Appeals mean Gröning Holocaust trial ′may have been for nothing′ | Germany | News and in-depth reporting from Berlin and beyond | DW | 22.07.2015

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Appeals mean Gröning Holocaust trial 'may have been for nothing'

Oskar Gröning's conviction has still not been upheld, as appeals from both plaintiffs and defense wait to be heard. Prosecutors fear that the ruling will be left hanging forever, diminishing its historical importance.

Former SS officer Oskar Gröning was convicted a week ago, but the legal process is a long way from over. Both the defense and a handful of co-plaintiffs have now appealed the verdict of the Lüneburg court, which saw the "accountant of Auschwitz" sentenced to four years in prison on 300,000 counts of accessory to murder.

The co-plaintiffs, all based in the United States, think the sentence is too short, and have instructed their Berlin-based lawyer Andreas Schulz to appeal to Germany's Federal Court of Justice (BGH) to change Gröning's conviction from accessory to murder to actual murder. "The legal consequence of a murder conviction would be a life sentence," Schulz told "Der Spiegel" news magazine last Thursday.

That appeal has been derided in the media as "nonsense" by various legal commentators. Gröning spent two years at Auschwitz counting and sorting cash taken from the Jews arriving at the camp. He also stood guard on the ramp as the new arrivals were ordered from the trains. Without proof of any specific crimes, jurists said, there is no way that German law can uphold a murder conviction. "During the trial, I didn't hear a single piece of evidence that could support a murder conviction," said lawyer Thomas Walther.

Deutschland Cornelius Nestler in Lüneburg

Cornelius Nestler considers his colleague's appeal 'nonsense'

Walther and Cornelius Nestler, the two attorneys who represented over 50 Holocaust survivors in the trial, are likely to be particularly irritated since, as far as they are concerned, the appeal is not only futile but puts at risk the result of the trial itself. For one thing, if the 94-year-old Gröning dies before the appeal has been ruled on, his conviction will not stand, and secondly, the appeal opens the risk that the BGH will find a technicality on which to overturn the decision.

Missed opportunity

Ingo Müller, author of the seminal legal history book "Hitler's Justice," which documented the failure of Germany's post-war judiciary to punish Nazi crimes, was also incensed at the co-plaintiffs' appeal.

"I was very annoyed, because this was the chance to make a conviction legally binding," he told DW. "The judge had made a clear statement: Auschwitz was a murder machine. Auschwitz was murder, therefore anyone who helped at Auschwitz was an accessory."

A glance at the post-war history of the German judiciary illustrates how important that passage of the judge's ruling was. In 1969, the BGH upheld the acquittal of Willi Schatz, a former SS member and dentist at Auschwitz, and ruled that simply working at Auschwitz was not an indictable offense.

"[The Gröning verdict] was the last chance to overturn that, and to finally have a German court ruling that says: Auschwitz itself was a crime," said Müller. "The appeal against the verdict is preventing that verdict from being legally binding. If not for that, the German judiciary would have rehabilitated itself a tiny bit. All the positive effects of this conviction have disappeared, because presumably now it won't ever become legally binding."

Deutschland Oskar Gröning Prozess in Lüneburg Nebenklägerinnen

Most of the co-plaintiffs welcomed the verdict

A few days after the plaintiffs' appeal, Gröning's lawyer, Hans Holtermann, submitted an appeal of his own on the grounds that Gröning's cooperation in previous investigations of Nazi crimes should have been taken into account in his sentencing. Holtermann also said he believes that the long delay in prosecuting Gröning - he was initially investigated by state prosecutors in the late 1970s - should have mitigated his punishment.

More Holocaust trials?

Müller is pessimistic but, strictly speaking, there is still a chance of more Holocaust trials. Germany has a dedicated authority - called the Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes, set up in 1958 in Ludwigsburg - that is still diligently investigating possible Nazi perpetrators.

That office's work was given a boost in 2011 with the conviction of John Demjanjuk, a former guard at the Sobibor death camp in Poland. Even though the Demjanjuk conviction is not legally binding because he died before his appeal could be heard, the court's decision effectively set a precedent that any low-level concentration camp guard could theoretically face prosecution - not for committing a particular crime but for taking part in the routine of the Holocaust.

In response, the Ludwigsburg office drew up a list of 50 people who had worked at major concentration camps and who were still fit to stand trial, one of whom was Gröning. That number, state prosecutor and spokesman Thomas Will told DW, has now dwindled to eight open investigations, three of which have resulted in indictments. These are currently in the hands of state prosecutors in Dortmund, Frankfurt, and Schwerin - and could therefore still go to trial.

The names of the suspects in these cases are not public, though the Frankfurt case, announced last week, is that of a former Auschwitz guard and SS member who the "Bild" newspaper named as "Ernst T." According to the prosecutor's statement, the man is accused of taking part in the "organizational processing" of three concentration camp transport trains containing a total of 1,870 people, of which "at least 1,075 people were ... killed immediately on arrival in the gas chambers at Auschwitz."

One absurd detail about Ernst T.'s case brings the slowness with which the German judiciary has dealt with the country's Nazi past into sharp relief: as he was 19 when he volunteered for the SS, the 92-year-old Ernst T. will have to be tried in a court for young offenders.

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