Sofia pulled Biegler’s coat closer around herself. ‘Perhaps Sebastian knew his father’s story, and the story of Goya’s Black Paintings. Perhaps that’s why he created that photo of The Maja’s Men,’ she said.
‘Perhaps. When did you and he separate?’ asked Biegler.
‘Soon after he met her. I didn’t know she was his sister. He said he had to be alone. Then he phoned me in Paris, only a day before he was arrested, eleven months after we separated, eleven months when I almost went crazy. He said he needed me. I went to Berlin at once, but he was already under arrest. I’ve been visiting him in remand prison every two weeks. We haven’t talked about the case because he didn’t want to.’ She put her hand on Biegler’s arm. ‘I miss him so much. It feels as if someone has drawn the curtains and put out the light. What’s the point of it all?’
‘Most questions remain open-ended.’ Biegler looked at the time. ‘You haven’t had enough sleep. Do sit in the car, it’ll be warmer there,’ he said.
He went back into the house, closed the shutters and locked the door. Down in the village, he could indistinctly make out the roof of the inn.
8
The trial was to begin at nine a.m. Journalists and cameramen were standing outside the courthouse, and inside the building the corridors and the courtroom where the trial was to be held were also crowded. Biegler had never seen so many reporters concentrating on a case before. The day before, two large television news channels had announced that they would be covering the trial. He saw Monika Landau, as counsel for the prosecution, surrounded by microphones, but in such a throng he couldn’t hear what she was saying. Before the trial, he had given almost every newspaper an interview on the subject of torture; he had even appeared on a talk show, much as he disliked that kind of thing. Now, when he entered the courtroom, the presiding judge was leaning against the judges’ bench and talking to the woman who, as court reporter, would be keeping the minutes for his records. He nodded to Biegler.
‘Looks like being a strenuous day,’ said the presiding judge.
Biegler brushed this aside. ‘A lot of fuss,’ he said.
A few minutes after Biegler had taken his seat, a small door in the wooden panelling opened and two police officers brought Eschburg into the courtroom. He sat down next to Biegler, looking composed.
It was almost thirty minutes before the journalists and spectators had taken their places. The police officers had to ask for quiet several times. When the professional judges and the lay judges who assisted them entered the room, the lawyers acting in the trial and the spectators stood up.
‘This session of the 14th Criminal Court is now open,’ said the presiding judge. ‘Sit down, please.’
The presiding judge then established the presence of those taking part in the trial. Then he asked Eschburg his name, date of birth and last place of residence.
‘If there are no petitions, I will ask the representative of the Public Prosecutor’s Office to read out the arraignment,’ said the presiding judge.
As almost always in such major trials, the arraignment was short: Eschburg was accused of abducting and murdering his half-sister. Her body had not been found, and in view of these special circumstances no features of the murder could be established.
Public Prosecutor Landau was wearing a white blouse and a white scarf under her robe. She’s a pretty woman, Biegler reflected, and was then annoyed with himself for letting this inappropriate thought cross his mind.
The presiding judge explained that the district court had allowed the charge to go straight to the main trial. Then he turned to Eschburg, and instructed him in his right to remain silent. So far, it was all routine; matters were running as in any other trial for murder.
‘We now,’ said the presiding judge, ‘have an unusual situation. In principle it is the defendant’s right to express an opinion on the charges at once. In this trial, however, there is another factor, to the effect that before the defendant made a confession he was threatened with torture by a police officer. Should that turn out to be true, his confession could not be used in court. The defendant could then decide, again, how to act: whether to remain silent or make a statement. The court has therefore decided to hear what the police officer concerned has to say before any subsequent statement may be made by the defendant. Are those concerned with the progress of these proceedings in agreement, or are there any objections?’
Biegler and Landau nodded. At the mention of torture, the spectators on their allotted benches had become restless. The journalists had placed notepads on their knees and were making notes.
The police officer who had interrogated Eschburg wore a suit and tie. The presiding judge asked him the usual questions: how old he was, where he lived, whether he was related to the defendant. He answered fast, as if it were routine. He was used to speaking in a law court. The presiding judge reminded the police officer that he must tell the truth. The officer nodded.
‘I will now make the content of Public Prosecutor Landau’s memo known. It is on page 105 of the fourth volume of the files.’ The presiding judge waited until the court recorder had written that down. Then he said, ‘According to that memo, you are said to have threatened the defendant in the course of an interrogation. You are said to have called him a bastard and a rapist, and to have threatened him with torture. The defendant then confessed to a crime. He said he had killed the young woman and disposed of her body. The confession is not complete because at that point Public Prosecutor Landau interrupted the interrogation. So much for the memo.’
The presiding judge leaned slightly forward and looked directly at the police officer.
‘I would now like to hear the witness’s account of the course of this interrogation. Before you say anything, however, I must point out that you may refuse to answer any such questions if by doing so you expose yourself to the risk of prosecution. In that case, you may remain silent. But if you do say anything, it must be the truth.’
The presiding judge turned to the court recorder. ‘Instruction given in accordance with Clause 55, Code of Criminal Procedure,’ he dictated to her, before going on.
‘It is also my opinion that you may even remain silent on any question concerning the interrogation, when you could have made yourself liable to prosecution for coercion, bodily harm and other offences. So you do not even have to say that you interrogated the defendant.’
‘The law protects you,’ said Biegler out loud.
‘Please do not interrupt me, Herr Biegler,’ said the presiding judge. He turned to the police officer again. ‘Public Prosecutor Landau has told the court that preliminary proceedings against you have been instituted. You can also call on a lawyer of your choice to assist you in any evidence you give as a witness concerning this interrogation. Do you fully understand all that?’
The police officer nodded.
‘How do you choose to proceed?’ asked the presiding judge.
‘I will decline to make any statement,’ said the police officer. His voice was firm.
Public Prosecutor Landau looked up from her files.
Of course he’s taken advice, thought Biegler. There were only two possible strategies in such a situation: denial or silence. Denial was no longer possible.
‘Then I have no questions for the witness,’ said the presiding judge. ‘Does anyone else involved in these proceedings have a question for the witness, or can he be discharged?’
Public Prosecutor Landau shook her head.
‘I have a few questions for the witness,’ said Biegler. Once again, the spectators became restless.
‘Quiet, please,’ said the presiding judge. He turned to Biegler. He sounded impatient, almost cynical. ‘Of course, Herr Biegler, I was sure that, as counsel for the defence, you would have questions. Go ahead.’
Biegler did not react to the implied reproach. He had accepted the brief in order to clear up this one point, and he must at least try. ‘How long have you been in the police force?’ he asked.
‘And when did you join the murder squad?’
‘Twelve years ago.’
‘How many cases of murder have you investigated in that time?’ Biegler had encountered the police officer in many previous trials; he was a man who knew his job.
‘I don’t remember precisely, but a great many,’ said the officer.
‘In all the time you have been in the police force, that is to say the last thirty-six years, how often have preliminary proceedings against you been instituted?’
‘Never before.’
‘So you have never been accused of menaces, coercion, bodily harm or any other indictable offence?’
‘This is the first time.’ The police officer glanced briefly at Landau, who was impassive.
‘So you could be described as a very experienced officer who knows the law and has never before been at odds with it?’
‘I could.’
‘You gave an interview to a tabloid newspaper shortly before this trial opened. Wait a moment, please.’ Biegler leafed through the file lying on the desk in front of him. ‘Here we are.’ He held up a sheet of newsprint.
‘I haven’t seen this interview,’ said Landau.
‘Then get hold of it,’ said Biegler, ‘and don’t interrupt me again.’
He turned back to the police officer. ‘You are reported as having said, in your interview, the following – I quote: “Imagine that a terrorist hides a nuclear bomb somewhere in Berlin, and it is timed to go off in an hour’s time. We have found the terrorist, but we don’t know where his bomb is. I have to make a decision. Do I torture him, and save four million lives? Or do I fold my hands in my lap and do nothing?” Is it true that you said that?’
‘I wouldn’t like to say.’
‘Why not? Because you might incriminate yourself?’ asked Biegler.
‘The witness can refuse to answer that question too,’ said Landau.
‘Really?’ asked Biegler. ‘Are you no longer willing to stand by what you said to a newspaper with a circulation of millions? For fear of criminal prosecution? Like the criminals whom you usually investigate?’
‘Your honour,’ said Landau, addressing the presiding judge, ‘I move that defending counsel be requested to keep quiet. He is putting pressure on the witness.’
‘The witness is experienced enough to decide for himself,’ said the presiding judge. ‘I’ve instructed him in his rights. He knows that he doesn’t have to answer.’
Biegler was still looking at the police officer, who turned in his chair to return his gaze. Getting somewhere at last, thought Biegler.
‘Once again, won’t you tell us something about that interview? This has nothing to do with your interrogation of the defendant, it’s solely a question of your attitude.’
The police officer undid both buttons of his suit jacket. ‘Very well,’ he said. He exhaled audibly. ‘I would make sure I got terrorists to talk. Even by means of torture, if nothing else worked. My job is to protect citizens. I stand by that.’
A spectator applauded. The presiding judge looked at him. ‘If you do that again I will have you removed from the courtroom,’ he said.
‘And what,’ Biegler went on, ‘would you do if your prisoner still refuses to say anything? He’s a terrorist, remember, he’s been trained to withstand torture. He’s laughing at you. Now, you happen to know that the man has a fourteen-year-old daughter. You are sure that he’ll talk if you torture his daughter before his eyes. Would you do that, too?’
‘No, I wouldn’t. The daughter is innocent.’
‘But so are all the other people in this city,’ said Biegler. ‘You could save four million of those innocent lives. A little torture against the safety of the whole of Berlin. That’s more like a fair deal, surely.’
‘I…’
‘So, to your way of thinking: the girl can’t help what her father is like. She is innocent, you tell yourself, I must not torture her.’
‘That’s right,’ said the police officer.
‘Then the innocent must never be tortured?’
‘That’s how I see it.’
‘But how about your terrorist? How do you know that he’s guilty? Just like that? On the grounds of evidence? Your gut feeling?’ asked Biegler.
‘It was only an example,’ said the police officer.
‘An example for first-year law students. But I am asking you as an experienced police officer. Do you think a terrorist would walk into the police station and say: hi, how are you? By the way, I’ve just hidden a little nuclear bomb in Berlin, timed to go off in an hour from now, but I’m not saying where it is.’
‘That’s ridiculous,’ said the officer. ‘In my example we’d have been keeping the terrorist under observation for months. We’d know he was a terrorist, we’d know he was guilty.’
‘Guilt established by observation. I see. And how would you know he’s hidden a bomb? Have you observed that as well? If so, how come you didn’t arrest him on the spot? Why didn’t you keep tabs on his mobile phone? Why don’t you know who his contacts are? Why haven’t you evaluated the contents of his laptop? In other words: isn’t it always the case that there’s much more going on than the mere information that a terrorist has hidden a ticking bomb?’ asked Biegler.
‘The example was only intended to show what an exceptional situation we could be in,’ said the police officer. ‘I meant to explain how it can be necessary to adopt harsh measures.’
‘But you would admit that no such case really exists.’
‘As I said, it’s only an example,’ said the police officer.
‘Right. Then, if I understand you correctly, you would torture the terrorist to get the truth out of him.’
‘So that the bomb could be defused,’ said the officer.
‘Do you believe that all witches have slept with the Devil?’ asked Biegler.
‘What?’
‘I mean, are you aware that one reason why torture has come to be considered wrong is because prisoners in pain will confess to anything? They don’t tell the truth, they say whatever the torturer wants to hear. During the Inquisition all witches slept with the Devil – or at least, that’s what they said if they were tortured for long enough. A time came when even the Pope realized it was useless as a means of getting at the truth. In your example of the ticking bomb, you can’t check whether the terrorist is telling the truth in time.’
‘Maybe not. But maybe I can find the bomb and defuse it.’
‘So you would use torture if, maybe, it would help?’
‘I… I’d have to do it to save human lives.’
‘I understand,’ said Biegler.
‘And in my example we know that he’s hidden the bomb,’ said the officer.
‘That’s the wonderful thing about your example. You know everything. Including the fact that he’ll tell the truth under torture… You said that, as an experienced member of the police force, you were familiar with the law.’
‘Yes.’
‘And with the constitution of this country?’
‘Of course,’ said the officer.
‘So you know that everyone – even an abductor – is under the protection of that constitution. Is it clear to you that by torturing prisoners, you are infringing their constitutional rights?’
‘And what about the constitutional rights of the victim of a crime?’ asked the officer.
‘I think I see what you mean,’ said Biegler. ‘You make a decision. You tell yourself, for instance, that an abducted child is innocent, the abductor is guilty. He has forfeited his constitutional rights, and I may therefore torture him.’
‘To save the child. It would be torture for a good end,’ said the officer.
‘Torture for a good end?’ said Biegler. ‘Then it is simply a kind of extra harsh interrogation with a noble aim in mind?’
‘Yes.’
‘Perhaps under medical supervision?’
‘I can envisage
that, yes,’ said the police officer.
‘Long after torture was abolished in this country, the Nazis reintroduced it. They too thought up a special expression for it. Do you know what it was?’
‘No.’
‘They called it “aggravated methods of interrogation”. Sounds almost as nice as “torture for a good end”, don’t you think? But let’s return to our example. By what means will you come to your decision?’
‘Which decision?’ asked the police officer.
‘You have to decide whom to torture,’ said Biegler.
‘I told you already: the child is innocent, the abductor is guilty,’ said the officer.
‘So you would torture anyone who’s guilty?’
‘No, only in extreme circumstances, of course,’ said the officer.
‘Imagine the abductor tells you, “Yes, I did kidnap the girl. But she is in a nice house, she has plenty of food and warmth, she has enough books to read and games to play.” Then what? Do you torture the abductor in those circumstances?’
‘I… I…’
‘I mean,’ said Biegler, ‘where do you draw the line? When may you torture someone? Only when a girl of ten has been abducted? Or maybe when the victim is a homeless man of fifty, a social near-outcast? You’d do it if the President of the Federal Republic was abducted? But if it’s a man known to be a rapist, you’d rather not? Who, in your world, decides when torture may be inflicted? You yourself? As a kind of judge, public prosecutor, counsel for the defence and executioner all rolled into one?’
‘That’s enough,’ said Public Prosecutor Landau.
‘I protest,’ said Biegler. ‘This is the second time. If you want the court to forbid me to speak, apply in due form. We’re conducting a trial for murder, not taking part in a talk show when anyone can say what he likes. At the moment I have the right to speak, and you should keep silent.’ He got control of himself again, and said more quietly, ‘Let’s please try to understand the witness.’
‘I’ll allow defence counsel’s question,’ said the presiding judge. ‘I’m interested myself.’
The Girl Who Wasn't There Page 13
