Re: Zündel SHOW Trial, Mannheim 2005
<a href="http://www.zundelsite.org/zundel_persecuted/nov15-05-law-student.html">Law Student in England: "Zundel Trial In Germany -- A Farce!"</a>
November 15, 2005
1 It seems relevant to start by mentioning two fundamental maxims of justice: Nemo iudex in causa sua ('no man should be judge in his own cause') & audi alteram partem ('hear the other side', ie that both sides should be given a fair hearing). It seems to me that the judge is biased. He is not willing to hear what the defence has to say. Instead he wants to 'shut them up'. And he clearly considers the Prosecution's cause as his own. He thus has a 'stake' in the trial, an interest in Ernst Zundel being found guilty.
He is therefore inherently biased.
By Art 6 of the European Convention on Human Rights & Fundamental Freedoms every person has a right to a fair trial. The Federal Republic of Germany is a signatory to the Convention and is therefore obliged to abide by it.
Art 6 states that:
ARTICLE 6 1 In the determination of [...] any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3 Everyone charged with a criminal offence has the following minimum rights: [...] ? (c) to defend himself in person or through legal assistance of his own choosing [...]; ? (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
I have underlined the relevant phrases. The right to a fair trial in section 1 of Art 6 is an 'absolute right', meaning that no matter what the circumstances everyone has a right to a fair trial (whereas s. 3 is a 'relative right', meaning that it may be limited if it be legitimate to do so in the circumstances). It has been stated above that the judge in the Zundel case is biased in the sense that the court was not an 'independent and impartial tribunal'. It is further submitted that the result of this would be that Zundel would not get a 'fair and public hearing' within Art 6(1). The court is therefore in breach of its obligations under Art 6(1). I suspect that Mr. Zundel's legal team would appeal to the European Court of Human Rights in Strasburg if all else fails. Moreover, it is noted that by Art 6(3)(c) Herr Zundel has a right to choose his own legal team. This is not within the jurisdiction of the German court. This is also true in relation to leading counsel's assistant. The court is therefore ultra vires (beyond its powers) and its ruling on the matter is null and void. I suspect that also in this regard Ernst Zundel's legal team will seek to appeal to the higher courts, and, failing this, to the Court in Strasburg.
4 On a different note, there is a problem if Ernst Zundel's defence would be in breach of §130 of the Penal Code by defending their client to the best of their ability because advocates are obliged by their professional codes to defend their clients fearlessly and to the best of their ability. More importantly, if certain kinds of evidence cannot be admitted in court due to a general prohibition against displaying such material in public, how can the accused have a fair trial?
5 Judges are not, it is submitted, competent to rule on what is historical fact. If the judge in question wished to establish an historical fact (whatever that is) the proper way to go about it, in my opinion, would have been to call expert evidence. I say in my opinion, but I do think that any person with sound judgment would adopt the same opinion on this matter. This attitude of the judge also reveals his prejudice against the defence.
6 I can think of no good reason why Ernst Zundel should be kept in custody while an important question of law is being decided in the Constitutional Court. The case will surely take a very long time, perhaps more than a year. The court would need to have very good reasons to justify keeping an accused person (cf. Art 6(2), above: everyone is innocent until proven guilty) in custody for a substantial length of time. For example, the court would have to hear evidence that Mr. Zundel is very likely to flee Germany. Not just that he might, but that he is very likely to. However, it seems to me that the Regional Court decided the matter simply on a whim. This, again, is contrary to the Convention (see Art 5).
7 In conclusion, I would say that the trial of Ernst Zundel is an absolute outrage. Whether one sympathizes with his views or not, it is most unsatisfactory that a person is denied his right to a fair trial because of his beliefs. If this is truly the state of affairs in Germany, then hypocrisy and, indeed, tyranny must have gained the upper hand in that so-called democratic republic. I am absolutely outraged about this. Next time a German politician speaks of democracy and human rights, please ask him to ditch the rhetoric and, ahem, shove it up his a**.
Student of Law,
Three things are sacred to me: first Truth, and then, in its tracks, primordial prayer; Then virtue–nobility of soul which, in God walks on the path of beauty. Frithjof Schuon