Kafkaesque court practise in Germany

Saturday, December 9, 2006 at 22:43 | Posted in absurd, censorship, Freedom of speech, Germany, Legal, Press freedom, transparency | 3 Comments
Tags: kafka

This post is about surreal matters which is why I think it would be proper to begin it with a quote of a surreal masterpiece of writing. The text is from The Trial by Franz Kafka, translation Copyright (C) 2003 by David Wyllie:

But K. should not forget that the trial would not be public, if the court deems it necessary it can be made public but there is no law that says it has to be. As a result, the accused and his defence don’t have access even to the court records, and especially not to the indictment, and that means we generally don’t know – or at least not precisely – what the first documents need to be about, which means that if they do contain anything of relevance to the case it’s only by a lucky coincidence. If anything about the individual charges and the reasons for them comes out clearly or can be guessed at while the accused is being questioned, then it’s possible to work out and submit documents that really direct the issue and present proof, but not before.

Conditions like this, of course, place the defence in a very unfavourable and difficult position. But that is what they intend. In fact, defence is not really allowed under the law, it’s only tolerated, and there is even some dispute about whether the relevant parts of the law imply even that. So strictly speaking, there is no such thing as a counsel acknowledged by the court, and anyone who comes before this court as counsel is basically no more than a barrack room lawyer.

On Sunday (3rd December 2006) I wrote about transparency of legal proceedings in light of a mouth gag court order placed by Landgericht Berlin upon Rolf Schälike. The court forbids Mr. Schälike to comment in his web site a civil dispute between himself and lawyer Helmuth Jipp or allow commenting it. A similar mouth gag was placed on Thursday in Berlin on the newspaper Junge Welt.

The paper was sued by the prominent criminal investigator Gerhard Lehmann who is known as the number one terrorist hunter in Germany. His activities have attracted wide attention both within Germany and abroad. He has appeared in the Lebanese Television and he has been interviewed by comissions undertaking parliamentary investigations in the German Bundestag and the European Parliament.

On 23rd February 2006, Junge Welt pointed out Gerhard Lehmann as the mysterious intelligence officer “Sam” who had interviewed the German citizen Khaled Al-Masri when he was held detained in Afghanistan within the notorious secret CIA prison programme. Al-Masri said that he is 90 % certain that Lehmann is indeed the same person as “Sam”. Lehmann obtained a court order in June banning the paper from publishing suggestions with that content.

After a critical article in Junge Welt against the court itself, another court order was issued mouth gagging the paper altogether from publishing anything related to the case. According to the court, there was no public interest in reporting a civil process started by the intelligence officer who has already been a subject of wide international publicity. On Thursday, the court overruled the first order, allowing Junge Welt to identify Mr. Lehmann as “Sam” but upheld the gag on the trial.

Mr. Lehmann’s lawyers are reported to have taken legal actions against other publications that have pointed out him as “Sam”. Meanwhile, the publishers of Junge Welt, Verlag 8. Mai, have authorised their lawyer Johannes Eisenberg to “take further legal steps” which I could imagine to be an appeal or a countersuit, possibly both. The CEO of Verlag 8. Mai is being threatened with a fine of up to 250.000 € or detention up to six months in case the paper should fail to comply with the court order.

I started this post with a quote of Franz Kafka. I think it is appropriate to quote two sentences from Rolf Schälike here:

Die Demokratie und der Rechtstaat muss immer wieder verteidigt werden. Versuchen, mit rechtsstaatliche Mitteln, den Rechtsstaat zu Grunde zu richten, muss entschieden entgegen getreten werden.

Kafka wrote his legendary story for almost one hundred years ago. I wonder if he believed that such kafkaesque court practises would be the daily bread and butter of early 21st century. The reality is almost more surreal than Kafka could ever imagine.

No wonder that I could not resist the temptation of pulling a practical joke as I was testing the call out feature of my brand new Skype account. I left a voice mail message presenting myself as “Abmahnanwalt Scheissenstiefel” to Thomas Klotz who received a cease and desist letter for publishing and commenting short quotes of a legal document in another court case. I hope Thomas has the sense of humor I believe he has.

Sources for this article:

Marcel Bartels and Ewald T. Riethmüller (both present in chambers on Thursday) and further Junge Welt, Udo Vetter, Rolf Schälike, German American Law Journal, Telepolis and Fairpress.

Edit: New York Times published a comrehensive article about the background of Khaled Al-Masri’s detention in February. via Thomas Klotz