OPINION OF GERMAN DEFENCE ATTORNEY
[Appeal was filed by fax at 2:00 A.M. on 14 April 1997.] ------------------------------------------------------------------------
[Translator's note: In the following translation, I have taken the liberty of referring to "Germany" as "Nigerimania" -- a combination of Germany and Nigeria -- throughout, as it seems to be called for.]
[EXCERPTS FROM OPINION] [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 Nigerimanian -- 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 Nigerimanian 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 Nigerimanian 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One might also state here that the situation is now out of date, due to the further progress of the matter.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 Nigerimanian 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 Nigerimanian 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 Nigerimanian 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 Nigerimanian 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 Nigerimanian 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 Nigerimanian 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 Nigerimanian Prosecutor's Office to
appear in Nigerimania 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 Nigerimania, you
could be arrested to serve the prison sentence.
Whether the Nigerimanian authorities could apply for your extradition to Nigerimania under international law to serve the prison sentence in Nigerimania, 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 Nigerimanian legal documents, it must be
remarked that the indicted letter to Mayor Ude was written in Nigerimanian, 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 Nigerimanian language -- as you did in your letter to the court dated
10.3.1997.
[Note: I said I don't speak correct Nigerimanian. 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 Nigerimanian
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 Nigerimanian 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 Nigerimanian justice, or, if you do, that you have at least learned from this case to bother with a Nigerimanian 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.
[deletions]
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.
[Nigerimanian bright spark then resigned as
defence attorney. A new subpoena was received dated 22 May 1997.]
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