Police raid Cardinal Woelki's residence

Lawyer orders search of Cardinal Woelki's house

"We are all equal before the law"

As part of investigations against the Archbishop of Cologne, the Bishop's house was searched on Tuesday morning, among other places. Does a bishop have immunity? Is there really a possibility of imprisonment? The lawyer Cornel Hüsch classifies.

DOMRADIO.DE: The Public Prosecutor's office and the Archbishopric of Cologne are talking about a trial that is open to results. It is about an initial suspicion, where incriminating and exculpatory facts are now being sought. How solid does this initial suspicion have to be for a house search to take place?

Dr Cornel Hüsch (lawyer and long-standing member of various committees in the Archdiocese of Cologne): It is true that house searches are part of the tools of the trade used by the public prosecutor's office in investigations. It is also by no means as rare as one thinks. It is searched more often than is often thought. But it always requires a court order, unless there is imminent danger.

The judge examines whether there is an initial suspicion, whether sufficient facts are recognisable, if they are present, a criminal offence is possible and this can be realised. However, the public prosecutor's preliminary investigation always serves at the same time to prove guilt and innocence, so that it is actually open-ended in that exculpatory evidence is not only sought, but is also used afterwards.

Cornel Hüsch

"The proceedings always serve to prove guilt and innocence at the same time."

DOMRADIO.DE: You use the term house search. The media speak of a raid. Can this term be used?

Hüsch: Raid is a colloquial term, it is not found in the law. The law only speaks of searches of homes and business premises. In this respect, raid is a bit more lurid than house search and otherwise describes the search of several rooms and places at the same time with larger police deployment. But from a legal point of view, it is not a common and justiciable term.

DOMRADIO.DE: The legal background is paragraph 156 of the Criminal Code, which deals with false testimony under oath, i.e. perjury. How dramatic is such perjury when it is proven? How often do consequences really follow, such as imprisonment, which is what the text of the law talks about?

Hüsch: First of all, it must be made clear that there are several criminal charges in general. There is both perjury as the most serious charge and the charge of making a false unsworn statement. Regardless of which criminal charge you take, it is always a matter of something being declared falsely before a competent authority and then also being assured that it is correct.

The judiciary does not like to be led around by the nose and is then very strict. In the case of a clarified and determined offence of perjury, for example, the law actually provides for a minimum sentence of one year. That is a crime and that is one of the criminal charges that have the greatest significance.

DOMRADIO.DE: Yet the whole thing is not actually based on a trial against the cardinal, but on a lawsuit filed by him against the Axel Springer publishing house. Does that play a role in the case? So if the basic accusation is not against the cardinal at all?

Hüsch: No, it doesn't matter. If I make a statement to prove a fact within the framework of legal proceedings, as was the case here, especially if I make it in court and confirm its truthfulness with a special oath, then it does not matter whether I lie in my favour or in someone else's favour. Then the criminal offence is always realised and the criminal conviction always follows.

DOMRADIO.DE: How do you classify the search of the house of such a high-ranking church official? That doesn't happen every day. Is there any restraint or fear of contact from the judiciary? That also causes a considerable wave in the media.

Hüsch: I'm not worried that the public prosecutor's office will be led in one direction or another because of public reporting. At the latest since February, when intensive searches were carried out in the Archdiocese of Munich-Freising after the allegations of abuse, also in the archbishop's environment, this is no longer a rarity.

At the time, Thomas Schüller, an expert in canon law from Münster, spoke of the first search in the context of an investigative procedure in the church environment. I don't think that was quite right, but in any case it was the first spectacular public procedure. Especially when it involves a person who is particularly outstanding in terms of ecclesiastical law, it is given special media coverage.

Cornel Hüsch

"Cardinal or sexton, nun or lawyer: we are all equal before the law and that is a good thing."

But we are all equal before the law. Cardinal or sexton, nun or lawyer. We are all equal before the law and that is a good thing and can only be made clear again through such measures. There must be no special status just because one has a special relationship to some institution.

DOMRADIO.DE: Nevertheless, we have a separation of church and state. There are two different jurisdictions. There is church law and there is state law. For example, we notice this when it comes to the investigation of abuse. There are state processes and church processes. Does that play a role in this case? Wouldn't there also be, in a certain sense, an immunity of an ecclesiastical functionary from state law?

Hüsch: Only if it were a diplomat. For example, if the Cardinal Secretary of State from the Vatican is travelling abroad, then he travels under diplomatic protection. But for a cardinal, for a bishop in his home country, there is no immunity.

On the contrary, ecclesiastical criminal law is not a substitute for state criminal law, but should ideally be added to it. It is perfectly possible for ecclesiastical criminal proceedings to stand alongside state criminal proceedings and, for example, to pronounce ecclesiastical sanctions that the state cannot pronounce. Excommunication will not be pronounced by a state court, that has to be done by an ecclesiastical court.

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