Inside the Alaa M. Trial #60: Al Agi on the Defensive

Higher Regional Court – Frankfurt, Germany

Trial Monitoring Summary #60

Hearing Date: November 7 & 9, 2023

CAUTION: Some testimony includes descriptions of torture.

Note that this summary is not a verbatim transcript of the trial; it is merely an unofficial summary of the proceedings.

Throughout this summary, [information located in brackets are notes from our trial monitor] and “information placed in quotes are statements made by the witness, judges or counsel.” The names and identifying information of witnesses have been redacted.

SJAC’s 60th trial monitoring report details days 101 and 102 of the trial of Alaa M. in Frankfurt, Germany. On the first day, the questioning of P26 resumed. The Judges found that some of the witness’ and the Accused documents were almost identical. Both, the witness and the Accused, explained that this was common in Syria. The witness was not certain whether patients were mistreated at the hospital as alleged in the media, and said he was neutral and did not like politics. The Judges questioned him about his uncle, whose name was on the sanctions list for allegedly having been involved in the bombing of Al-Ghouta with chemical weapons. The witness denied knowing who was responsible for that. The Defense Team was not pleased by his testimony concerning the patients' mistreatment, as he declared his lack of knowledge regarding the matter. After several questions by the Accused, the Presiding Judge announced the end of the witness’s questioning.

On the second day, the Judges asked the Accused for clarification in regard to a document concerning one of the plaintiffs (P4) which the Defense submitted to the court. After that, Defense Counsel Al-Agi was questioned about the origin of the documents he submitted to the court and how he obtained them. It turned out that Al-Agi discussed the matter of P4 with a dubious lawyer in Syria as well as with the Accused’s father, who filed a defamation complaint against P4 in Syria. Al-Agi came unprepared to the session which led to a poor performance in court, for which the Presiding Judge reprimanded him. Among others, he accused Al-Agi of lying about a certain matter; communicating with the Syrian Intelligence Services; and being the reason for the witnesses’ intimidation as well as receiving threats because of leaking information about the trial. The Judges' anger was evident during the questioning that included rebuking Al-Agi and describing him as a disappointment. The Judges marveled at Al-Agi’s ignorance of the basics that a lawyer should know. After his poor performance, the Judges concluded the questioning of Al-Agi. The Judges then displayed a document to be translated and examined in court and decided to complete the process in a later hearing.

Highlights:

Day 101 – November 7, 2023

On this trial day, the questioning of P26 resumed. The Presiding Judge started the session by referring to what he had concluded the previous session. The Judge had indicated that P26 could still correct something in his testimony. P26 said he had rather a clarification of his testimony. P26 explained that in his CV, he did not mention that he worked in the Al-Mazzeh Military Hospital and only mentioned Tishreen because he wanted his CV to be brief and because many others who came to Germany did the same. When the Judges displayed the CV of P26’s colleague and their motivation letters on the screens, it became clear that this colleague did the same; he did not mention Al-Mazzeh Military Hospital and his letter matched P26’s verbatim. P26 justified that everyone only mentioned Tishreen because they received their certificates from there, and that the letters were matching because they used the same template. Furthermore, P26 explained that the other thing he wanted to clarify was the fact that his father helped M. regarding problems he had with some documents pertaining to postponing the military service.

After ascertaining that the relationship between P26 and M. was still close, Presiding Judge Koller wanted to know how P26 reacted when he learned about the accusations against M. P26 said he did not take the matter seriously at the time because M. was his friend and he did not hear of mistreatment by M., adding that he was shocked when M. sent him the Al-Jazeera video. Koller wanted to clarify whether P26 meant that he had not heard about mistreatment by M. in particular or in Syria in general. P26 replied that a lot of material was published by the media and on social media platforms. Koller asked if P26 knew the photos from the Caesar files. P26 replied that he only saw some, not all, of them but neither completed them nor fully watched the Al-Jazeera report on M. Koller wanted to know if P26 thought these things were not true. P26 responded that he had not seen anything personally and thus did not know if they were real or if they actually happened in Syria. Judge Koller asked about P26’s stance on Bashar al-Assad’s regime. P26 said that he was neutral and did not like politics, adding that he did not participate in pro- nor anti-regime demonstrations.

After the Judges discussed during a short break, Presiding Judge Koller informed the witness that he had the right to refrain from answering questions if they would subject him or one of his relatives to legal prosecution, in accordance with Sections 52 and 55 of the German Code of Criminal Procedure. Koller said that P26’s uncle was on the sanctions list because he was involved in bombing Al-Ghouta with missiles and chemical weapons in 2013 — when P26 was still in Syria — which resulted in nearly 1,400 civilian casualties. Koller wondered if P26 had something to say. “What should I say? A lot has been said,” P26 replied then added that he did not know many details and that the government and opposition accused each other. Koller wanted to know if P26 had heard about it. P26 responded that he heard but did not see [the bombing], and when someone hears the opposition media, one sees a one-sided narrative, but when one hears the government media, a different account is provided. Koller acknowledged that P26 could remain neutral regarding what happened in Syria but could not believe that it was possible when it comes to bombing civilians with chemical weapons. P26 replied that he heard about it in the media and that each party blamed the other one. P26 added that he was sorry for those who died, but he did not know who was responsible.

Subsequently, Defense Counsel Bonn started the Defense Team’s questioning by recalling that P26 mentioned seeing shackled and blindfolded patients in Al-Mazzeh Hospital. Bonn wanted to know if P26 talked to his colleagues about this matter and about the mistreatment or torture of patients in the hospital. P26 said he never talked to his colleagues about it. Bonn responded that he did not believe P26 and wanted to know P26’s stance on what he saw. Defense Counsel Endres interjected by asking what P26’s stance was on the matter as a doctor. P26 said he had nothing to do with these patients. Despite reminding the witness of his duty to tell the truth and give full testimony, Koller had the impression that P26 did not fulfill his duty. P26 said that he did not remember much and suggested that the Court should ask people who worked with M. in the same hospital as they might have more information. P26 then named some doctors who worked with M. in Syria and currently work in Germany, and the Judges noted down their names.

At the end of the session, the Accused questioned the witness for the first time in Arabic. The Accused's interpreter was asked to translate M.'s questions into German. M. named some doctors and asked P26 to tell the Court what he knew about them. M. then reminded the witness of a specific occasion from which he concluded that P26 and his family left Damascus and stressed that the witness’s brother was among those who left. The witness affirmed recalling that occasion. [Note: The Accused’s interpreter made many translation mistakes. He seemed to be so distracted that M. almost changed his mind and asked his questions in German].

Before the Presiding Judge ended the session, the witness admitted that he had discussed some content of the sessions with his brother [who would later appear as a witness], however they did not speak about everything. P26 apologized and said he did not know that he should not talk to someone else about it, since no one told him that. The Presiding Judge said he understood the situation and already knew that it was unreasonable for the witnesses to never speak about the matter, then adjourned the session.

Day 102 – November 9, 2023

The Judges started this day’s session by displaying the CVs of P26 and his colleague as well as the letters of motivation of both them and M’s. The Judges noted that they were identical and requested an explanation from the Accused. M. said this was a common practice and all doctors used a template. M. explained that at that time, a person had to pay an office that dealt with embassies in order to obtain the template. Nonetheless M. and others preferred to get the template from the internet for free, as it was uploaded by a person who previously went through the process.

Subsequently, the Judges referred to the document that details the verdict against P4 who was convicted of theft and wanted to hear what the Accused knew about it. M. explained that his father filed a complaint against P4 before M.’s habeas corpus [note: habeas corpus refers to the court order directed at the custodian by which a summons is enforced. It protects the person in custody from indefinite and arbitrary imprisonment]. M. turned to his Counsel Al-Agi and asked for permission to disclose information, Al-Agi nodded in affirmation. M. explained that Al-Agi told him that the lawyer “Tony” [note: the lawyer’s name was used in the hearing, he will thus be referred to by this name throughout the report] called him and told him that he had found a conviction against P4. Two days later, Al-Agi informed M. that he was now in possession of the conviction document. M.’s Defense Counsel then discussed the document before sending it to the investigating judge at the Federal Court of Justice, Dr. Sturm, and they found contradictions between some information in the document and P4's previous statements.

After a brief break, Defense Counsel Al-Agi took the witness stand. Presiding Judge Koller explained that Al-Agi had been released from the professional confidentiality between him and the Accused, Alaa M., in accordance with Section 53 of the German Code of Criminal Procedure. Koller added that the Court will question Al-Agi regarding the “origin and procurement” of documents he submitted to the investigating judge. The documents included:

1) Verdict against P4 from 2012, submitted by Al-Agi on October 10, 2020

2) A letter from the Immigration and Passports Department about P4’s journeys outside the country issued at the request of the court in Syria in 2012, submitted by Al-Agi on September 6, 2023

3) Excerpts from various electronic documents, submitted by Al-Agi on June 15, 2022

The Judges proceeded with questioning Al-Agi by asking him about the origin of the verdict detailing the conviction and how he obtained it. Al-Agi explained that it was not from lawyer Tony, but perhaps the Accused’s uncle. Al-Agi said that when he received a copy of the conviction, he found discrepancies between information in the document and P4’s previous statements. Therefore, Al-Agi asked for a certified copy of the document, which he later received via email, and a copy was sent to a translator. Defense Counsel Endres' efforts to help his colleague Al-Agi were in vain, as he told Al-Agi that he did not have to recount the details of what happened after receiving the document, but Judge Koller said that everything, including the translation of the documents, was part of the substance of the questioning. Koller was surprised at how Al-Agi received an uncertified digital document and assumed that its content was authentic even though Al-Agi did not have the original document to compare them. Koller was astonished that this would come from a lawyer.

Judge Rhode indicated that the German Public Prosecutor's Office had previously asked Al-Agi how he obtained that document, and Al-Agi replied that he had obtained it in Syria. Al-Agi was unsettled, and Judge Koller told him that he was not telling the truth and he is now giving a false testimony in court. Al-Agi faltered, giggled, and wondered how. Koller reprimanded Al-Agi for laughing and told him that he testified in court that the document had been sent to him while he was in Germany. Al-Agi denied and faked a laugh again. This angered the Presiding Judge, who rebuked Al-Agi, pointing out that he laughed again. Koller said that this was not a laughable matter and Al-Agi should be careful because he did not understand how serious the situation was for him. Al-Agi tried to justify that it was an issue of interpretation, but Koller interrupted him, saying: “You said, ‘It was sent to me’.”

In the ensuing questions, the Judges asked about the document issued by the Immigration and Passports Department. Al-Agi explained that the document was issued because the court wanted to gather information about P4 and investigate him and whether there were any criminal records against him. The Judges wanted to know when Al-Agi saw those documents. Al-Agi explained that he met together with the lawyer Tony in Syria in mid-June 2020 when Tony showed him a copy of the case file against P4. Al-Agi added that the file contained certified and uncertified copies of the documents. After their four-hour meeting, Al-Agi sent M.’s father copies for translation. When the Judges asked Al-Agi when and how M.’s father sent the translated copies to him, Al-Agi could not determine the exact time, nor could he be sure whether M.’s father came to him and delivered them personally or sent them by mail. The Presiding Judge was agitated and began banging on the table while reminding Al-Agi that he had been informed when he was going to be questioned about the origin of those documents many days ago, yet he came unprepared. Al-Agi responded that he was not asked about the origin of the documents, but rather about when he received them. Frustrated, Judge Koller rebuked Al-Agi and wondered how a lawyer could not understand the meaning of the word “origin,” adding that he should have asked the court interpreter to translate for Al-Agi in that case. Koller noticed M. shaking his head and told him that he had the right to shake his head if he had such a lawyer.

Judge Rhode noted that Al-Agi met with the lawyer Tony in mid-June 2020, and wanted to know when Al-Agi first contacted Tony regarding P4’s case. Al-Agi estimated that this must have been early 2020. Rhode wanted to know the reason for Al-Agi’s trip to Syria at that time. Al-Agi explained that it was a private trip. Rhode concluded that this meant that Al-Agi discussed the matter of a potential witness in the trial when P4's summons to appear in court was already scheduled with Tony. Judge Koller reminded Al-Agi that he had a duty to provide complete answers. Al-Agi did not deny, remained silent and started thinking. Rhode repeated his question. Al-Agi reflected silently for a while, then confirmed Rhode’s conclusion. Rhode asked Al-Agi if he deemed what he did right. As Al-Agi was about to answer, the Presiding Judge interrupted him, saying, “Very good, Al-Agi! What a trustworthy person!”. Cynically, Koller pointed out that it was a good idea for Al-Agi to share information from the case file about witnesses who were summoned to appear at the trial and leak it to people in Syria. Koller added that he now knew the reason for the threats that the witnesses received during the trial. Koller directly and firmly asked Al-Agi whether he was communicating with the Syrian intelligence. Al-Agi denied, stammered, and then said that making such an accusation against him was unacceptable. Koller silenced him, saying that he was not waiting for Al-Agi to tell him what was acceptable and what was not. Koller added that he wanted to say something but would keep it to himself for the time being. Al-Agi replied that Koller should disclose what he had because he was ready.

After a short break during which the Judges discussed, Defense Counsel Endres handed certified documents pertaining to P4 over to the Judges, emphasizing that the Defense Team had received these certified copies on this day, minutes ago. The court interpreter was asked to approach the Judges' bench to read and translate some of the stamps and information included in the documents.

The last thing the Judges dealt with were excerpts from electronic documents, some of which related to M. and his military service booklet. Judge Rhode asked how Al-Agi obtained those documents. Al-Agi replied that M.’s father handed those documents to him, as indicated in the document’s text. Judge Rhode was surprised and said that it seemed to him as if Al-Agi himself went to get those documents. Judge Koller went on to read a sentence in which it was written, “Not a word by the father.” [The trial monitor does not know whether the sentence was part of the document or email that Al-Agi sent to the Judges]. Al-Agi responded that he had no contact with the Military Administration. Koller wanted Al-Agi to point out where it was written that the father went to get those documents. Al-Agi said that it was either M.'s father or uncle. Al-Agi began rummaging through the papers in front of him on the table, desperate to find anything to back up his claim. Eventually, Koller handed him the documents that the Judges had - which Al-Agi previously submitted to the Judges himself - but he did not find what he was looking for. Koller concluded that M.’s father was not the one who went to get the documents. The truth was revealed and Al-Agi confirmed. Koller explained that this was essentially his question, as Koller wanted to know who communicated with the Military Administration. “You have disappointed us,” Koller continued. “I will tell you who went to get them. It was you. You went to the military department yourself.” Al-Agi denied and told Koller that this was not true, no matter how often Koller would repeat it.

When it was the turn of the Prosecution's questioning, Prosecutor Zabeck focused her questions on the lawyer Tony, as it was irresponsible for Al-Agi to discuss the names of witnesses and their sensitive information with dubious people. Al-Agi’s colleagues, Endres and Bonn, agreed with her. Zabeck wanted Al-Agi to share what he knew about Tony. Al-Agi said that he knew Tony's office in Homs. Al-Agi added that he laterlearned from M. that Tony was related to M.’s family, in addition to the fact that M. knew Tony even before he came to Germany. Zabeck summarized the situation by saying that Al-Agi met a lawyer in Syria with the intention of taking documents from him to submit them to the German authorities. Zabeck wanted to know if Al-Agi assessed whether the person was trustworthy. Al-Agi assumed that Tony verified the documents himself. Zabeck concluded that Al-Agi's impression was that Tony was a trustworthy person, which Al-Agi confirmed. Zabeck quoted from the case file information provided by the Federal German Criminal Police Office (BKA) about Tony's Facebook account. According to the file, Tony followed a pro-Assad person on Facebook and publicly shared a post praising Assad which the person had published. That speaks volumes about Tony's reliability, according to Zabeck. Al-Agi wondered if Zabeck wanted him to describe Tony as a bad person, adding that he did not know Tony's political views.

Defense Counsel Bonn concluded the questioning of his colleague, Al-Agi, with a few questions. He asked whether Al-Agi recalled that the Defense Team felt that it had to be cautious because it was not sure whether the verdict document was authentic. Al-Agi recalled that they discussed the matter several times. When Al-Agi’s questioning ended, Judge Koller dismissed him and Al-Agi returned to the Defense’s bench.

After that, a document showing a verdict against P4 was displayed in court. The linguistic expert translated as much as possible until the end of the session. The linguistic expert pointed out grammatical and spelling errors in the document. The Judges were particularly interested in errors that should not be common in an official document because they wanted to assess the authenticity and reliability of that document and evaluate how probable it was that it had been forged. The document indicated that the court in Syria acknowledged that P4 did not confess to these accusations when he was brought before the court, but rather stated that those confessions were extracted from him by beating and torture. Translating and examining the document was not completed in court on this day. The Judges decided to postpone the procedure to the next session, and today’s hearing was adjourned.

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