Why do Germany's laws protect Nazi defendants? - opinion

Is German law’s identity protection of those being charged with accessory to murder in Holocaust-related trials justified?

 Gates of Auschwitz-Birkenau  (photo credit: VIA WIKIMEDIA COMMONS)
Gates of Auschwitz-Birkenau
(photo credit: VIA WIKIMEDIA COMMONS)

Recently, several Holocaust-related trials are being held in Germany in which the defendants are being charged with accessory to murder. German law protects their anonymity.

As a rule, a defendant in a criminal case in Germany has the right to identity protection: his full name and photo are not revealed to the public. In Germany, privacy rights are very far-reaching, protecting the suspect and the convict alike. Only in a few exceptions do judges decide that the public right to information prevails. This has not been the case in the holocaust-related trials currently underway.

In this article, we explain why such far-reaching identity protection in cases relating to Nazi crimes is inappropriate. Identity protection, it is argued, is similarly inappropriate in regard to defendants charged with war crimes, crimes against humanity and cases of severe crime. In regard to these cases, they call for the publication of a current photo and the disclosure of the full name of the accused. 

Due to identity protection rules in Germany, the German version of this article published in Die Welt on Tuesday had the surnames of the accused as an initial because it could not be written in full.

Despite the 2019 indictment and 2020 conviction of Bruno Dey, who served at the Stutthof concentration camp between 1944-45, of 5,232 counts of accessory to murder by a Hamburg court, no current full-face photo of this person has appeared anywhere. In all images of Bruno Dey, he is shown with his face concealed.

Despite charges filed in 2021 against Irmgard Furchner, who served as a secretary to the commandant of Stutthof concentration camp, Paul-Werner Hoppe, of accessory to the murders of 11,412 inmates between 1943-45, and against Josef Schuetz, who served as a guard at Sachsenhausen concentration camp, of knowingly and willingly being an accessory to the murders of 3,518 prisoners between 1942-45, no current full-face photo of these defendants has appeared, only with their faces concealed.

 HOLOCAUST SURVIVOR Emil Farkas (center), who testified against Sachsenhausen concentration camp guard Josef Schutze, poses with Dr. Felix Klein (right), the top German official responsible for combating antisemitism, and Dr. Efraim Zuroff. (credit: ILANA DREYER) HOLOCAUST SURVIVOR Emil Farkas (center), who testified against Sachsenhausen concentration camp guard Josef Schutze, poses with Dr. Felix Klein (right), the top German official responsible for combating antisemitism, and Dr. Efraim Zuroff. (credit: ILANA DREYER)

While the names of the accused are not given in full in media sources inside Germany, this is not the case outside Germany. There appears to be a lack of awareness of this in Germany and abroad.

Is German law’s identity protection of these defendants justified?

In legal proceedings, a balance is sought between basic value-principles: The public nature of the trial and the accused’s privacy rights. Are the unique privacy-law concepts in German law appropriate in the prosecution of Holocaust-related crimes or should Israel’s model of full disclosure be preferred in cases where issues of terrible crimes against humanity and war crimes are involved?

Invariably, criminal cases arouse public interest and that is especially true in regard to those that relate to Nazi perpetrators. In regard to criminal cases as a whole, it is usual in America, the UK and Israel for the full name of the accused and the indictment to be available on its filing and a photo of the defendant is not precluded from publicity at the opening of a trial (in the absence of a petition to the contrary) and full disclosure is taken for granted, i.e. a current photo and full name of the defendant, certainly upon conviction. Were it to be thought that the presumption of innocence should preclude such disclosure, then all criminal prosecutions would necessitate a veil of anonymity until conviction – a view that is highly questionable, untenable and not applied anywhere in the world.

In war crimes trials and in regard to crimes against humanity, historically and today in international courts and tribunals, the name of the defendant, the details of the indictment and photo of the accused are generally available to the public prior to any hearing. This too has been the case in Nazi trials in Israel, Great Britain, the United States and elsewhere. However, in the Nazi-related cases recently held in Germany, uniquely and extremely restrictive practices are put into effect – such that the disclosure of the defendant’s full name or photo are proscribed at the filing of the indictment, after the trial has begun and occasionally even after the defendant has been convicted. This is an anomaly and though the media sometimes brings about greater disclosure, the question remains as to whether this exaggerated form of identity protection in Germany, applied equally to the Nazi-related cases, is appropriate – and what this may say about societal norms in Germany, in regard to looking at its past, its own hidden face.

Germany’s post-war legal system failed to address the criminality of hundreds of thousands of Germans directly involved in cruel, inhuman deeds between 1939-45 who were never prosecuted, let alone punished for their crimes. The past was left in the past and the vast number of criminal perpetrators have lived in German society undisturbed, some even keeping their positions, in all aspects of life. Today, two generations later, there are those who try to redress this travesty of justice and seek to prosecute offenders, still alive, who served in the Nazi apparatus created to facilitate the systematic killing of large numbers of innocent people.

Since the Demjanjuk case, it has been possible in Germany to convict for accessory to murder – without proof of a specific criminal act – any individual who served in any capacity in a death camp or in the Einsatzgruppen (S.S. death squads) that were responsible for the murder of 1.5 m. people, based on service alone. This is a noteworthy development unique to German law in regard to Nazi-related crimes, enabling a new spate of prosecutions. To begin with, the Demjanjuk precedent, on its facts, established culpability of any individual who served in any capacity in a vernichtungslager (extermination camp, such as Chelmo, Belzec, Sobibor, Treblinka, Majdanek and Auschwitz-Birkenau) and this has been broadened from 2019 with the Rehbogen prosecution and Dey conviction, the defendants having been guards at Stutthof concentration camp, to apply to concentration camps still in existence in late 1944 and 1945. This, in turn, has provided the legal foundation for the recent cases against Furchner and Schuetz.

Has this new spate of prosecutions really fulfilled its promise? On the one hand, the prosecution of elderly Nazi perpetrators (who are at least in their nineties nowadays) reinforces the tenet that severe culpability does not diminish with the passage of time. Nowhere else is this being done. Perhaps this is not surprising, as there probably remain hundreds of indictable people in Germany, in categories enabling criminal prosecution under the new precedents that facilitate liability for accessory to murder. On the other hand, proceedings have often been protracted, unreasonable for aged defendants who have invariably died (or were considered unfit at some point) before the trial has ended or any sentence could be implemented. Even when guilt has been clearly established and culpability forthrightly declared, actual sentencing is slight, with few of imprisonment. A slow appeals procedure exacerbates this problem, which, if not completed, may put in question a conviction.

With identity protection becoming so exploited and adhered to in these cases, the danger is that, despite the intention of the prosecutions to underscore the undiminished culpability for Nazi crimes, German law as carried out constructs a kind of virtual reality, with no real punishment and no real defendant at all.  It is a sort of theoretical, abstract application of law focused upon history, with trials and convictions of invisible and unseen defendants who are spirited back to their old-age homes.  It is a blip of activity in twilight days and then they continue their lives undisturbed, as if nothing transpired.

If they follow this phenomenon of virtual-reality proceedings, the hope of more cases will be thwarted and the good intentions of the new spate of prosecutions undermined by this inappropriate procedure of identity protection.

Surely, the providing or otherwise of the defendant’s full name and current photo cannot be at the option of the defendant, there must be proper acceptable guidelines and norms. An entirely different approach is required: Disclosure should be the rule in these cases, not concealment of identity. Only upon a reasoned petition by the defendant asking for identity protection should such be considered in rare cases.

The insistence on identity protection in this way, as in the cases of Dey, Furchner and Schuetz, seeks to demonstrate a denial of culpability and it is essentially an illegitimate act. Cases should be conducted solely by the normative procedure of denying the charges and presenting a defense. Surely, public interest requires that the name and current photo of such a defendant be available from the filing of an indictment and that the defendant be precluded from concealing his identity.

In proceedings involving war crimes or crimes against humanity identity protection is misplaced. In all the famous Nazi trials of the past – to some extent also in Germany – the identity of defendants was not concealed. It would not have been contemplated in the Eichmann trial, which had wide media coverage showing the defendant in a glass booth, or in Israel’s Demjanjuk case and the practice internationally in regards to war crimes trials has always been to provide full identity disclosure. Public interest requires this and it is the norm as can be seen in the practices and procedures of the International Criminal Court (ICC). Yet, currently in Germany, regardless of the substance of the charges, identity protection in these cases has become the routine, which is systematically exploited and considered acceptable.

From the time of filing charges of this kind, current photos of Dey, Furchner and Schuetz with their full names should have been made available. This would not have prejudiced their defense claims nor the presumption of innocence. Respect for the substance of the proceedings and the victims require this. Compliance with these defendants’ wishes to evade exposure and culpability is based on a misguided concept of privacy rights. The severity of the indictment and the culpability of the defendant are down-played by this concealment of identity.

The dreadful past and the faces of those complicit in the murderous acts of the Nazi regime need to be seen. Nowadays, we see elderly people giving testimony, describing their sufferings at these terrible sites that stain humankind, but we also need to see those who played a role in this evil killing apparatus. This is what one would expect of German law and society, and therein lies the meaning of finding a defendant accountable for the crimes ascribed to him. Behind this inappropriate identity protection there lurks legal, moral and conceptual faults in a Germany that claims to have honestly confronted its past.

The prospect of further trials with insubstantial sentences and virtual, unseen defendants is unsettling. What these cases set out to achieve is being undermined. For Nazi-related crimes, legal policy and balanced values require meaningful sentencing and the transparency of a glass booth, not hidden identities and concealed faces.

These faces are concealed because they are the faces of all the ordinary millions of Germans who unreservedly supported the bestial Nazi regime and without whom the efficient running of the genocidal, killing machine would not have been feasible. In the faces of people being charged with accessory to murder, millions of Germans living today can see their own grandparents – and the broad culpability of such individuals is that which German society has yet to accept and find it difficult to face.

Dr. Efraim Zuroff is the chief Nazi-hunter of the Simon Wiesenthal Center and the director of the Center’s Israel Office and Eastern European Affairs. A Holocaust historian, he is the author of four books, translated into 15 languages. His most recent volume, with Ruta Vanagaite, is Our People; Discovering Lithuania’s Hidden Holocaust (Rowman & Littlefield, 2020).

David Schonberg has written on topics of law, and works as an attorney in Jerusalem.