Inside the Alaa M. Trial #50: Confusion and Misunderstandings

Higher Regional Court – Frankfurt, Germany

Trial Monitoring Summary #50

Hearing Date: July 18 & 20, 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 50th trial monitoring report details days 83 and 84 of the trial of Alaa M. in Frankfurt, Germany. The first trial day this week was dedicated to questioning P19. The witness testified that he learned about the case against M. through a media report. When he understood that he was present at certain places and moments, he contacted Anwar al Bunni. Al Bunni’s organization conducted an interview via Zoom with P19 in Arabic which was summarized, translated into German and forwarded to the Court. After learning about the lack of certain minimum standards and the circumstances of its creation, the Judges deemed the transcript insufficient to continue the testimony on this day. Frustrated, the Judges requested the original version and the Zoom recording.

[Note: To protect the integrity of the trial, SJAC pursues a policy not to publish trial reports until a witness’s testimony is completed. Based on this practice, the reports detailing P19’s testimony were withheld until the witness was dismissed. As a consequence, the publication of the trial sessions following P19’s testimony is delayed. To accommodate the right to information for the public in a timely manner, it should be noted that Al Bunni was summoned as a witness and testified on September 7, 2023, about the circumstances of the interview with P19. Trial report #54 will detail his testimony.]

On the second day, the witness forwarded the Zoom recording which will be translated and introduced to the proceedings in one of the following sessions to remedy the inadequate transcript. Moreover, the witness was given space to elaborate extensively on something he wanted to tell the Court urgently. The witness meandered once again and had to be interrupted which caused disagreement among the parties to the proceedings. Eventually, the important fact the witness so urgently wanted to share was that in a conversation about M., a third person who knew M. said that he was more malign than others. At the end of the session, P19 urged M. to wake up and lighten his conscience, at least for his country. From this testimony, the Defense concluded that M. was only a symbol of terror.

Highlights:

Day 83 – July 18, 2023

This trial day was dedicated to resuming the questioning of P19, the witness who started to testify in the previous week. Before the witness entered, the Judges informed the parties to the proceedings about an issue related to the questioning of P15. He was interviewed by CIJA and the local police of a third country. The Judges had difficulties obtaining the CIJA interview and summoning the police officers through a mutual legal assistance request. To facilitate the process, they asked for consensus, primarily by the Defense Team, not to summon any officers but to introduce the documents in their original language and summon a linguistic expert for the read out in court. The parties will provide their opinions the next hearing day.

After the witness entered the courtroom, he was questioned about his detention which consisted of several different stations. The Judges had covered the first station and its relation to the indictment in the previous sessions, therefore, they asked P19 to provide a summary of what he experienced after the release from the first site. The Judges were particularly interested in information related to his cousin. The reason for this was that P19 had already explained that his cousin was detained with him, but they were not released together. Instead, approximately one year ago, P19 and his family identified his cousin as one of the victims in the Caesar Files [see Trial Report #42 for the forensic analysis of the Caesar Files]. The Judges gave P19 generous space to elaborate, but he continuously drifted off and explained several events, background information, and circumstances in such detail that the Judges deemed it necessary to interrupt him. They asked P19 to focus more precisely on the relevant content and answer questions concisely. Seemingly immune to the instructions by the Judges, P19 continued to excessively describe his experiences. He spoke about his detention at one of the sites, a military trial, an ensuing civil proceeding, and that he was released primarily due to the assistance and pressure from the UN observers. None of the information was directly related to the indictment.

The Judges further wanted to know what long-term consequences P19 suffered. The witness explained that the torture caused severe head, back, and neck pain and which resulted in a 30% disability. While the witness spoke about his serious health issues, Presiding Judge Koller noticed two spectators who apparently laughed. The Judge scolded them for their insensitivity and wanted to know their names. He also presumed that they had a connection with Defense Counsel Al-Agi who spoke to them during the break. Counsel Al-Agi denied knowing them and explained that he had a conversation because one of them was a lawyer colleague which referred to the profession generically not to a personal relationship. The spectator told the Presiding Judge his name and said that he attended the trial simply for interest. After the issue was resolved, Defense Counsel Endres declared that the Defense will not accept the medical condition of P19 without an independent medical assessment. The statement caused a discussion between the Judge and Counsel Endres due to the lack of empathy. Judge Koller acknowledged that the Defense had the right to pursue this request, yet he expected a more sensitive treatment of victims of torture at the moment of their testimony.

Upon return from a break, the witness provided the photograph of his cousin from the Caesar Files. He showed it to the Judges and identified the person depicted as the cousin with whom he was detained. The photograph was not shown to the public since the Court considered it to be particularly disturbing and wanted to protect the honor of the dead.

The Judges then started to question the witness about the time and circumstances when he learned about M. for the first time. P19 recalled the reports online that detailed the accusations which were familiar to him. P19 explained that after he noticed that he was present in certain places and had information about M., he contacted al Bunni. Al Bunni’s organization invited the witness to an interview which was conducted, summarized, and translated. The translation of the summary was forwarded to the court and available to them. However, minimum standards regarding an adequate questioning that includes a retranslation and the possibility to make corrections by the questioned person were not guaranteed by Al Bunni’s organization. The witness explained that it was sent to him in Arabic, and he made minor corrections, however, this was done after it was translated into German and forwarded to the Court. This resulted in the rejection of the transcript as a suitable basis to proceed. Frustrated, the Judges determined that it cannot be used meaningfully to confront P19 with its content. Due to the low quality of the documentation and the circumstances of its creation, it could only be considered a draft, not an official transcript. The witness also promised to forward the Arabic version to the court. Since the witness mentioned that the questioning was conducted via Zoom, the Judges want to find out whether a recording of the conversation exists which could be used by the Court.

Due to this issue the trial day ended without the possibility to clarify discrepancies that arose between the details P19 gave related to M. and his role in the "team of doctors". While the witness was 100% sure about another doctor, it remained unclear if the information the witness gave about M. was hearsay or if he in fact saw him in the respective moments.

Before the Judges adjourned the session, the witness indicated that he wanted to tell the Court something connected to M. that he had not yet mentioned. Curious on the one hand, but slightly irritated on the other, the Judges closed the session and promised to give the witness time to elaborate on the following day.

Day 84– July 20, 2023

This session started late, and the Judges explained that they tried to access the video recording from the questioning of P19 by Al Bunni’s civil society organization, but the Court’s Firewall did not permit them to open it. Presiding Judge Koller asked the linguistic expert to open and translate the Zoom recording.

The last session ended with a comment by the witness who returned on this trial day. He indicated that he wanted to tell the Court something that he was not yet able to express. Judge Koller promised to give him sufficient space at the beginning of the next session. Without any further information about what the witness would tell the Court, P19 was given the word and started speaking freely about something believed to be important and related to M.’s name. Approximately 45 minutes later, it remained unclear how P19’s testimony was connected to M. The Presiding Judge and the Defense Counsels were confused because without knowing where the testimony was supposed to go, it was difficult to follow the details given by P19. Confusion and misunderstandings about the content remained a challenge on this trial day - not only due to the manner in which the witness narrated but also due to several translation errors by the interpreter and interruptions by the Judges before the full response was given and translated. Striking the balance between letting the witness elaborate without interruptions and intervening to re-center the testimony on M. and the indictment was a delicate task.

Despite the difficulties concerning a questioning strategy, the witness extensively shared his personal experience. He particularly focused on one person he met during detention. This person was considered a betrayer because he collaborated with the pro-regime groups and prison wardens. They met in the central prison in Homs, where P19 was detained. P19 explained that this person was the cell superintendent, he knew everything about P19’s time in detention. P19 further explained that he was tortured by one of the doctors who was part of M.’s alleged group. P19 recalled that he told the person in the central prison that the doctor who tortured him was the worst of all doctors, M. was not as bad. P19 based this on the experience he had in the Military Intelligence Branch, where he saw M. for the first time. P19 recalled that M. did not insult nor beat him. According to the witness, the person in the central prison replied, "If you only knew, he was more malign than others, he vented his power on the patients." Upon questioning by the Presiding Judge who needed clarification if this person said M. was worse without providing examples, P19 recalled that the person said M. was worse, he vented his anger over the patients, he beat on the spots where it hurt the most and concluded, “Everyone has his own style.” At that moment, it became clear what the witness so urgently wanted to tell the Court on this day and the long story revealed its purpose.

After a short break and upon request by M., the witness was questioned about this first encounter with M. M. wanted to know at which point P19 heard his full name, Alaa M. - as opposed to Dr. Alaa. P19 recalled that a co-detainee, a tall man in traditional clothes, knew M. and mentioned his full name and that he was Christian when they were waiting to receive their medication.

The last part was dedicated to the inspection of the photo array showing three men, the same that was shown to almost all witnesses. The witness could identify M., was unclear about a second person, and unable to identify the third person. The Judges questioned P19 about when and where he saw the reports and photographs for the first time online. The witness also mentioned that one report detailed a person who had epilepsy and died in the hospital which provoked him to contact Al Bunni. The Defense Team asked several questions about the photographs and accompanying texts since the names were mentioned and attributed to the corresponding photos. Even after several questions, it remained unclear if P19 identified M. based on his memory or on the written text and labels below the photographs.

The Defense Team wanted to know if M. was labelled as a “slaughterer” in the media. P19 confirmed this and upon more questions, P19 called M. a black-box and he should speak if he had a conscience. P19 also said he came to Germany voluntarily but in the service of his country which he loved, he carried the responsibility and the weight of the disappeared and brought the message of the tortured. He continued and said that many worked for the regime, but many – like Caesar – woke up. He called upon M. to wake up and lighten his conscience, for his family, but at least for his country. Presiding Judge Koller acknowledged his words and issued a 5-minute break.

During this short break, the Defense Team turned around to M. Defense Counsel Endres, in a loud voice, so everybody could hear him, said: “You are the symbol of the state. The symbol of terror. It is that simple.” Counsel Al Agi added that this was what everyone propagated.

Upon return, the Judges showed P19 one more photograph and discussed the schedule before closing the session for the day.

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