Higher Regional Court – Frankfurt, Germany
Trial Monitoring Summary #36
Hearing Dates: March 7 and 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 36th trial monitoring report details days 59 and 60 of the trial of Alaa M. in Frankfurt, Germany. The first trial day of this week was dedicated to finalizing the questioning of the witness P12. However, before the witness entered the courtroom, the Defense attacked the press due to a previously published article in the German newspaper FAZ. Counsel Endres insinuated that the press disrespected the rights of the Accused. In the ensuing questioning of the witness, P12 testified about a few remaining questions by the Defense Team related to his prior statements, his asylum interview, and entries in his CV. On the second day, the Accused was asked about a SIM card confiscated by the police and the Court read out a file memo by the Federal Police following the mobile surveillance of M. The session finished with the questioning of the BKA chief investigator Mr. Deußing who appeared as an expert in the case.
Day 59 – March 7, 2023
This trial day was dedicated to finalizing the questioning of the witness, P12, the former colleague of M. Before the witness was asked to enter the courtroom, Defense Counsel Endres requested to give a statement. He was visibly agitated and started attacking the press. He referred to an article published the week before by the Frankfurter Allgemeine Zeitung (FAZ), a local newspaper with a wide audience and sound reputation. According to Counsel Endres, the article was inaccurate and certain details were false. He stated "If the accused will be acquitted, we do not know if it was him. If he gets convicted, we still do not know if it was him." Endres lamented that the press did not respect the presumption of innocence. He further stated that it played "an inglorious role" in this trial. While addressing his statement to the Judges and to the public gallery alternately, he warned that if this trial took place in the U.S., due to the notion of "contempt of court", it would likely be deemed a mistrial.
[Background note: According to U.S. Code, contempt of court refers to an act of disrespect or disobedience toward a court or interference with its orderly process such as disrupting court proceedings, disobeying a court order, or intimidating witnesses. A mistrial can be called by a U.S. court if a civilian jury is tainted by being exposed to inadmissible evidence. However, there are no jury trials in Germany.]
Plaintiff Counsel Reiger retorted that Counsel Endres should respect the freedom of the press even if he disliked the content. Presiding Judge Koller, however, agreed with Endres on the article published by the FAZ and took notice of Endres's statement. After being asked by the Presiding Judge, it turned out that Counsel Reiger had not read it, his statement was of a general nature.
[Note: The article was no longer available on the website of the FAZ on the day of the trial. The circumstances of the removal are unknown.]
After this 'opening statement', the witness was called to enter and questioned by the Defense Team which commenced but had not finalized its questions during the previous session. Defense Counsel Bonn was given the lead. Contrary to his team members, it was notable that he carefully selected the questions and choice of words forestalling a potential interference by the Judges. Nonetheless, several questions were rejected. Overall, the Defense was interested in clarifying uncertainties that arose concerning details from the police questioning with the BKA. Since some of the questions were rather administrative issues, they were postponed to the following day when the BKA investigator would testify. The Defense still wanted to know more about the persons whom P12 named as potential witnesses to the case. P12 mentioned one of his former colleagues several times and the Defense Team asked whether he knew his whereabouts. The witness denied. The Defense also asked if he knew where the person who allegedly falsely accused M. was currently located. The witness denied again.
After several reproaches with previous statements and memos from the files, the Defense asked about P12's written asylum interview. According to the files, P12 denied having witnessed or having been subjected to grave human rights violations or crimes in Syria.
[Background note: In the years 2014 and 2015, the German federal office for migration and refugees (BAMF) conducted speedy written procedures for persons fleeing Syria, Eritrea, and for persons belonging to certain minorities from Iraq. The written form substituted the interview in person. Asylum-seekers were required to answer certain questions by checking yes. The question, the Defense referred to, required the applicant to state whether he/she had knowledge about war crimes, crimes against humanity, offenses of combatants against civilians, executions and mass graves, and the use of chemical weapons.]
Since P12 checked the “no” box in the application form, the parties to the proceedings discussed if the hearsay he had testified about and the two small incidents which he eye-witnessed should have been considered for this question. The question remained unanswered.
At last, Defense Counsel Al-Agi and the Accused addressed certain details which P12 provided in his CV. Both wanted to know why he did not list the locations and the names of the hospitals where he was supposedly deployed. While P12 gave a reasonable explanation, M. repeatedly insisted on the fact that P12 did not mention that it was a military hospital pressing him to elaborate. P12 did not become flustered and reiterated his response.
At the very end of the session, following a complaint by M., Defense Counsel Endres apologized for his earlier statement that he did not know whether the accused was innocent or not and clarified that he continued to believe in his client’s innocence.
Day 60 – March 9, 2023
Day 60 of the trial against Alaa M. was dedicated to questioning the Accused related to a SIM card confiscated by the police, reading out a file memo by the Federal Police following mobile surveillance, and questioning the BKA chief investigator Mr. Deußing as an expert in the case.
After the session was opened, the Judges explained that a SIM card that was confiscated by the police when a search of the belongings of the Accused was inspected. As a result, the police discovered that it was registered under the name “Fazana Fazana”. Therefore, the Judges wanted to know why the SIM card was registered under this name and who this person was. M. explained that he did not buy the SIM card himself. Instead, he requested a relative to do so on his behalf after the allegations against him were raised. The relative, M. continued, bought the SIM card from an Afghan at a small shop in the city where he resided. He further explained that it was a pre-paid SIM card, it was active directly and he did not have to add any personal data or register. Hence, he could not give any details about the identity of the person or the circumstances of the name.
After M.’s explanations regarding the SIM card, the report by the BKA following the mobile surveillance of M. was read out. The police monitored four different numbers, three of them for about two weeks. The surveillance operation concerning one of the numbers was disconnected by the telecommunication company after one week because the police failed to submit the original judicial order. The report detailed several phone calls M. either made or received. These calls related to the accusations, background information, and M.’s efforts to leave the country. According to the evaluation by the police, most of the calls were detected as conversations with acquaintances regarding the Al-Jazeera documentary, Zaman Al-Wasl articles, and reports by the German newspaper Der Spiegel. The BKA report detailed that M. continued to deny all accusations. In the call, he provided potential explanations for why he was attacked. He mentioned again that he was falsely accused by a certain person because of M.’s Christian faith. The police identified the conversation partners and conducted background checks. One of the individuals had an extensive police record. M. was seemingly worried about this person’s criminal record and asked the Judges to explain their relationship after the file was read out. He clarified that he met this person in Germany where he maintained a mechanics shop. Their relationship was based on the repair of M.’s automobile and their mutual Syrian nationality. The Judges were not interested in any further details regarding the individual.
The BKA report detailed several other chat partners. One person was identified as a diplomat from the Syrian embassy deployed in Berlin. According to the file, he called M. to inform him that the return to Syria was confirmed. He offered M. to leave within two days, what M. declined. M. explained that he was not ready yet, but asked whether other travel dates were feasible. The diplomat could not assure him of alternatives. Subsequently, M. provided further statements about the persons and events, however, circled around the same arguments why he was rejecting the accusations against him.
The last part of the trial day was dedicated to the testimony of BKA chief investigator Deußing who was summoned as a witness to the case. Mr. Deußing conducted the first police interrogation of the witness P12 and was asked to provide details related to the content and the administrative circumstances. The Judges pointed out several times that they knew Deußing’s work method was accurate and meticulous. Upon inquiry by the Presiding Judge, Deußing clarified that most of what he recalled was a reconstruction from the file documents rather than his memory of the day. Essentially, Deußing confirmed all details which were noted in the minutes. When discrepancies arose between P12's statements with the BKA and his testimony in-court, Deußing explained that he was unable to judge any information beyond the questioning he conducted himself.
After the Judges terminated their inquiry, and the Prosecutor and the Plaintiff's Counsels did not pose any questions, the Defense Team raised a few. While most of the questions appeared insignificant, one question stood out. It was noted that Deußing asked P12 whether he spoke to a certain colleague about the Accused. The witness vigorously denied. Yet, in court, P12 testified that he had a conversation about the rumors of torture and ill-treatment concerning M. Deußing was dismissed upon confirming that P12 was so assertive in his reply that he did not ask further questions. The Defense was noticeably satisfied with his reply.