enough. For instance, he called for the death sentence to be passed on a man who had stolen some food. He also wanted it for a woman who had bought a few clothing coupons illegally. Her sentence of thirteen years in prison wasn’t enough for Dreher; he had her taken to a Workers’ Educational Camp.’

  ‘ “Workers’ Educational Camp”?’

  ‘Comparable to a concentration camp,’ said the expert witness. ‘After the capitulation, Dreher initially settled in the Federal Republic to practise law. But in 1951 he was co-opted into the Federal Ministry of Justice, and his career began to take off. Dreher became head of a section and director of the criminal law department of the ministry.’

  ‘Was Dreher’s past known?’

  ‘Yes.’

  ‘But all the same he was appointed?’ asked Leinen.

  ‘Yes.’

  ‘What happened to the law?’

  ‘First you have to know that in juridical terminology only the top Nazi leaders were murderers,’ said the expert witness. ‘All others were regarded as accessories to murder. There were only a few exceptions.’

  ‘So Hitler, Himmler, Heydrich and so forth were the murderers, the others merely rendered assistance?’

  ‘Yes. They were regarded as people who had only received and obeyed orders.’

  ‘But … but practically everyone in the Third Reich was only obeying orders,’ said Leinen.

  ‘Yes, that’s so. Every soldier who obeyed orders, according to this juridical definition, was only an accessory.’

  ‘Then,’ asked Leinen, ‘if a man in a ministry had organized the transport of Jews to a concentration camp, by that juridical definition he was not a murderer either?’

  ‘That’s right. According to the juridical definition, the people who organized such things from their desks were all just accessories. None of them counted as murderers in front of the courts.’

  ‘Apart from the fact that such a proposition strikes me as absurd – did this distinction affect criminal prosecutions?’

  ‘Not at first.’

  ‘But you spoke of a catastrophe,’ said Leinen.

  ‘That law devised by Dreher, the Introductory Act to Administrative Offences, changed the timing of the statute of limitations. The legal administration departments of the eleven Federal states, the Bundestag parliamentary deputies and the legal committees all failed to spot it. Only the press revealed the scandal. And once everyone was awake to it, it was too late. To put it in very simple terms, the law meant that certain accessories to murder were now sentenced as if they were accessories to manslaughter instead.’

  ‘Meaning that … ?’

  ‘Meaning that all of a sudden what they had done was now beyond prosecution. Subject to the statute of limitations. The killers went free. Picture it: at the same time preparations were being made by the public prosecutor’s office in Berlin for major proceedings against the head office of Reich Security. When the Introductory Act to Administrative Offences was passed, the public prosecutors might as well pack up their briefs and go home. The officials who had organized the massacres in Poland and the Soviet Union, the men responsible for the deaths of millions of Jews, priests, communists and gypsies could no longer be called to account. Dreher’s law was nothing less than an amnesty. A cold-blooded amnesty for just about everyone.’

  ‘But why couldn’t the law simply be repealed?’

  ‘It’s a basic principle of a constitutional state founded on the rule of law that once a criminal offence is subject to a statute of limitations, that ruling can never be reversed.’

  Leinen got to his feet. He went the few steps to the judges’ bench and picked up one of the grey volumes of legal commentaries on the table in front of the presiding judge. He held the book out to the expert witness. ‘Forgive my asking, is this the same Dreher? Dr Eduard Dreher, author of the most popular commentary on the criminal law? A commentary now to be found on the desks of almost every judge, prosecuting and defending counsel?’

  ‘Exactly,’ said the expert witness. ‘He was co-author of the “Dreher/Tröndle” commentary.’

  Leinen let the book drop back on the judges’ table. Then he sat down again.

  ‘Was Dreher called to account?’

  ‘No. To this day it can’t be proved beyond all doubt that Dreher himself didn’t simply make a mistake. He died, highly esteemed, in 1996.’

  ‘Back to our case,’ said Leinen. ‘You said that in principle the shooting of partisans was justified, in certain carefully defined circumstances, by the international law in force at that time. How would the courts and the public prosecutor’s office have judged Hans Meyer in the 1960s? Would he have been a murderer or an accessory to murder?’

  ‘Of course that is a highly theoretical question. If I look at what Hans Meyer did beside comparable incidents of the same period … I think the courts would not have considered the shooting of those partisans cruel.’

  ‘Would it be different today?’ asked Leinen.

  ‘The Auschwitz trial of 1963 to 1965 in Frankfurt confronted large parts of the population with the full horror of the past for the first time. But it was not until the end of the 1970s that the mood really changed. That was when the American series Holocaust first went out on German television. Every Monday, between ten and fifteen million people watched and discussed the latest episode. Our lives and judgements are not the same now as they were in the 1950s and 1960s.’

  ‘And what would the outcome be now?’

  ‘The partisans were shot where they would fall into a pit on Meyer’s orders. They wore no blindfolds. They saw the dead on whom they fell. They had to hear their comrades being shot before them. The journey to their place of execution lasted for hours, and all that time they knew that they were going to die. Shooting them where they would fall into the pit is reminiscent of the mass shootings in concentration camps … Yes, I think that the Federal Supreme Court would judge matters differently today: Meyer would be regarded as an accessory to murder.’

  ‘But if I have understood you correctly, even that would not have been any use.’

  ‘Yes, that’s so. Meyer’s actions were subject to the statute of limitations. Jurisprudence and the law would have protected him.’

  ‘Thank you, Dr Schwan.’

  Leinen sat down again. He felt exhausted.

  The presiding judge discharged the expert witness without requiring her to take the oath. Then she said, ‘We will adjourn for now. In view of the new evidence that has been given, the court will discuss how the schedule should continue. Please keep yourselves free for sessions on Mondays and Thursdays for the next few weeks. The main trial will resume in this courtroom next Thursday. Good day.’

  The courtroom slowly emptied. Leinen remained sitting. Collini said nothing for a long time, and Leinen did not want to break his silence. After a while he came back to the present. ‘I’m not that good with words, Herr Leinen. I just wanted to say I don’t think we have won. At home in Italy we say the dead don’t want revenge, it’s only the living who want it. I sit in my cell all day, thinking about that.’

  ‘It’s a wise saying,’ said Leinen.

  ‘Yes, a wise saying,’ said the big man. He stood up and shook hands with Leinen.

  Collini had to bend to get through the little door leading to the prison. The usher locked it after him.

  Mattinger was waiting outside the courtroom door. He had a cigar in his mouth, and w
hen he saw Leinen he smiled. ‘Well done, Leinen, it’s quite a while since I was defeated like that. Straight down the line. Congratulations.’

  They went down the steps to the main entrance together.

  ‘Tell me, how did you know I was going to call the director of the archive as an expert witness?’ asked Mattinger.

  ‘You’re right that I did know. In Ludwigsburg Dr Schwan and I found that we saw eye to eye. She called me after you had been in touch with her. I was able to prepare.’

  ‘Excellent. That’s the way to win cases. You’re probably the most sought-after lawyer in the Federal Republic at this moment. But my dear Leinen, you’re wrong all the same.’ The old lawyer drew on his cigar and puffed smoke into the air. ‘Judges can’t decide according to what seems politically correct. If Meyer acted correctly by the standards of the time, we can’t blame him for it today.’

  They went out through the main entrance.

  ‘I think you’re mistaken,’ said Leinen, after a while. ‘What Meyer did was always cruel, objectively speaking. The fact that judges of the 1950s and 1960s might have decided in his favour doesn’t alter that. And if they wouldn’t do so today, it just means that we’ve made progress.’

  ‘That’s exactly what I mean, Leinen. It’s the zeitgeist. I believe in the laws, and you believe in society. We’ll see who turns out to be right in the end.’ The old lawyer smiled. ‘Anyway, I’m off on holiday now. I don’t want to take any further part in this trial.’

  Outside the door, Mattinger’s chauffeur was waiting by his car. ‘Oh, Leinen, did you know that Johanna Meyer fired Baumann, the company lawyer, yesterday? She was outraged when she heard that the idiot had tried to bribe you.’

  Mattinger got into his car, the chauffeur closed the door. He lowered the window. ‘And if you still want to be a defence lawyer after this trial, Leinen, come and see me. I’d be very happy to take you into partnership.’

  The car drove off. Leinen watched it go until it had disappeared in the traffic.

  19

  When Leinen woke up it was already light. The time was seven in the morning; the tenth day of the trial would begin in two hours’ time. He went into the kitchen in shorts and T-shirt, made coffee and lit a cigarette. He fetched the newspaper from the corridor, put on a coat and sat on the balcony with his coffee cup.

  When he entered the courtroom at nearly nine, an officer told him that the trial would not resume until eleven. ‘By order of the presiding judge.’ Leinen shrugged his shoulders, put his robe and files down at his place and went into Weilers with only his briefcase. The wind was still chilly, but you could sit outside. A journalist came over to his table. He was phoning his editorial office, the resumption of the trial was delayed, he said, no one knew why, he suspected it was some new petition on the part of the defence. Leinen was glad that the man didn’t recognize him. He looked at the people going into the courthouse: defendants, witnesses, a class of schoolchildren with their teacher. A taxi driver was arguing with a policeman: could he or couldn’t he park outside the main entrance? Leinen ran his hand over the soft leather of the briefcase; it was stained, and torn in two places. His father had given it to him when he’d taken his examinations. Leinen’s grandfather had bought it in Paris after the end of the war; it was so expensive that his grandmother had been horrified. But in the end the briefcase had proved its worth. It had come to be almost a part of Grandfather. ‘A good briefcase gives you a touch of style,’ he always used to say.

  Just before eleven Leinen went back into the courtroom. The accessory prosecution bench was empty. Leinen looked round at the glass cage behind him. ‘Where’s my client?’ he asked the officer on duty. The man in the grey-blue uniform shook his head. Leinen was about to ask him what that was supposed to mean when the presiding judge came into the courtroom.

  ‘Good morning,’ she said, ‘please sit down.’ She didn’t sound the same as usual today. She waited, still standing, until everyone involved in the proceedings as well as the press and the spectators had quietened down.

  ‘Your honour, my client isn’t here yet. He hasn’t been brought up. We can’t begin,’ said Leinen.

  ‘I know,’ she told him quietly, almost gently. She turned to the lawyers, officials and spectators in the courtroom. ‘The defendant, Fabrizio Collini, took his own life in his cell last night. The forensic pathologist puts his time of death at two-forty.’ She waited until everyone had taken it in. ‘I therefore have the following decision to announce. The trial of the defendant is discontinued. Costs and necessary expenses will be borne by the state.’

  Someone dropped a pen somewhere; it rolled over the floor, the only sound in the room. The court reporter began typing. The presiding judge waited. Then she said, ‘Ladies and gentlemen, this session in the 12th Criminal Court is now concluded.’ The judges and lay judges rose at almost the same moment and left the courtroom. It all happened very fast. Senior Public Prosecutor Reimers shook his head and wrote something in his file.

  The journalists were racing out of the courtroom to call their newspapers, their radio and TV stations. Leinen sat where he was. He looked at the empty chair where Collini had sat; its fabric was wearing thin at the sides. A police officer gave Leinen an envelope with the words ‘For defending counsel’ written on it. It was still sealed.

  ‘From your client. It was found lying on his table,’ said the usher.

  Leinen tore the envelope open. It contained only a photograph, a small black-and-white snapshot, brittle and faded, with a jagged white border. The girl in the picture was about twelve years old, she wore a pale blouse and she was looking intently into the camera. Leinen turned it over. On the back a note in his client’s clumsy handwriting said, ‘This is my sister. Sorry for everything.’

  Leinen stood up, passed his hand over the back of the chair and packed up his things. He left the courthouse through a side entrance and drove home.

  Johanna was sitting on the steps outside his building. The collar of her thin coat was turned up and she was holding it together in front. Her hand was white. Leinen sat down beside her.

  ‘Am I all those things too?’ she asked. Her lips were quivering.

  ‘You’re who you are,’ he said.

  In the playground in front of the building, two children were squabbling over a green bucket. In a few days’ time the weather would be warmer.

  In January 2012, a few months after the publication of this novel in the original German, the Federal Minister of Justice appointed a committee to reappraise the mark left on the Ministry of Justice by the Nazi past. This novel constituted one of the points of reference.

  Appendix

  Until 30 September 1968, § 50 of the Federal German Criminal Code ran:

  If several persons take part in a crime, each of them has committed a punishable offence, without regard to the guilt of any other person.

  If the law decides that special personal qualities or circumstances call for a more severe or more lenient penalty, or exclude a penalty altogether, that applies only to the offender or accessory to the offence concerned.

  Clause 1 No. 6 of the Introductory Act to Administrative Offences came into force on 1 October 1968 (Federal Law Gazette I, 503). Thereafter § 50 of the Federal German Criminal Code ran as follows.

  If several persons take part in a crime, each of them has committed a punishable offence, without regard to the guilt of any other person.

  If none of the special personal qualities, circumstances or conditions (special distinguishing features) forming grounds for the penal liability of the perpetrator of a crime are present in an accessory to it, then the accessory’s penalty is to be mitigated in line with the regulations on the penalty for an attempted crime.

  If the law decides that special distinguishing features call for a more severe or more lenient penalty, or exclude a penalty altogether, that applies only to the offender or accessory to the offence concerned.

  Acknowledgement

  My thanks t
o Klaus Frings. Without his ideas and his research I could not have written this book.

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