A German judge is being accused of perverting the course of justice for denying two Holocaust survivors the right to be heard in the trial of Hubert Zafke, an SS medic who served at the Auschwitz concentration camp in 1944.
A spokeswoman for the court in the northeastern city of Neubrandenburg confirmed to DW on Monday it had been informed of the charge against Judge Klaus Kabisch, but refused to comment further. If convicted, the judge could potentially face a minimum one-year jail sentence.
The accusation centers on the participation in the trial of Walter and William Plywaski, aged 87 and 86, who were brought to Auschwitz from Lodz, Poland, along with their parents on August 15, 1944. While they and their father survived, their mother was murdered in a gas chamber on the same day.
The brothers, now living in Boulder in the US state of Colorado, are "very, very disappointed by the court," according to Thomas Walther, who is representing Walter Plywaski. "The fact that a German court is using all its power and energy to try and stop this tiny piece of justice - that's very, very difficult for him to understand," he told DW.
As a result, Walther said, his client had a right to question whether the district court was impartial. "That's why I have today once again filed a motion rejecting this court on the grounds of suspected bias," he added.
Walther, who also represented Holocaust survivors at the trial of Oskar Gröning in Lüneburg in 2015, said he had never experienced anything like the two-year wrangling over the 96-year-old Hubert Zafke, who is being charged with 3,681 cases of accessory to murder. Zafke worked as a medic for the SS at Auschwitz from August 15 to September 14, 1944 (also the period when Anne Frank and her family were transported to Auschwitz).
The Neubrandenburg court has so far denied the Plywaski brothers' right to be co-plaintiffs at the trial, on the grounds that they were not on one of the 14 Auschwitz trains listed on the charge sheet.
But this, according to Walther, is immaterial. "The period of time is the decisive point," he said. "It's not as if only the people who were on those 14 trains count as victims. If someone was murdered in this time period, the children are entitled to be co-plaintiffs."
This was also the view taken by a higher regional court in the state of Mecklenburg-Western Pomerania, which three times ordered Kabisch to accept the Plywaski brothers as co-plaintiffs - and each time he opposed the decision, delaying proceedings.
This makes no sense, according to Walther, not least because he himself was present as a representative of Walter Plywaski at the trial in February 2016, after the higher court had ordered the district to accept the Plywaskis as co-plaintiffs. "No one said anything - no one said, 'Mr. Walther, you have to leave the chamber, you have no right to be here,'" he said. "The court treated us as representatives of the co-plaintiffs."
For months, Walther said, the Neubrandenburg court kept to the higher regional court's rulings, but continuously delayed his routine requests - such as granting him access to relevant files, or translating the charge sheet into English so that the plaintiffs could read it.
Testimony from Auschwitz
The Neubrandenburg court also denied Walther the costs to travel to the US to speak to his client in person. "That has never been a problem before - in other Holocaust trials in Lüneburg or in Detmold," he said.
When the same petition was made to the higher regional court, the costs were granted right away, and Walther has since traveled to the US to interview the brothers. "Walter Plywaski was 10 years old when the Germans came to Lodz," he said. "When he was liberated, near Dachau, he was 15."
While William Plywaski is unable to talk about that time, Walther says that his client has much to tell of his five childhood years under the control of Nazis - for instance of the ghetto in Lodz, where he saw "old people, children and women collapse in the street and die of starvation." "Of course he can remember a lot - about being in the machinery, part of the factory of death," said Walther. "Zafke was on one side of it, and the 14-year-old Plywaski was on the other."
Zafke's defense defends judge
An open letter to the Neubrandenburg court, attached to an online petition, has now been released, calling on Zafke to be "promptly prosecuted." "It is obviously not clear to you that international public opinion is getting the impression that you consider this trial to be so beyond the pale, for political or other reasons, that you are determined to prevent or sabotage it," a group of Holocaust researchers and political observers told the court. "You fail to recognize the explosive nature of the actions and thus perpetuate the decades-long practice of non-prosecution of Nazi perpetrators."
But Zafke's attorney, Peter-Michael Diestel, released a bullish statement of his own on Monday, defending the court's right to interpret the law as it sees fit and dismissing Walther's "media-friendly" criminal charges against Kabisch as a "provincial farce."
"You exhaust all the legal options, but if you lose that's the way it is," he told DW. "You can't then file criminal charges against the judge. We're seeing a show trial that is failing because of extremely simple procedural problems. There's no special law for Nazi trials. It's a very normal procedure, and it was extremely badly prepared by the prosecution."
It was only with the conviction of Sobibor guard John Demjanjuk in Munich in 2011 that working at a Nazi death camp was deemed sufficient for an accessory to murder conviction. Since then, German prosecutors have been searching for other former Auschwitz guards able to stand trial - so that decades of failure by the German judiciary might be corrected.