The Koblenz Trial and the trial of Alaa M. in Frankfurt are the first time that Syrians are witnessing affiliates of the single largest perpetrator in the conflict, the Syrian government, being held accountable. Given the long wait for such trials to start and their low number, there is a considerable interest by Syrians in following developments in these trials.
Nonetheless, at the court’s request, SJAC was obliged to take down its detailed reports of the Alaa M. trial and will instead publish summaries of each trial day. This highlights tensions between two important principles: transparency and the integrity of trial proceedings. While cognizant of the need to ensure that witnesses are not unduly influenced prior to their testimony, courts must also guarantee the right to a public trial and provide court reporters sufficient, and consistent, guidance on limitations as well as the legal basis for those restrictions.
The Court hearing the Alaa M. case in Frankfurt has repeatedly discouraged journalists from publishing detailed information about the trial proceedings. Prior to the start of the trial, the Court decided that only accredited press representatives and persons with a proven academic interest in the trial, were allowed to take notes during the sessions. All others could be present but could not have electronic devices, nor pen and paper to take notes. This decision was criticized for being insufficiently reasoned to justify a restriction on the right to a public trial.
When the trial commenced, the Presiding Judge addressed the public gallery, reminding journalists not to publish more details on the case than what was already circulating in the media. He stated that anyone taking notes would be summoned as witnesses during the trial should any information be shared with the public.
Once SJAC has reached out to the Court in an attempt for clarification, the Court’s Press Officer then contacted SJAC on behalf of the Presiding Judge, requesting that SJAC’s detailed trial reports be removed from its website in order to protect the integrity of the trial proceedings. SJAC acceded to this request and removed its detailed reports, despite the fact that it had published similar reports throughout the Koblenz Trial against Anwar Raslan. These can only be released at the end of the proceedings in the trial of Alaa M. For the time being, SJAC is obliged to limit its reporting to summaries of each trial day.
Nonetheless, the Alaa M. defense team informed the court that other detailed reports of the first several trial days remain online in Arabic. It further indicated that Alaa M. would no longer be willing to answer questions on the subject matter of the case, as long as it is not transparent who has access to his statements. The Presiding Judge noted that he takes very seriously concerns about interference with future testimonies and risks to the safety of witnesses, noting that he might prohibit journalists access to phones and laptops inside the courtroom to prevent recording of the proceedings.
These developments raise the question of how to balance the right to a ‘public trial’, and to ensure the transparency that is so crucial for UJ proceedings and transitional justice, against valid concerns about witnesses’ security and the integrity of trial proceedings.
Right to a Public Trial and Protecting the Integrity of Proceedings
As noted by the UN Human Rights Committee, the right to a public trial is designed as a safeguard against secret or arbitrary justice and to ensure scrutiny over the judiciary. Nonetheless, the right to a public trial is not absolute and may be limited where dictated by morals, public order, national security, private lives of the parties to a trial, and the interests of justice. This needs to be done on a case-by-case basis and a court must carefully weigh any of the limiting factors against the public interest and transparency of proceedings, as the European Court of Human Rights has confirmed. Holding a non-public trial is therefore the last measure and only applied in trials of juvenile perpetrators. Courts may resort to other measures in certain cases, such as excluding the public from individual trial sessions, performing security checks on the public audience, or anonymizing witnesses.
With the Syrian government and other parties still exercising control over certain territories in Syria, the safety of witnesses (and their families) in such trials is of utmost importance. They may testify anonymously to prevent their names from entering the public sphere. In addition, journalists generally use pseudonyms when referring to witnesses as part of public reporting, unless witnesses agree to reveal their names. In producing trial reports, SJAC also redacted all identifying information of witnesses and other persons being mentioned in court.
Another primary goal of a criminal trial is to establish the truth in order to assess the individual liability of the accused. Everything that could interfere with the truth, such as intimidating or otherwise influencing witnesses is therefore considered as violating the integrity of proceedings. This principle has particular resonance in trials of core international crimes as they offer redress to those directly affected by specific crimes at trial and to an entire society that suffered due to the scale of the crimes. In light of these interests, international courts and tribunals generally create transparency by broadcasting trial sessions and compiling all relevant information and updates on individual cases on their websites.
Only when UJ trials are transparent and accessible to Syrians can they effectively contribute to transitional justice. The public interest that comes with these proceedings must therefore weigh heavily against potential limitations to publicity and lead to less restrictive measures and resource to other tools to ensure the integrity of proceedings and bodily integrity of witnesses.
In order to ensure transparent UJ proceedings in Germany and elsewhere, domestic courts should learn from the practices of international courts in balancing publicity of a trial against the integrity of proceedings and safety of witnesses.
The ultimate responsibility to balance a public trial and the integrity of proceedings and bodily integrity of trial participants lies with the court and the prosecutor. However, little guidance is provided by German law in exercising this discretion. The German Press Codex provides non-binding guidance in this regard which is a starting point. It states that news bans are not acceptable, but agreements between journalists and public authorities may be entered to protect the life or health of victims and survivors. It further states that the press must follow the prosecution requests to terminate or suspend reporting for a limited time in order not to hinder prosecution efforts as long as the request is “convincingly reasoned.” However, these provisions leave too much discretion to the courts. Furthermore, court decisions limiting public access to a trial should be appealable to provide for more legal certainty for anyone reporting on UJ trials.
The judiciary and journalists must work together to come up with practicable solutions to ensure freedom of press and transparency while at the same time taking into account precise negative impacts of media reporting on ongoing criminal proceedings. In the end, we are all working towards the same goal: holding all perpetrators of core international crimes accountable through fair and impartial trials that establish the truth about the individual acts of defendants. Only then can criminal proceedings shed light on various aspects of the Syrian conflict and effectively contribute to transitional justice.