Memmingen trial

from Wikipedia, the free encyclopedia

The Memmingen trial took place from September 1988 to May 1989 before the Memmingen district court against the doctor Horst Theissen on suspicion of illegal abortion in several cases. The trial coincided with a heated political and social debate about the legality of abortion. In addition, because of the manner in which the proceedings were conducted and the hearing of witnesses, doubts were expressed about the neutrality of the criminal chamber. The process was also referred to as the “modern witch trial”. Theissen was sentenced in the first instance to a total imprisonment of two and a half years for abortion and tax evasion on May 5, 1989 , and a three-year professional ban was imposed. After a successful revision , the doctor was sentenced at the main hearing to a suspended prison sentence of one and a half years; a professional ban was not issued this time.

The political environment

After the Second World War , the restrictive ban on abortion was initially retained in the Federal Republic of Germany . While in the GDR from 1950 based on the Law on the mother and child protection and the rights of women first one indication-based legal and in 1972 with the adoption of the law on termination of pregnancy , a period regulation was necessary abortion in was West Germany still punishable if there was no medical indication. In the wake of the women's movement , a more liberal view then prevailed, which in 1974 also led to a deadline regulation in the Federal Republic of Germany. According to this, a termination in the first twelve weeks of pregnancy should in principle be free of punishment. Against this law, the CDU and CSU submitted a norm review application to the Federal Constitutional Court , which declared the law null and void and the regulation in its judgment incompatible with the Basic Law . As an alternative, an indication solution was suggested, so that in 1976 the Bundestag passed a new version of §§ 218 and 219 StGB. According to this, an abortion was only exempt from punishment if there was a medical, criminological, eugenic or emergency indication.

The new federal law left the individual federal states relatively broad leeway on how to carry out advice on the determination of indications and abortion themselves in order to remain exempt from punishment. As a result, for example, in Bavaria and Baden-Württemberg, abortions have only been allowed to be carried out as inpatients with a hospital stay lasting several days since 1980; In addition, only a few hospitals were willing to even carry out abortions. The courts in the individual federal states applied very different standards when assessing the legality of an indication. Bavarian courts in particular ruled relatively strict about the reasonableness of an emergency indication, which at that time justified about 80% of abortions. As a result, most women from Bavaria and Baden-Württemberg had outpatient abortions performed in Hesse or drove straight to the Netherlands .

The history

District Court Augsburg (Palace of Justice)

Horst Theissen opened his practice as a resident gynecologist in Memmingen in 1974 . After years of activity, he was reported anonymously in 1986 for tax evasion . As it turned out later, this report came from a former medical assistant with whom there had been differences. In the course of the investigation, the medical practice's business documents were confiscated, including the patient file. The tax investigators passed this file on to the Memmingen public prosecutor's office , which in turn applied for confiscation in court, but now in a criminal case for illegal abortion.

Could be while the control criminal case through the cooperation of Theissen over relatively quickly (in February 1987, he was the Augsburg District Court to a term of imprisonment of 15 months, to probation , sentenced was suspended), the criminal case gained its own momentum because of abortion: All patients who were terminated after 1980 were interviewed. Investigations into illegal abortion or aiding and abortion were initiated against 279 women and 78 men. Most of them ended with a fine . Few of those convicted appealed and risked a public trial.

The procedure

The beginning of the procedure

The district court in Memmingen am Hallhof

The main hearing against Theissen was opened on September 8, 1988 before the 1st  criminal division of the Memmingen Regional Court . The chamber consisted of the presiding judge Albert Barner, the other professional judges Axel Heinrich and Detlef Ott and two lay judges . The public prosecutor was represented by the public prosecutors Herbert Krause and Johann Kreuzpointner. Theissen was defended by the three lawyers Wolfgang Kreuzer, Sebastian Cobler and Jürgen Fischer.

Right at the beginning of the hearing, the defense requested that the proceedings be discontinued because the confiscation of the patient record as the central piece of evidence was unlawful and unconstitutional. This was justified by the fact that there was no initial suspicion of the confiscation by the public prosecutor, the evidence was therefore legally corrupt and the data contained (also according to earlier judgments of the Federal Constitutional Court ) had a special protection of legitimate expectations. The application was rejected by the court. In the period that followed, the defense attorneys made several requests for bias because members of the criminal division made comments within and outside of the proceedings that could be understood as bias. These applications were also rejected. What was interesting about this was that the seven judges of the two criminal chambers of the court mutually certified that they were impartial, until the Munich Higher Regional Court had to intervene in the absence of judges authorized to make decisions. This procedure by the Memmingen judges was a reason for revision even before the end of the process and was included in the reporting as a "bias carousel".

The hearing of witnesses

Before the start of the proceedings, the court sent a questionnaire drawn up with the public prosecutor's office to all witnesses who had had an abortion performed by von Theißen. This not only asked about medical care and advice before and after the procedure, but also about personal, family and financial circumstances. The witnesses were given the prospect of not having to appear in court in person if the answers were complete and truthful. 156 women were summoned as witnesses, their names were read out during the trial, 79 of them were heard in court and, in some cases, publicly questioned about the most intimate details, the remaining 77 were ultimately spared appearing in court.

The way in which the judges and public prosecutors dealt with the witnesses led to strong reactions in the press and public and made the process known nationwide. The tense atmosphere was also made clear by the fact that the public prosecutor's office inadvertently addressed individual witnesses as “accused” during the trial. The questionnaire sent to the witnesses caused such a stir that it was quoted in a current hour of the Bundestag on the issue of abortion.

The invited experts made it clear that the decision as to whether the patient is in an emergency is in any case a tightrope walk for the doctor and must always be considered in the context of the individual case. On the other hand, the court and the public prosecutor's office took the view that the reasons for a termination must also be legally comprehensible later. The view that the validity of medical knowledge alone can be the basis of action creates legal vacancies here.

Exchange of a judge

On March 13, 1989, a report appeared in the news magazine Der Spiegel , according to which the associate judge Detlev Ott is said to have participated in an abortion of his girlfriend at the time in the summer of 1980; The couple is said to have gone to Hessen for this purpose, because the only possibility there was the practice of the later defendant Theißen. So the judge in question would have done exactly what several other men had been charged with for abortion. In addition, he, who himself lived in solid financial circumstances, had particularly emphatically asked questions about the financial circumstances of the witnesses. The court finally granted the defense's subsequent petition for refusal , and his place was taken by the young additional judge Brigitta Grenzstein.

The defense then filed a further motion to discontinue the proceedings because the conduct of this judge, who has now been proven to be biased, had damaged the proceedings to such an extent that an objective structure of the process was no longer guaranteed. After two days of deliberation, this application was rejected by the court.

Plea of ​​the public prosecutor's office

The prosecutor's office took in her plea the view that an abortion with a homicide be equated and therefore in the assessment referred to in § 218 of the Criminal Code exceptions stringent standards are applied need. With reference to the possibility of financial aid, state care facilities and the possibility of putting a child up for adoption, the public prosecutor saw in no single case an indication of emergency. In their view, the threat of job loss or dependence on social assistance were not sufficient grounds for justification.

In a plea of ​​over eight hours, the two public prosecutors took turns dealing with each of the 156 cases individually. The descriptions of the accompanying circumstances also allowed conclusions to be drawn about the identity of the 79 women who were previously allowed to testify in closed meetings for their protection.

The public prosecutor's office demanded a prison sentence of more than two years, which can no longer be suspended on probation , and a multi-year professional ban .

Defense plea

The defense's plea consisted of three parts: First, Fischer analyzed the judgments and interpretations of the law since the Federal Constitutional Court's judgment on abortion in 1972. In contrast to the public prosecutor's office, he assumed that the judicial knowledge cannot and should not replace the medical one. Kreuzer followed up on this, took the cases of some women as examples and showed contradictions in the assessment of emergency situations by the public prosecutor's office. Cobler finally criticized the fact that the term emergency in the process was often only interpreted as a financial emergency that had to be accountable. He commented on the prosecution's plea with the following words:

"If it were up to the public prosecutor's office, then there wouldn't be a single emergency that was relevant - except perhaps that of the excellent judge Ott."

In cases in which Theißen had violated the regulation of the determination of the indication by a second doctor, the defense regarded a warning with reservation of punishment as sufficient. In the central charge of violation of Section 218 of the Criminal Code, she demanded an acquittal .

The judgment

Theissen was sentenced to a total custodial sentence of two and a half years for multiple abortions, including the already final conviction for tax evasion , and a three-year professional ban was imposed. In the oral grounds for the verdict, Judge Barner largely agreed with the arguments of the public prosecutor's office. The medical knowledge should not escape the judicial review, the difficulties of the reality of life are not automatically an emergency. Due to the number of violations of the law, a suspended sentence is no longer an option.

After the first judgment

After the verdict Theissen put revision in federal court one. This overturned the verdict in the sentence and referred the proceedings back to the Augsburg Regional Court for a new main hearing because "due to the poisoned atmosphere in Memmingen, an objective judgment no longer seems to be guaranteed" . In the renewed main hearing, the doctor was finally sentenced to a suspended suspended prison sentence of one and a half years; a professional disqualification was not imposed.

Theissen lodged a constitutional complaint with the Federal Constitutional Court because of the use of the patient record , which was not accepted for decision in May 2000. At that time he was working as a doctor in a practice for naturopathy and homeopathy in Hessen .

Of the original 156 cases in the indictment of the Memmingen trial, 77 were dropped in the course of the proceedings. Of the remaining 79 cases, 36 times in the first instance judgment were identified as illegal abortion according to § 218 StGB and four times in attempts to do so. In the other 39 cases, a second doctor did not determine the indication (violation of Section 219 StGB), but the court implicitly recognized the existence of an emergency.

In retrospect, most of the 259 women who had received penalties from the Memmingen district court in the run-up to the trial and had not defended them in court had paid them unnecessarily.

Sources and literature

Web links