Mattinger took a deep breath and turned to Leinen. ‘Apart from that, it is also one of the duties of an accessory prosecution to protect the victim. And the victim in the case being tried here is not the defendant, he is still Hans Meyer—’
‘I don’t understand what you are trying to say,’ the presiding judge interrupted him.
Mattinger held a sheaf of newspapers up in the air. He raised his voice. ‘Counsel for the defence has succeeded in presenting Hans Meyer as a cold-blooded murderer. Every newspaper is writing about the dreadful things he did, I’m sure you’ve read the reports yourselves.’ He threw the papers down on the table in front of him. ‘So now we must hear evidence from an expert witness who can tell us whether Hans Meyer really was a murderer. Each strike must be followed by a counterstrike – that’s a major tenet of the criminal code. In other words: we can’t keep the court bogged down for months with evidence that the shootings really happened, only to discover in the end that they were justified.’
Mattinger took off his reading glasses, leaned on the table and looked at the presiding judge. ‘I would therefore ask the court to let me call the director of the Federal Archive in Ludwigsburg as an expert witness. I have asked Dr Schwan to be here today, and she is waiting outside the courtroom.’
‘This is most unusual, Herr Mattinger,’ said the presiding judge, shaking her head. ‘You have not made an application to produce this evidence, nor has the court called Dr Schwan.’
‘I’m aware of that,’ said Mattinger. ‘And I ask for the court’s forbearance, but in the interests of the accessory prosecution I had to act quickly.’
The presiding judge looked at the judges sitting to the right and left of her. They both nodded. ‘Well, we have not called any other witnesses to give evidence today. If the prosecution and the defence have no objections either, then I will admit Dr Schwan as an expert witness. But I will tell you to your face, Herr Mattinger, this is the only time I will go along with such a performance.’
‘Thank you very much,’ said Mattinger, sitting down.
The presiding judge asked a police officer to call the expert witness. She entered the courtroom and went over to the witness stand. Hair combed back, not much make-up, an intelligent face. She opened her briefcase and put about ten pale grey document folders on the table in front of her. Then she looked at the presiding judge and smiled briefly.
‘Would you please tell us your name and your age in years?’ asked the presiding judge.
‘My name is Dr Sybille Schwan, and I am thirty-nine years old.’
‘And your profession?’
‘I am a historian and a lawyer, and at present I am director of the Federal Archive in Ludwigsburg.’
‘Are you related to the defendant in any way by blood or by marriage?’
‘No.’
‘Dr Schwan, the law stipulates that I must advise you of the following points. You must make your report without prejudice, to the best of your knowledge and according to your conscience. You may be asked to swear to that on oath. Perjury carries a penalty of at least a year in prison.’ The presiding judge turned to Mattinger. ‘Herr Mattinger, you have asked Dr Schwan to attend this court. The court does not know on what subject you want to question the witness, so I authorize you to ask questions directly. Very well, please begin.’ The presiding judge leaned back.
‘Thank you very much.’ Mattinger looked over the top of his reading glasses at the expert witness. ‘Dr Schwan, can you tell us something about your education and training?’
‘I studied law and medieval history at the University of Bonn. I graduated in both subjects and obtained a doctorate in history. After that I did two years of in-service training at the College of Archivists in Marburg. For the last eighteen months I have been director of the branch office of the Federal Archive in Ludwigsburg.’
‘What archive exactly is that?’
‘In 1958 the Central Office of Justice Departments of the Federal States was founded to cast light on crimes committed by the National Socialists. There was office space available in Ludwigsburg, and so the Central Office was set up there. Judges and public prosecutors from all the Federal States of Germany were sent there. As far as possible they were to assemble all the documentation still extant on the crimes of the Nazis, carry out preliminary investigations, and then pass proceedings on to the public prosecution offices of the states concerned. On 1 January 2000 a branch office of the Federal Archive was set up in the Ludwigsburg building. We manage documentation from the Central Office. There are about eight hundred to a thousand metres of archival material in the branch office.’
‘So as director of the archive you are professionally concerned with the shootings of hostages and partisans in the Third Reich.’
‘Yes.’
‘Can you explain to the court, in plain language, what the shooting of partisans actually entailed?’
‘Both the Germans and the Allies shot civilians during the Second World War. These shootings were viewed as reprisals for attacks on their own fighting forces, and a means of forcing the population not to try any more attacks.’
‘I understand. Did that kind of thing happen often?’
‘Yes, very often. For instance, thirty thousand people were shot in France alone. In all, the figures run into hundreds of thousands.’
‘And did these shootings lead to criminal proceedings after the fall of National Socialism?’
‘Yes, in many countries they did. For instance in France, Norway, the Netherlands, Denmark, Austria, before the British military court in Italy, and before the American military court at Nuremberg in immediate post-war Germany. Later, of course, there were also trials in the Federal Republic.’
‘With what result?’
‘It varied. Some defendants were acquitted, some were found guilty.’
‘How did the American military court in Nuremberg see it, for instance?’
‘In what was known as the Hostages Trial, a number of German generals were accused of responsibility for the killing of hundreds of thousands of innocent civilians in Greece, Albania and Yugoslavia. The prosecution called for a guilty verdict.’
‘And how did the court decide?’
‘The court described the killing as a “barbaric relic from the distant past”. But…’
‘But what?’ asked Mattinger.
‘But in extreme cases, the court ruled, it had been legitimate.’
‘Legitimate? The killing of innocent civilians legitimate? In what circumstances could that be so?’ asked Mattinger.
‘In a whole range of circumstances. For instance, it was never legitimate to kill women and children. The killing itself must not be cruel. No one must be tortured before execution. Serious attempts must always be made to find and capture the real perpetrators of the attacks.’
‘Were there other stipulations?’
‘Yes. The facts of reprisal shootings must be made publicly known afterwards. That was the only way to induce the rest of the population to desist from further attacks. A controversial point was deciding in what ratio a shooting could be justified.’
‘What do you mean?’ asked Mattinger.
‘Did you shoot one civilian in reprisal for one dead soldier? Or ten? Or a thousand?’ said the expert witness.
‘And how was that question answered?’
‘Again, in very different ways. There is no hard-and-fast ruling in international law. In 1941 Hitler demanded a ratio of one hundred to be killed in reprisal for one German soldier – that would certainly never have been allowed under international law.’