‘No, it isn’t. Herr Mattinger asked his questions skilfully, so the court may have gained that impression. All I said was that investigations were discontinued. The reason for discontinuing them, however, was entirely different.’
‘Entirely different? Did the shooting maybe not take place?’
‘It did.’
‘Then Hans Meyer was not involved?’
‘Hans Meyer was in command.’
‘I don’t understand. Why were proceedings against him discontinued?’
‘It’s simple enough…’ She took her time over answering. Leinen knew that this question touched on her favourite subject. They had discussed it together for hours in Ludwigsburg. ‘The statute of limitations had come into force.’
There was restlessness in the courtroom.
‘“The statute of limitations”?’ repeated Leinen. ‘Then there was never any further investigation of Hans Meyer’s guilt or innocence?’
‘That’s right.’
‘So if I understand you correctly, my client told the public prosecutor’s office the name of the man who had his father shot. Fabrizio Collini did everything that the law of the land required him to do. He laid charges. He said what the evidence was. He trusted the authorities. And then, a year later, he gets a letter, a single sheet of paper saying that proceedings have been discontinued because what happened is now subject to a statute of limitations?’
‘Yes. It was subject to the statute of limitations because of a law that came into force on 1 October 1968.’
The journalists had taken their notepads out of their briefcases again and were scribbling busily.
Leinen was still feigning astonishment. ‘What? After all, 1968 was the year of the student riots. The country was in a state of emergency. The students held their parents’ generation responsible for the Third Reich. And in that of all years – 1968 – the Bundestag decided that such acts were cancelled out by the statute of limitations?’
Mattinger rose; he had pulled himself together again. ‘I object. What is this? A criminal trial or a history lecture? This matter has nothing to do with the proceedings of the court. Obviously the Bundestag of the time wanted such crimes to be subject to a statute of limitations. We are not trying the legislators, we are trying the defendant.’
‘On the contrary, Herr Mattinger, this matter has a great deal to do with the question of guilt,’ said Leinen. There was a steely edge to his voice. ‘It does not change the fact that Collini killed a man. But, as you said yourself, there can be a great difference between whether his act was arbitrary or whether it is understandable.’
The presiding judge was slowly turning her fountain pen in her hand. She looked first at Mattinger and then at Leinen. ‘I will allow the question,’ she said at last. ‘It affects the defendant’s motive, so it can have a deciding influence on the question of guilt.’ Mattinger sat down again; there was no point in complaining about her decision.
‘Can you ask that question again?’ said Dr Schwan.
‘Certainly. But let me phrase it a little differently,’ said Leinen. ‘Herr Mattinger said just now that in 1968 the Bundestag wanted Nazi crimes to be subject to a statute of limitations. I ask you, as a historian, is that so?’
‘No, it’s much more complicated than that.’
‘More complicated?’
‘There was heated debate in Germany in those years. All crimes from the time of the Third Reich had been subject to a statute of limitations since 1960. Except for murder. Murder cases were still to be prosecuted. Then, however, there was a catastrophe.’
‘What happened?’ Leinen knew the answer, of course, but he had to lead the expert witness through his cross-examination in such a way that everyone would understand what it was all about.
‘On 1 October 1968 an inconspicuous little law was passed. It was called the Introductory Act to Administrative Offences. Indeed, the law seemed so unimportant that it wasn’t even debated in the Bundestag. None of the parliamentary deputies there realized what it meant. No one saw that it was going to change history.’
‘You’ll have to explain it to us in a little more detail.’
‘The whole thing began with a man called Dr Eduard Dreher. During the Third Reich, Dreher was Head Public Prosecutor at Innsbruck Special Court. We don’t know much about him at this time, but what we do know is bad enough. For instance, he called for the death sentence to be passed on a man who had stolen some food. He also wanted it for a woman who had bought a few clothing coupons illegally. Her sentence of thirteen years in prison wasn’t enough for Dreher; he had her taken to a Workers’ Educational Camp.’
‘“Workers’ Educational Camp”?’
‘Comparable to a concentration camp,’ said the expert witness. ‘After the capitulation, Dreher initially settled in the Federal Republic to practise law. But in 1951 he was co-opted into the Federal Ministry of Justice, and his career began to take off. Dreher became head of a section and director of the criminal law department of the ministry.’
‘Was Dreher’s past known?’
‘Yes.’
‘But all the same he was appointed?’ asked Leinen.
‘Yes.’
‘What happened to the law?’
‘First you have to know that in juridical terminology only the top Nazi leaders were murderers,’ said the expert witness. ‘All others were regarded as accessories to murder. There were only a few exceptions.’
‘So Hitler, Himmler, Heydrich and so forth were the murderers, the others merely rendered assistance?’
‘Yes. They were regarded as people who had only received and obeyed orders.’
‘But… but practically everyone in the Third Reich was only obeying orders,’ said Leinen.
‘Yes, that’s so. Every soldier who obeyed orders, according to this juridical definition, was only an accessory.’
‘Then,’ asked Leinen, ‘if a man in a ministry had organized the transport of Jews to a concentration camp, by that juridical definition he was not a murderer either?’
‘That’s right. According to the juridical definition, the people who organized such things from their desks were all just accessories. None of them counted as murderers in front of the courts.’
‘Apart from the fact that such a proposition strikes me as absurd – did this distinction affect criminal prosecutions?’
‘Not at first.’
‘But you spoke of a catastrophe,’ said Leinen.
‘That law devised by Dreher, the Introductory Act to Administrative Offences, changed the timing of the statute of limitations. The legal administration departments of the eleven Federal states, the Bundestag parliamentary deputies and the legal committees all failed to spot it. Only the press revealed the scandal. And once everyone was awake to it, it was too late. To put it in very simple terms, the law meant that certain accessories to murder were now sentenced as if they were accessories to manslaughter instead.’
‘Meaning that…?’
‘Meaning that all of a sudden what they had done was now beyond prosecution. Subject to the statute of limitations. The killers went free. Picture it: at the same time preparations were being made by the public prosecutor’s office in Berlin for major proceedings against the head office of Reich Security. When the Introductory Act to Administrative Offences was passed, the public prosecutors might as well pack up their briefs and go home. The officials who had organized the massacres in Poland and the Soviet Union, the men responsible for the deaths of millions of Jews, priests, communists and gypsies could no longer be called to account. Dreher’s law was nothing less than an amnesty. A cold-blooded amnesty for just about everyone.’
‘But why couldn’t the law simply be repealed?’
‘It’s a basic principle of a constitutional state founded on the rule of law that once a criminal offence is subject to a statute of limitations, that ruling can never be reversed.’