50 years ago today: The Contergan trial

Fifty years ago, on May 27, 1968, the so-called "Contergan trial" began before the Grand Criminal Court of the Regional Court of Aachen.

  Historical picture of the criminal trial before the Aachen District Court

 

For families affected by thalidomide and Grünenthal, the trial is an important milestone in the history of the tragedy, chiefly because a solution that continues to exist today was then, but independently of the trial, worked out for the permanent financial support of affected people in 38 countries. For the United Kingdom, however, the trial had no consequences. In UK Grünenthal’s licensing partner was responsible for marketing the drug and therefore continues today to financially support those affected.

The criminal trial against nine senior Grünenthal employees is still considered one of the most complex trials in German legal history. The public prosecutor's office needed almost six and a half years of investigation to prepare an indictment. The subsequent proceedings lasted another two and a half years, including 283 trial days. During this time, the court heard numerous witnesses and experts and evaluated more than 600,000 pages of documents. These figures show how complex and difficult the questions were and why, with no end in sight, the court chose to conclude the proceedings.

Intensive examination of the question of guilt

The goal of the criminal proceedings was to determine whether the accused Grünenthal employees should be deemed responsible for the effects of the tragedy. Because it was a criminal case, the families concerned would not have received compensation even in the event of a conviction. They would have had to claim this in a subsequent, separate - presumably long-lasting - civil court case.

In examining the question of guilt, the public prosecutor's office analysed whether the responsible persons at Grünenthal were to be accused of not or only insufficiently testing the substance. The judges found that this was not the case. Teratogenicity tests on animals were not common in drug development at the time. These side effects were not even considered by the pharmaceutical industry in Europe, as the discoverer of thalidomide, Dr. Keller, described in court:

"The whole thing is an absolute novelty. (...) I want to say here that I simply did not think of a teratogenic effect at that time. And I wasn't the only one who didn't think of it - nobody at Chemie Grünenthal, nobody in the entire pharmaceutical industry thought of it."

Only after the worldwide market withdrawal of thalidomide-containing drugs were scientists first able to prove the damaging effect of thalidomide on fetuses in targeted trials on White New Zealand rabbits.

 

Termination of the proceedings

On December 18, 1970, criminal proceedings were discontinued by the court with the consent of the public prosecutor's office. Five independent judges substantiated their decision in detail in almost 100 pages. A prerequisite for the termination of the proceedings was that the court would at best have determined a "minor culpability." The potential duration of the continuous search for a culprit and the possible conviction of individual defendants were no longer proportionate. After all, the court had not succeeded in resolving the question of guilt within 283 days of proceedings.

As a further reason for terminating the proceedings, the Criminal Court also mentioned "a lack of public interest." What sounds cynical at first becomes clearer against the background of the settlement that was reached parallel to the trial. The judges justified this argument with the fact that a solution for the lasting financial provision for the children damaged by thalidomide had been found. To this end, the German government founded the "Hilfswerk für behinderte Kinder," for which Grünenthal and the government provided the financial means. All those involved saw this as a sound solution for those affected. Media also chimed in, as an article from the German magazine DER SPIEGEL, for example, shows.

No political interference

Individual victims and observers see the settlement reached between Grünenthal and the parents, as well as the law that led to the foundation of the "Hilfswerk für behinderte Kinder," as interference by the state in Grünenthal's favour. They allege that this led directly to the termination of the criminal proceedings and was intended to deprive those concerned of the opportunity to bring civil lawsuits for damages against Grünenthal. The aim of these speculations is to enforce claims for compensation from the German government.

This alleged state interference in the trial has never existed and, in view of the separation of powers and the German legal system, has no basis whatsoever. The court was and is solely responsible for the termination of a case. From a legal standpoint, a directive "from higher up" simply cannot occur. Journalists from DER SPIEGEL, for example, who were following the proceedings closely, repudiated in their reporting similar rumours that existed at the time.

Supporters of the interference theory bring up Josef Neuberger's role as an example to support their claims. The accusation is that Neuberger, a lawyer and SPD member of the North-Rhine Westphalian state parliament, took over a defense mandate for one of the soon-to-be-accused, only to be sworn in a few weeks later as the new Minister of Justice of North Rhine-Westphalia. In this position, according to the conspiracy theorists, he then advocated for the termination of the criminal trial. However, there was no exertion of influence in favour of Grünenthal employees. The official legal charges were only brought against the Grünenthal employees when Neuberger was already Minister of Justice. Moreover, when Neuberger took over the defense mandate, it looked as if the FDP would be the party to appoint the Minister of Justice and not the SPD, of which he was a member. For this reason, he did not see any impending conflict of interest when he assumed the mandate. More importantly, on the first day in his new position as Minister, Neuberger immediately drew a "red line" between his activities and the trial: All employees of the ministry were instructed that all documents and information concerning the thalidomide trial should be sent to the state secretary and withheld from him.

 

Help for the affected families

Regardless of the potential outcome of the proceedings, it was a concern of all parties involved that a solution had to be found to the most urgent problem: helping the families affected and providing them with financial security.

Independently of the criminal proceedings, such a solution was being drawn up. On April 10, 1970, Grünenthal reached a settlement with the parents, according to which the company paid 100 million DM (approx. 51.13 million Euro) into a foundation. In addition to the 100 million DM from the company, another 100 million DM came from federal funds. The establishment of a foundation was considered the best solution so that the families could receive the money, while circumventing the legal claims of health and nursing insurance providers to the same funds. To accomplish this, the German Bundestag and Bundesrat had to pass a corresponding law.

Today, the solution created in 1972 is still the basis of a financial support system for people affected by thalidomide in 38 countries, who now receive their benefits through the "Contergan Foundation." In the United Kingdom, a separate support system has been built up.