“Of course we will name names”

Interviewer: The expert opinion of the Munich law firm Westphal Spilker Wastl cannot be published because it contains serious flaws. What makes publication impossible?

Prof. Dr. Bjorn Gercke (Attorney at Law): On the one hand, it is the case that two different, very renowned law firms, which are active in the law of statements, were already commissioned in advance to examine this expert opinion from the point of view of the law of statements. So not at all in the actual sense in relation to the expert opinion, but there it was about the question whether one can publish this expert opinion, as it is, at all.

Both experts, who, as I said, are among the leading experts on the law governing statements in Germany, have independently come to the conclusion that the Munich expert opinion cannot be published.

Interviewer: What are these "reasons of expression"??

Gercke: You can claim anything in public, as long as it can be proven and as long as it does not unjustifiably violate personal privacy. In the case of the Munich expert opinion, it was the case – at least according to the colleagues from the law on statements – that speculation was used and individuals were blamed without being able to prove it on the basis of facts.

So, in principle, nothing different than if you are a journalist: You do a report, whether in writing or on the radio, and you claim things about someone, re. Of which you have a suspicion, but cannot prove it. Then this person will defend himself against it. The right of expression has a very sharp sword. They can forbid there in the way of express orders also very fast, partly also before publication, expressions already. That was the fear that colleagues have and have independently come to. First of all, this has nothing to do with my role as such.

Interviewer: Now the same Munich law firm has also prepared a similar expert opinion for the diocese of Aachen, there the text could be published. One can ame that the Munich law office has worked in a similar way as in Cologne. Why was it possible there and not in Cologne?

Gercke: Here I am quite happy to refer to my colleague Dr. Wastl from Munich, who answered the same question at the presentation in Aachen in the same way: This is not Cologne, but Aachen. In this respect, the reverse is also true: This is not Aachen, but Cologne.

Interviewer: Now the term "court-proof" appears again and again. An expert opinion must be legally binding. Other lawyers now say, however, that anything can be included under this heading, and nothing at all. No expert opinion can guarantee one hundred percent legal certainty, especially not if names or responsible persons are mentioned.

Gercke: You are absolutely right. As a lawyer, one should be careful to guarantee one hundred percent legal certainty. However, it is the case that it is also not rocket science. There are methodological standards that have to be observed, as well as the requirements of the law of expression. Neither of these was obviously guaranteed in the case of the Munich report. In principle, you can read everything about this on the homepage of the archdiocese. There is also the reference to the expertise of Professors Jahn and Streng, who do not accuse the report of deficiencies in terms of the law of expression, but of systemic, legal methodological deficiencies.

I think – with all modesty – we will certainly do better than that. And of course we will name names. It is also no problem, I had explained that: As long as you can prove any accusations cleanly and just do not indulge in speculations.

Interviewer: But now it is also said that the expert opinion from Munich can be published, at least for certain persons and groups of persons, for those affected or also for certain journalists. But not until March. Why then the? This can be done already now for certain groups.

Gercke: The fact that the expert opinion from Munich can be viewed – at least under certain conditions – was a special concern of mine, which I also brought to the attention of the Cardinal and the Vicar General. The impression should not be created that something is being kept under wraps and that a "softer version" is now coming from Cologne.

The opposite is true. I can already tell you this much. Whoever believes, whether in public or at the archdiocese itself, that our expert opinion would be "more pleasant" for the archdiocese, will find themselves on the 18. March wonder.

We go far beyond what the Munich expert opinion presents. And those affected and also the interested public should be able to make up their own minds about it. At this point perhaps only one thing, which is very important to me: the "Case O.", which is just rightly strongly thematized by the Kolner Stadt-Anzeiger and other media, also with regard to the role of the cardinal, is not mentioned in the Munich report. In our case it is.

The inspection you mentioned is, as I have heard from colleagues, difficult from the point of view of the law of expression and will probably only be possible via special confidentiality obligations. But I am not involved in this myself and cannot say anything more about it. Why the expert opinion is then published in March certainly has something to do with the fact that the archbishopric would like to have a comprehensive, balanced insight and also to be able to make a comparison. But in the end I am the wrong contact person, because I did not make this decision.

Interviewer: You also just said that your expert opinion will be painful for the archdiocese. Names and persons would also be mentioned. What makes you so sure that the same thing will not happen again?? Even that could not be court-proof. And the named persons could immediately again influence it by summary proceedings.

Gercke: After a relatively short time of reviewing the files, it was already clear to us that we would be able to name very concrete, systemic, but also personal responsibilities. Of course, this will not be very pleasant for the archdiocese, but also for those who are still alive and responsible. We will not take any consideration there in the matter. The Cardinal knows that too. For me, for my team, this was also a basic condition for preparing such an expert opinion in the first place. I am not only a lawyer, but also a scientist as a professor at the University of Cologne. In this respect, false consideration is out of the question for me, if only with regard to compliance with scientific standards.

And again: As long as you do not indulge in speculations – and that is part of the basic standard of legal expert opinions – your expert opinion is also legally secure. You can report very unpleasant things. You can also name very unpleasant personal responsibilities. It just has to be proven on the basis of the documents or other evidence. And I was able to say very early on after the first inspection of the files: You have enough evidence. That is, it is not at all necessary to indulge in speculation. You can name very concrete responsibilities with the basis that you have.

Interviewer: The Munich law firm has identified 15 exemplary cases and used them to analyze the Archdiocese of Cologne's approach to sexual abuse. You do it quite differently. It must also be said that there are large data gaps, also because certain documents are simply missing. How did you proceed differently than the Munich office??

Gercke: First of all, it is important to me that I do not proceed alone, of course, but that a whole team from our law firm of lawyers and research assistants examines and evaluates these vast amounts of files. We are also supported because we don't have our own canon law expertise any more than the Munich law firm does. We are supported by two very renowned ecclesiastical lawyers. On the one hand Mr. Dr. Korta, who had already contributed to the 2010 study of the Archdiocese of Munich-Freising, and in particular by Professor Dr. Dr. Pree, who holds a doctorate in both theology and law and is considered one of the most outstanding, if not "the" canon lawyers in the German-speaking world.

At the beginning of our expert opinion, we first had to evaluate all the files. We are talking about 236 files, which are the so-called intervention files, but also the personnel files. There we are talking about tens of thousands of pages of paper. This is also the reason why law firms are usually commissioned with such a review, because we are used to evaluating large amounts of data and documents from our expertise. We have – this is a difference to the Munich study – first of all evaluated and presented all file processes in a first step, oriented to the standards of the so-called MHG study. The MHG study is "the" reference work for dealing with abuse in the Catholic Church from a legal point of view. This step has already been completed. In a second step, which is also a prerequisite for an expert opinion, we first described the archdiocese – the organizational structure, responsibilities – and of course the legal basis from secular criminal law and ecclesiastical criminal law. Whereby in the case of the latter we are represented by Dr. Korta and Professor Pree were supported. These steps have also been largely completed.

Now we are right in the middle of the core of the report, which is about the question of responsibilities, on the one hand systemic responsibilities. And what you mentioned, the question of file management, plays a very decisive role here. Record keeping is rudimentary. Of course, we can only work with the files we have. But the file management itself can already represent a responsibility, if it is just insufficient and does not allow any insight for third parties. That is one point, and the other point, the focus that the public is waiting for, that those affected are waiting for, also rightly, is of course the clarification of personal responsibilities of dignitaries of the archdiocese. So, what did the bishop know? What did the vicar general know? What did the head of the personnel department know, etc?. This is the core of the expert opinion. We are right in the middle of it.

In mid-January, we will probably be ready to start the hearings of the persons whom we will confront with concrete accusations. For us, this requires that we work through the Christmas vacations in a completely un-Christian way, otherwise we won't be able to do it. But as I said: From 11. and 12. Our interviews will start in January or. interviews, so that we can then also ensure that we are on 18. We will present the report in March.

Interviewer: You said just now that in your expert opinion also the "Case O.", which is discussed now everywhere, occurs. He does not appear in the Munich report at all. How can you explain that so much has now been made public and that this is already being discussed in such detail in public?? That is actually incomprehensible.

Gercke: I see it the same way you do. But in the end you are asking the wrong person. Nothing of mine has been leaked to the public. The public, of course, has the entire ie – rightly, one must say – "on its radar.". That is very much in focus. In this respect, I am not surprised. I think this is normal for the debate we are having at the moment.

Interviewer: Two spokespersons from the Cologne victim advisory board say they were instrumentalized to reject the Munich expert opinion. You yourself were present at the discussion between Cardinal Woelki, the vicariate general, the advisory board for those affected. How did you experience this and do you have any sympathy for the advisory board members??

Gercke: You raise a very delicate point, because the people concerned are of course different people with different interests and different feelings. It is difficult to have an insight from the outside, I don't think it is my place to do so either. We have said from the beginning that we will bring the people affected and their wishes and experiences into the report. And we are meeting regularly, by the way, with the affected people from the advisory council until the presentation of the report on 18. March and inform them about our current status.

Interviewer: With the entire affected advisory board, but there are yes two members resigned. They are no longer there. That must be painful.

Gercke: This is a debate that is being conducted in the Affected People's Council, and it is not my place as an external party to comment on it.

Interviewer: Now there are further video conferences, two have already taken place, with responsible church members from the archdiocese of Cologne, in which you were present – at least at the first video conference. There is information about the events surrounding the abuse report. How did you experience this evening?

Gercke: More than a dozen such videoconferences have already taken place with clergy and lay people who have responsibilities in the Archdiocese of Cologne. This is an ongoing process. And from the point of view of a lively church, that's not a bad thing either, that there's a lot of discussion, that there's committed debate, that uncomfortable questions are asked.

I am not in the Catholic Church myself, but I think as an outsider that it is good for the Church in general and the archdiocese in particular to have such a discussion on such an ie. In the conferences it became clear that the topic is very much on the minds of the parishes, the local church, and that people are dissatisfied, that they are agitated, that they have many questions and not always answers. We have heard there criticism of the crisis management of the archdiocese. But we have also heard a cardinal and a vicar general who have faced this criticism, accepted it and also admitted mistakes.

Interviewer: Can you understand the criticism of crisis management?

Gercke: This goes a bit beyond my role as an expert, but with the knowledge I have, which I would otherwise also have as an outsider, the criticism is certainly understandable.

Interviewer: I summarize this again. There seem to be two camps that are arguing fiercely right now. But actually, the Cardinal of Cologne and his opponents are all concerned with the same thing, as you have already summarized. And that is that the crimes and the cover-up of sexual abuse in the Archdiocese of Cologne should be unreservedly clarified. That is actually the basis. Can not the quarreling groups also find each other again in the sense of the victims, if they really wanted that? Because they actually want the same thing.

Gercke: You raise the crucial point. First of all, I think that hardly any other topic stirs people up as much, and rightly so, as the abuse of children and those in need of protection. And abuse in the church is even more extreme in people's perception than in other places, because the church, according to its self-image, is supposed to be a place of protection and guardianship of the weak, especially of children or those in need of protection. In this respect, the excitement, i.e., the fact that there is a dispute, is in my view only normal and entirely appropriate. The archdiocese must be able to deal with this and, of course, we must also be able to deal with this as evaluators.

I do not know at all, especially when I look at the recent debates and also the video conferences in which we participated, whether this is not even positive in the sense of the matter in the result, even if now often with insinuations, speculations – also with regard to our expert opinion – is worked. After all, it has led to the fact that we now receive calls almost daily from those affected, who tell us their story, who urge us to uncover everything, to work through everything, to present everything. I don't know if we can do it justice. An expert opinion on the basis of files is ultimately limited, but the discussion alone is something positive and in the interest of those affected.

And it is also clear that with the presentation of the report on 18. March must not be left to its own devices. Coming to terms with abuse in the Catholic Church in the Archdiocese of Cologne is certainly a long process, in which the expert opinion can only be one part of the journey.

The interview was conducted by Johannes Schroer.