[Note: The Appeal was filed by fax at 2:00 A.M. on 14 April 1997.]
[name of lawyer withheld]
3 June 1997
As agreed, I have examined the files in your case and am able to report my general opinion as follows:
On 16.8.1996, you sent a letter written in German — whether you were actually the author may remain open — to the Mayor of Munich (among others?), enclosed with the brochure "Not Guilty at Nuremberg". From the file, it appears that the Mayor of Munich, Christian Ude, by letter dated 20.8.1996, forwarded both your letter and the brochure to the State Prosecutor, with the request "to examine both for their criminal content and, if applicable, to take suitable steps".
It doesn't take much intelligence to see that both, i.e., your letter and the brochure, are in violation of present German law (it is obvious that I need not undertake to evaluate the contents personally). The responsible State Prosecutor, in any case, applied for a corresponding Order of Punishment (in practice, this is an indictment which, if no objection is filed, then becomes the equivalent of a legally effective conviction. Orders of Punishment are used chiefly in cases of minor importance). This Order of Punishment was duly delivered to you in Belgium, accompanied by the proper information as to legal remedies. By letter of 7.1.1997, you filed an objection within the proper period, and further demanded the appointment of a court-appointed lawyer. The court rejected this in a decision dated 28.1.1997. It appears doubtful to me whether this rejection was correct; in any case, you are a foreigner, and it is doubtful whether such a foreigner possesses sufficient knowledge of German law to be able to defend himself properly. The question of whether the above mentioned decision was technically correct may, however, remain open. For your part, at any rate, you made no use of the opportunity to file a complaint against that decision [!]. One might also state here that the situation is now out of date, due to the further progress of the matter.
Unfortunately, I cannot spare you the reproach that, even after learning of this decision, you did not bother to consult a German lawyer — which was obviously still possible later, in the form of my intervention. If this had occurred, the further progress of the matter would have been as follows: the defence lawyer would have informed the Court that he was representing you, and then applied and received permission to look at the file. The subpoena to the Main Trial on the grounds of your objections — which you filed within the required period! — would have been sent to your attorney as well as to yourself. This would therefore have excluded the possibility of what has, in fact, unfortunately occurred due to inaction on your part: namely, that you missed the court date, without an appearance by yourself or your defence attorney, resulting in the rejection of your objections (which must follow under German law).
In a letter dated 10.3.1997, you nevertheless (interestingly, in English) confirmed the contents of the subpoena, and disputed the jurisdiction of the judge. At this moment, at the very latest, you should have attempted to engage a German lawyer in the case (this was obviously still possible later, otherwise the matter would not have landed with me). On 25.3.1997, however, neither you nor your attorney was present; the Court was therefore required by German law to reject your objection — which was filed within the required period! — by corresponding judgement under sections 412, 329 of the Code of Criminal Procedure.
This decision was delivered to you on 7.4.1997. By fax on 13 or 14.4.1997, you filed for appeal and/or review against the judgement — within the required period. According to German law, you also had the possibility, within one week of delivery of the judgment, of alleging that you were unable to appear in court on 25.3.1997 through no fault of your own (for example, illness, car trouble, etc.), i.e., application for "restoration of the previous situation". You didn't do this either. No grounds for any such claim are to be inferred from your letter to the Court, nor your correspondence with me, nor the fax from Mr. Zuendel, dated 13.4.1997, which lies before me.
On 28.5.1997, I received a subpoena for an Appeal Trial on Friday, 1.8.1997, at 12:30 A.M. in Munich (see enclosure). The question arises of whether it makes any sense for us to take advantage of this court date. This must, in my view, be answered in the negative. In particular, the Appeal Trial will not examine the matter itself — that is, whether your written statements actually violate the applicable provisions of law — but rather, only whether the Court, in session on 25.3.1997, rightfully rejected your objections. Unfortunately, this must be answered in the affirmative. I therefore see no sense in taking advantage of the appeal court date, thus producing further costs which could be avoided. Rather, I recommend that you withdraw your appeal.
The result of the above would be that the Order of Punishment, which has already been issued against you, would become effective in law (and would therefore be equivalent to a conviction). This would mean that you would have a prior conviction under German law for the acts for which you stand accused, and would have to pay the fine mentioned in the Order of Punishment, in the total amount of 6,000 DM [plus costs]. The normal procedure in the matter is that, some months after legal entry into effect, you would receive a demand for payment from the State Prosecutor of Munich.
Let us assume that you are not prepared to pay the fine, and furthermore, that the fine cannot be forcibly collected in Belgium. Then, at best, a demand would be issued to you in Belgium by the German Prosecutor's Office to appear in Germany to serve the alternative period of imprisonment (150 daily monetary units, i.e., 150 days imprisonment). It is not known to me whether you would be able to serve the time in a Belgian prison.
[Note: I would.]
Should you disobey the subpoena and fail to appear for imprisonment, a warrant would be issued for your arrest, which would mean that if your identity documents were to be examined upon crossing the border into Germany, you could be arrested to serve the prison sentence. Whether the German authorities could apply for your extradition to Germany under international law to serve the prison sentence in Germany, I don't know. You could, of course, avoid this risk entirely by paying the fine, which would naturally be possible in instalments (upon sufficient showing of need for this purpose).
As you may gather from the above remarks, the problem is not whether you filed an objection against the judgment of 25.3.1997 with the required period — you did so. The problem is rather, whether such an appeal could examine the grounds for the Order of Punishment itself. This must be answered in the negative, since you didn't appear for trial. If you should argue that you lacked a sufficient understanding of the German legal documents, it must be remarked that the indicted letter to Mayor Ude was written in German, as well as your lengthy letter to Judge Zeilinger dated 7.1.1997 (I assume that you didn't write it). In view of the above, it appears remarkable that you should attribute any misunderstandings or failure to appear to defective knowledge of the German language — as you did in your letter to the court dated 10.3.1997.
[Note: I said I don't speak correct German. That is the truth.]
For purposes of completeness, I must furthermore state that, in concluding your letter to the court dated 7.1.1997, you mention the question of the statute of limitations — if this has any application at all [Note: so does it, or doesn't it?], this would apply only to the book, but not to the letter to Mayor Ude. You may however "console" yourself with the thought that I would have estimated your chances of acquittal — even if you had appeared on the court date on 25.3.1997, i.e., even if there had been no negligence on your part — as extremely slim (you must, of course, be aware of German practice in similar cases).
[Note: I am. That's why I didn't appear, and that's why I didn't bother with a lawyer.]
As a result, I can only recommend that you withdraw the appeal in order to save further costs. In the event that you wish to become acquainted with German justice personally, and wish to appear in Munich on 1.8.1997, I will be glad to appear as well.
I am sorry to have nothing further to report to you, and hope that you have no further contacts with German justice, or, if you do, that you have at least learned from this case to bother with a German lawyer within the required period.
[Note: What for?]
Please let me have your instructions as to whether you wish to withdraw the appeal or not. If you decide to withdraw, you should, of course, not do so a few days before the court date, but rather, within the required period.
Postscript: As you may see from the enclosure, which just reached me by fax, the court has ordered your personal appearance on 1.8.1997.
Enclosures: subpoena, etc.
[German bright spark then resigned as defence attorney. A new subpoena was received dated 22 May 1997.]
Additional information about this document
|Author(s):||Carlos Whitlock Porter|
|Title:||The German Court vs. Carlos Porter, Opinion of German Defence Attorney|
|First posted on CODOH:||May 30, 1998, 7 p.m.|