GERMAN COURT TO RESUME TRIAL AGAINST A.Q.

C O N F I D E N T I A L SECTION 01 OF 02 BERLIN 002239

SIPDIS

NOFORN

SIPDIS, ISN, EUR, NEA, SCA, AF

E.O. 12958: DECL: 12/20/2017
TAGS: PARM KNNP KJUS KCRM PREL MNUC ETTC GM
SUBJECT: GERMAN COURT TO RESUME TRIAL AGAINST A.Q.
KHAN-LINKED DEFENDANT GOTTHARD LERCH

REF: A. PRETORIA 3543

B. PRETORIA 3210

C. 2006 BERLIN 2194

D. 2006 BERLIN 1170

Classified By: Global Affairs Counselor Donald R. Shemanski
for reasons 1.4 (b) and (d).


1. (C/NF) SUMMARY: A federal court in Stuttgart announced
November 14 that trial proceedings would resume in early 2008
against Gotthard Lerch, a German citizen allegedly linked to
the A.Q. Khan nuclear proliferation network. The trial was
suspended in July 2006 pending resolution of jurisdictional
issues and difficulties in obtaining testimony and evidence
from Switzerland and other countries. MFA officials told us
December 20 that Germany welcomes the September conviction in
South Africa of Khan associate Gerhard Wisser, but expressed
concern about lack of access to Wisser's testimony and
evidence in possession of the South African authorities. An
MFA contact cited "friction" between German and South African
legal authorities as a primary factor. He claimed South
African authorities have refused to consider German legal
assistance requests until South African prosecutors complete
their ongoing investigation, which German officials estimate
could take as long as three to four years. END SUMMARY.


2. (SBU) On November 14, the Stuttgart Higher Regional Court
(Oberlandesgericht) announced that trial proceedings would
resume against Gotthard Lerch, a German citizen allegedly
linked to the A.Q. Khan nuclear proliferation network. In
2006, the Federal Prosecutor's office in Karlsruhe formally
petitioned to have the case reassigned from the Mannheim
District Court (Landgericht) to the Stuttgart court as the
result of changes in German procedural rules that give
regional (federal) courts jurisdiction over violations of the
Foreign Trade and Payments Act (FTPA) and the War Weapons
Control Act (WWCA). The case will be handled by a special
chamber (Staatsschutzkammer) of the Stuttgart court that is
charged with trying crimes against the state. The prosecutor
in the case, yet to be assigned, will now be a federal
prosecutor, rather than the state prosecutor who was in
charge of the Mannheim trial. Stuttgart court officials
expect the trial to resume early next year. The maximum
sentence for a single violation of the WWCA is five years in
prison, with additional years (up to 15) being added for
additional violations. The court also has the authority to
confiscate all of Lerch's assets, if he were found guilty.


3. (SBU) The Mannheim District Court suspended the trial of
Gotthard Lerch in July 2006 citing the jurisiction issue and
unresolved German requests for judicial assistance from
Switzerland, Liechtenstein, Malaysia, and South Africa (ref
C). (NOTE: Contrary to media reports stating that the
Mannheim court declared a mistrial, court officials insisted
at the time that the trial against Lerch had only been
suspended. Post's in-house legal research concluded that
German law does not provide for a mistrial -- either a case
is suspended or dismissed outright. END NOTE)


4. (SBU) The Mannheim court also ruled that it was
unreasonable to detain Lerch during the trial's suspension
and temporarily released him on bail. Lerch, who was
extradited from Switzerland in 2005 on the condition that he
only be charged with violating the WWCA, was subsequently
given permission to return to Switzerland. According to
media reports, Germany and Switzerland have since resolved
procedural issues on the sharing of evidence and the
cooperation of subpoenaed witnesses. Similar German
petitions to South Africa and Malaysia have not yet been
approved. Post has received conflicting information as to
whether Lerch remains in Switzerland or has returned to
Germany.


5. (C/NF) On December 20, MFA International Penal, Customs,
and Tax Law Division Director Thomas Neisinger and Penal Law
Desk Officer Heidi Friedrich briefed emboffs on German
efforts to prosecute Lerch and on the possible impact of the
September conviction in a South Africa court of A.Q. Khan
network proliferator Gerhard Wisser (refs A and B).
Neisinger stated that German officials in South Africa had
tried to make contact with Wisser, who is a German citizen,
but had not received any information from him that might be
of use in the Lerch trial. Neisinger noted that South
African authorities had objected to the German Government

BERLIN 00002239 002 OF 002


attempts to contact Wisser, claiming that any cooperation on
his part with German authorities might jeopardize the South
African Government's ongoing investigation. Neisinger
insisted that German Government officials have the right
under international law to contact German nationals living
abroad such as Wisser, particularly in light of the fact that
Wisser's movements in South Africa have not been restricted,
notwithstanding his recent conviction.


6. (C/NF) Neisinger said the MFA was aware of "friction"
between the German Embassy and South African legal
authorities, but quickly noted the issue had not yet been
broached in any "high-level" bilateral discussions.
Nonetheless, Neisinger said, German prosecutors are "eager"
to obtain any evidence - including Wisser's testimony - that
could be used in the Lerch case. To that end, Neisinger
said, Germany had submitted ten legal assistance requests to
the South African Government since 2005. Of those, eight had
gone unanswered. In the other two cases, South African
authorities "informally" responded that they will not be in a
position to cooperate until they "wind up" their
investigation. Neisinger speculated that it could take as
long as three to four years to wrap up the case, particularly
as new evidence comes to light as the result of Wisser's
cooperation with South African investigators.


7. (C/NF) Neisinger said South African authorities had "not
shown interest" in a German proposal that would permit Wisser
to testify in the Lerch trial via video link. Such an
arrangement, Neisinger explained, would allow Wisser to offer
testimony in a "completely non-coercive environment." (NOTE:
South Africa and Germany do not have a bilateral extradition
treaty. END NOTE.) In response to German inquiries about
the possibility of an informal information exchange,
Neisinger said, South African officials had refused because
they did not want to jeopardize (unspecified) ongoing legal
proceedings in South Africa. When pressed, Neisinger
acknowledged that even under German rules of evidence, which
are more flexible than in the United States, information
obtained via informal cooperation could probably not be used
in court, notwithstanding the considerable discretion
afforded to German judges concerning the admission of
evidence.


8. (C/NF) Neisinger said German diplomats in Vienna had
shared their concerns with South Africa's IAEA PermRep,
Ambassador Minty, in September 2007, but had not received a
response. Neisinger expressed concern that efforts to
prosecute Lerch would be significantly more complicated
without Wisser's testimony and access to evidence in the
possession of South African authorities.


9. (U) This message has been coordinated with ConGen
Frankfurt.
KOENIG