German Auschwitz trial judge dismissed for bias

Klaus Kabisch has made legal history by becoming the first German judge to be dismissed from an Auschwitz trial on the grounds of bias.

State prosecutors and attorneys for Holocaust survivors accuse Kabisch of deliberately delaying the trial against Hubert Zafke, a former medic at the Auschwitz concentration camp charged with 3,681 counts of accessory to murder.

Another judge, Henning Kolf, accepted the motion late last week and threw Kabisch and both of his co-judges off the trial, which has been running since February 2016 in the eastern city of Neubrandenburg.

The decision has caused some consternation. Die Welt newspaper commented that not only is such a step highly unusual: The fact that it should happen in one of Germany's last Holocaust trials makes it "even more shocking."

"First you have to say that a ruling finding bias in three judges is a very important step towards justice," said Thomas Walther, the attorney for two Holocaust survivors who were co-plaintiffs in the case. "Bias is always a sign of injustice, so this is a victory for the rule of law."

What now?

Roman Guski, of the political education organization Context - which co-founded a website specifically to follow Zafke's trial - welcomed the decision, but worried that it might mean the end of the case altogether.

"If it is all valid, then there's probably no other path than to suspend the trial completely," he told DW. "The courtroom will now get new personnel, who will have to familiarize themselves with the case. Our hopes that there will still be a trial are now relatively marginal."

Before a retrial, Zafke, who is now 96, would have to undergo a new medical test to assess his fitness to stand, which he is likely to fail, given that he failed such a test in early May.

At the time, defense attorney Peter-Michael Diestel told DW that his client had been unfit to stand trial from the beginning, and that three separate doctors' reports had vindicated his view - though one assessment by the prosecution found that Zafke was "partially fit." Diestel thinks it's a "judicial scandal" that his client was forced to stand trial at all.

"The court was dealing with several thousand counts of the murder of Jews - on the last trial day, my client was convinced that he was being charged for animal abuse," Diestel said in May. "I had to call for a break to explain to him that this was about the murder of Jewish people, and not about abusing chickens and ducks."

Case against Kabisch

Even if there is no more Zafke trial, the case could have consequences for Kabisch, who faces accusations of obstruction for his role in holding up the trial. The judge initially caused outrage for refusing to allow Walter and William Plywaski, two brothers whose mother was murdered at Auschwitz in the period Zafke was working there, the right to act as co-plaintiffs.

That decision was overruled by a higher court in Rostock, but Kabisch then refused Walther the right to apply for travel costs to visit his clients in the US - normally a formality. Once again, the Rostock court overturned the decision, only for Kabisch to repeat his decision to have the Plywaski brothers shut out of the trial. Once again, the higher court had to intervene.

Walther said his clients had been "very, very badly treated," but the decision to dismiss Kabisch was a "sign" that "such a trial could be conducted with dignity."

Given the historical significance of the trial, other German prosecutors publicly voiced their unease with Kabisch's handling of the case. Walther eventually pressed charges against the judge for obstructing justice, which could potentially mean a one-year prison sentence.

Historical legal failure

Guski said his organization would continue its education campaign around the Auschwitz trials while the legal labyrinths are being navigated. "We know that medics like Zafke gave deadly injections, were involved in selections on the ramps, and led people into the gas chambers of Auschwitz," he said. "But we don't know to what extent Zafke participated in that."

Zafke is one of a series of former Auschwitz workers whom the German judiciary has pursued since a groundbreaking ruling in 2011, when the former Sobibor guard John Demjanjuk was convicted of accessory to murder.

Up until then, no one had been convicted of participating in the day-to-day routine of the Holocaust in a German court - the Frankfurt trials of the 1960s focused only on those guards who could be found guilty of specific murders. Though denying the Holocaust is a crime in Germany, participating in it was never taken up in the criminal code.The sentencing of Oskar Gröning, a former Auschwitz accountant, to four years in prison in Lüneburg in July 2015 was seen as a sign that the German judiciary had finally tried to correct this history.

Guski is convinced that, despite the likely collapse of this case, the judiciary will see the Neubrandenburg debacle as a good example of how not to conduct a Holocaust trial. "The trial in Lüneburg went smoothly and acceptably to those involved, but Neubrandenburg is an absolute negative example to other judges in Germany of how things can't and shouldn't be allowed to happen," he said.

For his part, Walther said he would rather not speculate on how many courts in Germany might follow the Neubrandenburg example. "But we should ask where this comes from, this persistently ambiguous reality in the German judiciary," he said.