Higher Regional Court Frankfurt/Main sentences Stephan E. to lifelong imprisonment for murder of the district president of the city of Kassel Dr. Walter Lübcke
Today, the 5th Senate (State Security Senate [Staatsschutzsenat]) of the Higher Regional Court (OLG) Frankfurt/Main found the 47-year-old Stephan E. guilty of murder and sentenced him to lifelong imprisonment. Furthermore, the Senate held the particular severity of guilt and reserved a preventive detention. The Senate acquitted the defendant Stephan E. from the charge of having stabbed an Iraqi asylum seeker on 6 January 2016 with intention of killing.
The 44-year-old co-defendant Markus H. was acquitted by the Senate from aiding and abetting to the murder of Dr. Lübcke. However, Markus H. was sentenced to imprisonment of one year and six months on probation for illegal possession of firearms.
After 45 days of main trial, the Senate found the following facts concerning the murder of Dr. Lübcke by the defendant Stephan E.:
According to the Senate, Stephan E. was part of an extreme right wing movement in the area of Kassel since 1999. He had a fundamental nationalist attitude characterised by racism and xenophobia. Already in his youth he committed serious criminal offences to the detriment of migrants. Since 2011, he was on friendly terms with the co-defendant Markus H., who was likewise part of the extreme right wing movement. The two defendants were in fear of a kind of civil war situation caused by the immigration of Muslim migrants. They held the view that the Germans were entitled to self-defence against other ethnic groups and cultures. The defendants were in possession of firearms. They practiced shooting in their spare time in a shooting club and participated in extreme right wing demonstrations.
On 14 October 2015, the defendants attended a citizens‘ meeting in Lohfelden. The meeting concerned the planned accommodation of asylum seekers in an initial reception facility. The district president of the district of Kassel Dr. Lübcke held a speech at the meeting, in which he recalled the historical responisibility of the Federal Republic of Germany and approved of the accomodation of asylum seeking people. In reaction to disturbances from among the audience he made, inter alia, the following statement: „It is worth living in our country. One must stand up for these values and those who do not agree may leave the country at any time. This is the free decision of every German.“ These statements outraged the defendants. The defendant Markus H. made a video recording of main parts of the meeting with his mobile phone. Following the meeting, he posted an abridged version of the recording on Youtube which focused on the aforementioned statements of Dr. Lübcke.
According to the Senate, the defendant Stephan E. since then focussed his xenophobia on Dr. Lübcke. Because of his attitude towards migrants, he considered Dr. Lübcke to be a traitor to the German people. In the following period, the defendant Stephan E. went to Dr. Lübcke’s house in Wolfhagen-Istha several times to scout it out. Finally, on 1 June 2019 between 11.00 p.m. and 11.30 p.m., the defendant Stephan E. went silently on the terrace of the property. At this time, Dr. Lübcke sat on a chair and was working with his tablet device. According to the Senate, the defendant Stephan E. approached Dr. Lübcke coming from the right and killed him with a well-aimed shot in the head. He made use of a Rossi brand Double-Action Revolver (calibre 38) and shot from a distance of 100 up to 150 centimeters.
The Senate qualified the offence as murder perfidiously committed and motivated by base motives. Therefore, the Senate sentenced teh defendant Stephan E. to lifelong imprisonment. The Senate based its finding regarding the particular severity of guilt on the right wing extremist sentiments of the defendant Stephan E. which constituted the central motive of his actions. Furthermore, the Senate took into account that the defendant Stephan E. had committed several significant violent criminal offences in the past due to his extremist right wing attitude. In addition, the Senate reserved a preventive detention of the defendant Stephan E.. According to the legal reasons given by the Senate, a preventive detention without reservation would have required, at least, two criminal offences qualifying as basis for such a measure. Nevertheless, the Senate considered the measure as necessary due to the almost rooted inclination of the defendant Stephan E. to commit serious criminal offences. In this, the Senate followed the findings of the forensic psychological expert Prof. Dr. Leygraf. According to this expert, the defendant Stephan E. has a deeply rooted inner condition of xenophobia with corresponding behavioural dispositions. Against this background, comparably serious criminal offences are to be expected again in the future.
The Senate gave the following reasons for the acquittal of the defendant Markus H. regarding the participation in the murder of Dr. Lüb>The Senate did not come to the conclusion beyond reasonable doubt that the defendant Markus H. was present at the scene of the crime when it was committed. The defendant Markus H. exercised his right to remain silent regarding this allegation. The defendant Stephan E., however, made extensive statements at the main trial. The Senate did consider these statements, as far as they related to Markus H., not to be credible. The reasons were, in particular, the contradicting content of the various statements of the defendant Stephan E. In a first statement in the pre-trial investigation, he initially claimed to have beend alone at the scene with Dr. Lübcke and to have fired the shot. In a second statement, he claimed to have been at the scene together with Markus H. The latter allegedly held the weapon, while the deadly shot went off accidentially. In the further course of the main trial, he again altered his statement and claimed that he was at the scene together with Markus H. In this version the defendant Stephan E. stated that he fired the shot in accordance with a common planning with Markus H.
The Senate held these statements by the defendant Stephan E. to be changing, contradictory and lacking in details, which seriously undermined their credibility. The defendant Stephan E. also made, according to the Senate, changing statements, which he adapted to the respective state of the hearing of evidence. In addition, there was no objective evidence to prove the presence of the defendant Markus H. at the scene of the crime. On the contrary, there were indications that the defendant Markus. H. was not at the scene at the time of the crime: first of all, the mobile phone of Markus H. was not registered in a radio cell near the scene of the crime at the relevant time. Furthermore, the computer located in the defendant’s flat had been used in the period in question. There were no indications that other persons than the defendant Markus H. had used this device. Taken all the evidence together, there were, according to the Senate, serious doubts regarding the participation of the defendant Markus H. in the murder.
The court held that the same doubts apply to the charges of aiding and abetting to the murder. The evidence did not show that joint shooting exercise led to an improvement in the shooting skills of Stephan E. or provided psychological support for his offence. Also other actions of Markus H., including joint participation in extreme right wing demonstrations, did not constitute such psychological support of the offence of Stephan E. Furthermore, the Senate was not convinced that Markus H. seriously considered that Stephan E. would commit such an offence. Against that background, the Senate acquitted Markus H. also from the charges of aiding and abetting to the murder.
The Senate pointed out that the acquittal is based on the principle of necessary proof beyond reasonable doubt („in dubio pro reo“). Doubts concerning the relevant facts must be considered to the advantage of the defendant.
The defendant Markus H. was sentenced to imprisonment of one year and six months on probation for illegal possession of an essential part of a fully automatic firearm. According to the Senate, the defendant Markus H. was in possession of a submachine gun brand Madson 50 without a firearms licence. The defendant Markus H. kept the weapon as a decoration without making its handle piece permanently unusable. The Senate imposed this sentence upon probation, since the defendant Markus H. has no previous convictions and was in pre-trial detention for one year and three months.
The defendant Stephan E. was acquitted from the charge of having stabbed the Iraqi asylum seeker Ahmad I. on 6 January 2016 with intention of killing. The acquittal was based on the principle „in dubio pro reo“. The Senate was not convinced beyond reasonable doubt that the defendant Stephan E. committed this offence. The evidence showed that the defendant Stephan E. only came into possession of the knife on 30 January 2016, which he was accused of having used in the crime. Moreover, the DNA found on this knife could not be attributed to the victim Ahmad I. in a scientific viable manner.
The Senate decided to continue the pre-trial detention of the defendant Stephan E., who was arrested on 15 June 2019.
The Senate rejected the application of the Attorney General to issue an arrest warrant against the defendant Markus H., since the latter was acquitted from the charges of aiding and abetting the murder of Dr. Lübcke. The defendant Markus H. had been arrested on preliminary terms on 26 June 2019 and had remained in pre-trial detention until 1 October 2020, when the Senate had lifted the arrest warrant.
The judgement is not yet final. The defendants, their defence lawyers, the Attorney General (Generalstaatsanwaltschaft) and the joint plaintiffs (the widow and the two sons of Dr. Lübcke as well as Ahmad I.) have respectively the right of appeal against the judgement to the Federal Court of Justice (BGH).
Higher Regional Frankfurt/Main, judgement of 28 January 2021, 5-2 StE 1/20 - 5a - 3/20
Facts of the main trial:
duration: 45 full-day maintrial days
scope of data: 260 file volumes
participants in proceedings: total 22
- 5 (+ 2) judges
- 2 representatives of the Attorney General
- 3 + 1 joint plaintiffs
- 2 assistents to the joint plaintiffs
- 2 defendants
- 4 defence lawyers
- 1 forensic psychological expert
witnesses heard: 53
experts heard: 9
constables on daily duty: approx. 13
Further legal explanations:
The sentence of lifelong imprisonment regularly implies that the defendant can be released on probation after 15 years of imprisonment. In case of the particular severity of guilt the release of the defendant on probation is not possible after this period of time (sec. 57a para. 1 no. 2 of the German Criminal Code). In the latter case, the court determines upon application a period of imprisonment, which extends the regular period of 15 years. In case of a positive social prognosis, the suspension of the imprisonment upon probation is possible after this additional period of imprisonment.
The preventive detention without reservation requires, at least, two criminal offences qualifying as basis for such a measure. In case of the sentencing for a single offence (sec. 66 para. 2 of the German Criminal Code), the preventive detention can be preserved. The Senate may decide upon the order of execution regarding the preserved preventive detention exclusively until the period of the lifelong imprisonment has expired.
The order would be executed if - at the time of the decision - there is a negative social prognosis with the risk of future serious offences committed by the defendant. In case of a positive social prognosis, the imprisonment is suspended on probation. As a consequence, an order for preventive detention is excluded.
The principle „in dubio pro reo“ follows from the rule of law. No citizen must be burdened with sanctions as long as the actual conditions for this have been established beyond reasonable doubt.
English version: dep. press spokeswoman Dr. Charlotte Rau