No. 61/2022
Today, the 5th Senate (State Security Senate [Staatsschutzsenat]) of the Higher Regional Court (OLG) Frankfurt/Main found the 33-year-old German citizen Franco A. guilty of the preparation of a serious violent offence endangering the state in combination with intentional unauthorized exercise of actual power over weapons of war, intentional unauthorized carrying of a semi-automatic handgun, intentional unauthorized possession of a semi-automatic handgun, intentional unauthorized possession of firearms and ammunition, intentional unauthorized transfer of firearms into the scope of the Weapons Act, intentional unauthorized hand-ling of explosive substances and embezzlement in combination with fraud in two cases. The Senate therefore sentenced the defendant to a total term of imprisonment of 5 years and 6 months.
The main trial started on 20 May 2021 and took 39 days. The Senate heard 4 experts and 34 witnesses and collected a large amount of further evidence. In particular documents were read out and audio and video files were examined. Based on this evidence, the Senate found the following facts:
Personal circumstances of the defendant
The defendant was born in Offenbach were he grew up and finished school in 2008. After passing his A-Levels he was drafted into the German armed forces as a conscript. According to the Senate, the defendant decided to become a professional soldier and to go through officer training. The defendant received a recommendation for French officer training. In October 2009 he went to Fontainebleau in France and attended a preparatory class in Versailles for two years. Then he studied at the Saint-Cyr Officer School in Brittany until 2014. His subjects were troop leadership, international relations and business management. After completing his Master’s degree and a training period in Hammelburg, the defendant became member of the German-French brigade of the Jägerbataillon 291 in Illkirchen/Graffenstaden in France on 1 February 2016. According to the Senate, the defendant has the rank of first lieutenant since 1 January 2014. The defendant is said to be fluent in French and English and to have basic knowledge of the Italian and Arabic language.
The defendant does not have a criminal record. He was provisionally arrested in these criminal proceedings on 26 April 2017 and remained in pre-trial detention from 27 April 2017 until 29 November 2017. On this day, the Federal Court of Justice (BGH) suspended the arrest warrant and the defendant was released from pre-trial custody. The Bundeswehr, too, initiated judicial disciplinary proceedings against the defendant. The Military Service Court (Truppendienstgericht) will come to a decision after completion of these criminal proceedings. Meanwhile, the defendant ist temporarily suspended from his duties and is not allowed to wear his uniform. After his release from pre-trial detention, the defendant began studying law at Goethe-Universität Frankfurt, from which he is currently on leave. Until his re-arrest, the defendant lived with his fiancee and their three joint children in Offenbach. The presiding judge of the Senate issued an arrest warrant on Saturday, 12 February 2022, in urgent jurisdiction, which was recast by order of the Senate on 14 February 2022. On 13 February 2022, the defendant was arrested again and has been in pre-trial custody since then.
Conviction for fraud in two cases
According to the Senate, the defendant has had extreme right-wing views for many years. His attitude is völkisch-nationalistic racist and anti-Semitic. The defendant insinuates that people of the Jewish faith wish for world domination by Zionism.
According to the Senate, the defendant believes that „Zionism“ is waging a systematic race war in which millions of migrants are being brought to Germany. This would lead to a mixing of races and to the extermination of the German race. According to the defendant, high-ranking politicians and public figures who stand out for their pro-refugee commitment are responsible for this. The defendant rejected established democratic ways of changing political and social conditions and considered the political system of the Federal Republic of Germany to be mendacious.
According to the Senate, the defendant had also feared that a major disaster could occur, for example a war with Russia or China. He had been a member of the telegram chat group „Süd“ which exchanged information on preparing for a disaster scenario. He had stored food supplies, petrol and water as well as weapons and ammunition in his cellar in Offenbach. Parts of these weapons and ammunition came from Bundeswehr stocks in Hammelburg or Ilkirch-Graffenstaden.
At the end of 2015, the defendant decided to try to register as a Syrian refugee. He wanted to show how easy it is to live under a false identity as a refugee and to receive state transfer payments. On 29 December 2015 the defendant put on old clothes, put dark make-up on his face, dyed his beard and went to a reception centre for refugees in Offenbach. There he applied for asylum as an alleged Christian Syrian refugee called „Benjamin David“. He stated that he had lost his passport when fleeing Syria in December 2015. He claimed to speak only French. He had been assigned to the asylum seeker’s accomodation in Kirchberg/Erding and had maintained the identity as an alleged Syrian refugee until his arrest on 26 April 2017.
On 12 May 2016, the defendant had filed an application for asylum with the Federal Office for Migration and Refugees and head been heard here in November 2016. He had given the name „David Benjamin“. The defendant was granted subsidiary protection under the Asylum Act on 16 December 2016. The defendant regularily documented his experiences as an asylum seeker in videos in which he spoke partly in German and in French.
As a registered asylum seeker the defendant, according to the Senate, received benefits worth 6.920,49 Euro. On 14 February 2017, he applied for benefits at the Job Centre in Erding. These were granted to him in the amount of 409,- Euro per month on 1 March 2017.
According to the Senate, the defendant was not entitled to any of the benefits granted to him and knew this. He wanted to receive the benefits in order to maintain his identity as a Syrian refugee. After his arrest on 26 April 2017 the defendant paid back the benefits obtained in this way.
Abridged English version of the press release with regard to the fraud offences
Conviction for the preparation of a serious violent offence endangering the state and the weapons and explosives offences and the offence of embezzlement
According to the Senate, the defendant acquired unauthorized possession of a Heckler & Koch G3 rifle, of a pistol FN Browning 7,65 mm and of a semi-automatic self-loading rifle Landmann Preetz starting from 5 April 2016. He did not posses any weapon law permits in this regard. On 22 January 2017 the latest the defendant obtained a pistol Browning Rr, 7,65 mm of the manufacturer M.A.P.F. According to the Senate, the defendant brought this pistol to the Vienna-Schwechat airport and hid it in the cleaning shaft of a toilet facility. The Senate held that the defendant travelled from Munich to Vienna by plane on 3 February 2017 to take the pistol back. While trying to remove the weapon from the cleaning shaft, the defendant was arrested. In the meantime, the pistol had been discovered and the Austrian police had secured the hiding place.
According to the Senate, the defandant made the firm decision to attack the lives of high-ranking politicians and public figures out of his völkisch-nationalist anti-Semitic attitude. In this way he wanted to bring about a political or social change of direction in his favour and, in his opinion, wanted to contribute to the „preservation of the German nation“. According to the Senate, the defendant considered the following persons as possible victims: the then Vice-President oft he German Bundestag Claudia Roth, the then Federal Minister of Justice Heiko Maas as well as the journalist and founder of the Amadeu-Antonio-Foundation Anetta Kahane. In the opinion of the Senate, Ms. Kahane is very well known for her commitment against right-wing extremism, against xenophobia and against anti-Semitism and is thus a public figure. These potenial attack victims had only been chosen by the defendant because they represented the political system of the Federal Republic of Germany as public officials or public figures standing for the refugee policy he hated. The Senate held that there was no personal relationship between the defendant and these persons. After the arrest at the Vienna airport an 3 February 2017, the defendant, in the opinion of the Senate, did not initially persue further planning of the attacks because of the increased risk of detection and persecution.
The Senate held not to have been able to establish that the defendant wanted to commit the attack under his Alias „Benjamin David/David Benjamin“.
Assessment of evidence
The Senate took into account that the defendant essentially admitted the external circumstances of the offences. However, the defendant denied that he had extreme right-wing views. He has claimed not to have planned to carry out an attack on a politician or a public figure. The Senate held that this statement was refuted to the conviction of the Senate by the result of the taking of evidence.
According to the Senate, the defendant has a völkisch-nationalistic racist and anti-democratic attitude. The Senate’s conviction follows from the notes and audio files of the defendant and from the fact that he possessed Nazi devotional objects. The Senate also assessed the statements of witnesses and the defendant’s plea in the main hearing. In the opinion of the Senate, the defendant’s attitude is also contained in the Master’s thesis with the title „Politischer Wandel und Subversionsstrategie“ from 2013, which was not recognised as an examination performance.
The Senate is convinced that the defendant was determined to commit a serious violent offence endangering the state. The decision had been made. In particular, the Senate took into account further written records and audio files of the defendant. In addition, the Senate is convinced that, in the summer of 2016, the defendant has fitted a G3 Heckler & Koch rifle with a telescopic sight, looked out an underground car park, took photos of the parked cars and held shooting exercises with a SN Browning pistol on a shooting range. Furthermore, the Senate is convinced that the defendant sent a picture of Anetta Kahane to a witness.
Sentencing
The Senate considered in the defendant‘s favour, among other things, the following facts: The defendant had no previous convictions and confessed to the offences of fraud as well as weapons offences and explosives offences. In addition, the defendant admitted to other circumstances that were unfavourable to him. Furthermore, the defendant waived the return of the seized weapons, weapon parts, ammunition, explosive devices and cartridges. The Senate has also taken into account, that the defendant will lose his position as a professional soldier. In addition, the defendant was on several occasions the addressee of actions that vilified him in gross disregard if the presumption of innocence. Among other things, his home address and the registration number of his motorbike were made public.
The Senate considered in the defendant‘s disadvantage the fact that the defendant – at the same time as preparing a serious violent offence endangering the state - has committed a large number of other offences in many cases.
Compensation of the long duration of the criminal proceedings
Due to the Senate’s burden of custody cases, it was not possible to begin the main hearing promptly after the opening of the main proceedings by order of the Federal Court of Justice (BGH) of 22 August 2019. The Senate therefore found a delay in the proceedings contrary to the rule of law due to a violation of the defendant’s rights under sec. 6 of the Convention of Human Rights. As compensation, the Senate considered 3 months of the total term of imprisonment to have been executed.
Pre-trial detention
The Senate decided to continue the pre-trial detention of the defendant.
Right of appeal
The judgement is not yet final. The defendant, his defence lawyers and the Attorney General (Generalstaatsanwaltschaft) have respectively the right of appeal against the judgement to the Federal Court of Justice (BGH).
Higher Regional Frankfurt/Main, judgement of 15 July 2022, 5-2 StE 18/17 - 5a - 1/17
English version: dep. press spokeswoman Dr. Charlotte Rau