Higher Regional Court – Frankfurt, Germany
Trial Monitoring Summary #59
Hearing Date: October 31 & November 2, 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 59th trial monitoring report details days 99 and 100 of the trial of Alaa M. in Frankfurt, Germany. A new witness, who is a close friend of the Accused and was a doctor in Syria, appeared in court. The witness remembered events that preceded 2010 and succeeded 2014. However, he had memory lapses regarding intervening events. The witness stated that the Accused came to Damascus in 2014, contrary to what the Accused claimed in his testimony. The witness did not recall the circumstances of an alleged injury that the Accused sustained in Syria. Nonetheless, a break issued by the Presiding Judge, before which he reminded the witness of his duty to tell the truth, bore fruit. The witness recalled that the Accused’s injury was not a real gunshot nor sustained during armed clashes - as the Accused previously claimed - but rather that the Accused wanted to receive a medical report to support his request to be transferred to a hospital in Homs so that he could be close to his family. The session included displaying these two documents on the screens in the courtroom.
The second trial day started with an unexpected delay. Upon opening the hearing, the Judges informed everyone who was present that they would issue a legal notice within the next minutes. The delay resulted from the fact that this notice was given to the Defense Team in advance due to the impact it would most likely have on the Defendant. Through the legal notice, M. was informed that the Court is considering ordering his placement in preventive detention which is a non-punitive measure that can be ordered in case a convicted criminal is considered dangerous. He would therefore not be released after having served his sentence. The Judges held that based on the testimonies of the plaintiffs and the former colleagues of the Defendant, the Court deems it reasonable to believe that the Defendant will be sentenced on at least three counts resulting in a sentence of not less than three years. An expert will explore M.’s behavior during upcoming hearings. After this surprising news, the Judges resumed the questioning of P26 in which the witness admitted that false documents were regularly issued in Syria. He also testified that M. lied in one document detailing dates and places which he submitted to the German authorities.
Day 99 – October 31, 2023
On this trial day, a new witness appeared in court. He is a close friend of M. and worked as a doctor in Syria. At the beginning of the session, Presiding Judge Koller wanted to know about P26’s life, upbringing, and study in general. P26 recounted these details, explaining that he comes from a family of doctors. Subsequently, Koller asked how P26 became acquainted with M. and about the relationship between them. Koller then wanted to know if they had met before P26 left Homs. P26 recalled that he visited M. in Homs Military Hospital in 2010 before the war in Syria, detailing that they drank coffee, where they met, and who was present at the time.
When questioned about the circumstances of M.’s transfer to Damascus from Homs Military Hospital, it seemed as if P26’s memory was blurred; he did not remember when M. came to Damascus or where he lived, nor did he know where M. had worked before that. P26 estimated that M. moved to Damascus around 2014 [Note: This contradicts what M. claimed in his testimony in court when he stated that he “was not present at the place and time of the alleged committed crimes of which he was accused, because he left Homs Military Hospital earlier and moved to Damascus”]. The Judges tried to refresh P26’s recollection, hoping that he could recall M.’s whereabouts or where M. worked between 2010 and 2014, their effort however was in vain. P26 only recalled meeting M. on one occasion. Judge Koller found it odd and questioned whether P26 was a close friend of M. Koller wondered how someone would not be able to know where his close friend had been working all those years.
After the Judges questioned the witness about some of the Accused’s relatives, they asked whether P26 recalled an extraordinary incident that happened to M. in the same timeframe. Since P26 did not realize the Judges’ intention behind the question, they asked him if he heard anything about an injury that the Accused sustained. Apart from the fact that the injury was merely superficial, the witness did not recall how, when or where M. was injured. Irritated by the answer, the Presiding Judge noted that the serious matter was that a friend had been injured, regardless of how serious the injury itself was. Koller was surprised how someone could consider himself a close friend of a person who was injured and yet would not contact him to ask about his injury and condition. P26 responded that he did not have many details. Judge Koller interrupted him, saying that he asked barely about details and merely for basics. Koller recalled P26 elaborating on an occasion with M. in 2010; P26 remembered what they drank and who was present at that time, yet P26 was unable to recall a more significant and recent incident. The Presiding Judge announced that he would issue a break, which P26 was recommended to utilize in order to recall some of the events that took place between 2010 and 2014, reminding the witness of his rights and duty to tell the truth. Koller noted that Prosecutors were present and had the right to investigate whether a witness was not telling the truth in accordance with Section 153 of the German Criminal Code, adding that this was something Koller would prefer to avoid. Once he announced the break, the Presiding Judge asked all parties to the proceedings, including the Accused, to approach the Judges’ bench, and the witness as well as the rest of the audience to leave the courtroom, so that the Judges and parties to the proceedings could discuss something in private.
After the break, the Presiding Judge wanted to know if the witness had updates. P26 replied that he would like to distinguish between what M. told him and what he heard from others. Judge Koller commended the witnesses to take this approach and differentiate between such statements in their testimonies, then referred to P26. P26 went on to explain that M. told him that his injury was caused by a gunshot at the time M. used to work at Al-Mazzeh Hospital. However, what P26 heard from his relative - who was informed by M. about the matter - was that this injury was not in fact a real gunshot injury, nor due to armed clashes. P26 added that it was rather a mere superficial injury, from which M. wanted to obtain a medical sick note. Hence, P26 did not ask M. about it, nor was he concerned. [The courtroom was shocked. The reactions of the parties were mixed; some had their jaws dropped, others, including the witness, smiled.] After assimilating what P26 uttered, Koller wanted to know why M. would do that. P26 responded that M. was unhappy in Damascus in general because he was away from his family and his wife who were in a village in Homs. P26 speculated that M. no longer wanted to work in Damascus and preferred to return to Homs. Koller wanted to know when P26 heard about M.’s injury. P26 explained that he was uncertain but assumed it was in 2014 [note: M. claimed in his in-court testimony that he was injured in late 2012].
A request for transfer to the Homs Health Directorate, submitted by M., was displayed in court. Judge Rohde explained to the witness that the Accused claimed he was injured in 2012, which was rather earlier than P26’s assumption. P26 reflected for a moment and then told the Judge that he did not have anything to say. This was followed by displaying the detailed medical report on M.'s injury, in which M. claimed to have been shot and he recounted the circumstances of that incident. Judge Rhode asked the witness whether M. had shown him that document previously. P26 seemed overwhelmed with thinking and remained silent. The Presiding Judge announced a brief break for discussion, during which a smiling and red-faced M. stared at P26. After the break, P26 was questioned about where the Accused’s family lived in Damascus, and whether P26’s father could be presumed to have helped M. and facilitated his transfer to Damascus, something the witness indecisively denied. The Presiding Judge then adjourned the session.
Day 100 – November 2, 2023
This trial day started with closed doors. The public was not permitted to enter the gallery at the scheduled time. The officers informed all spectators that the Judges “had something to discuss” and will notify them as soon as the gallery is accessible. It is common for the Judges to discuss issues before officially opening the session in the courtroom. But normally, the gallery is open, and the Judges discuss in the backroom. On this trial day, the public gallery remained closed until notice. After 30 minutes, the spectators could enter the room. It turned out that all parties to the proceedings arrived at this time. Presumably, not only the public was excluded, but the session overall postponed. Yet, this could not be confirmed.
Upon opening the session, the Judges informed everyone who was present that they will issue a legal notice within the next minutes. Presiding Judge Koller explained that the delay resulted from the fact that this notice was given to the Defense Team in advance due to the impact it would most likely have on the Defendant. The Judges wanted to give the Defense Team time to inform M. and give him space to comprehend its content.
The Judges issued the following legal notice [Section 265 Code of Criminal Procedure]:
The Accused is informed that the Court is considering ordering his placement in preventive detention [Section 66 Criminal Code. Note: preventive detention is a non-punitive measure which can be ordered in case a convicted criminal is considered dangerous. The measure therefore aims at preventing further crimes. It is a form of detention that is imposed after the prison sentence has been served and may only be ordered if there is a high risk of re-offending or the detainee suffers from a mental disorder or addiction]. In cases in which a court is considering such placement, it is obliged to consult an expert who will be examining the defendant [Section 246a Code of Criminal Procedure].
The Court considers it reasonably probable that the Defendant M. will be placed in preventive detention because:
(1) the formal requirements are satisfied based on the nature of the charges (crimes directed against life and crimes that are considered crimes against international law). Preventive detention is ordered when the defendant committed three or more crimes enlisted in the provision [Section 66 I].
(2) The Court further considers it reasonably probable that the material requirements are met. Based on the testimonies of the plaintiffs and the former colleagues of the Defendant, the Court deems it reasonable to believe that the Defendant will be sentenced on at least three counts resulting in a sentence of not less than three years [Section 66 II].
After reading out the legal notice, the Judges turned to M. in sympathy and explained that an expert will be consulted soon. They informed M. that this expert will be present during several hearings and explore M.’s behavior. After the so-called “exploration”, he will provide his expert opinion on M.’s condition to the Court. The courtroom was silent, and it appeared that M. and all other parties reflected on the meaning of this notice. Presiding Judge Koller personally addressed M. and explained to him that this was a legal procedure which the Court was obliged to initiate.
The Defense Team thanked the Court for giving them time before the session started to notify their client about the legal notice outside the courtroom. M. was visibly exhausted and devitalized, according to Defense Counsel Endres, they spoke to M. for over an hour. The Presiding Judge also informed M. and the Defense Team that he could already avail himself of the possibility to receive psychological support during the regular detention.
Although it seemed harsh to resume the trial, after this notice, the Judges continued with the questioning of the witness, P26. The Judges wanted to reaffirm that P26 was a very close friend of M. and that they had contact on a regular basis. The witness confirmed and upon questioning he said that the contact between him and M. was even closer than that between his brother – who is also summoned – and M.
Throughout the session, the witness seemed reluctant to answer questions. He often hesitated before responding, gave brief answers or said that he could not give information about a certain issue addressed in the Judges’ questions. When the Judges wanted to know what he had witnessed in Tishreen Hospital, where P26 worked, particularly related to detained patients, he circumvented answering directly and concretely. The Presiding Judge became impatient and seemingly annoyed and repeatedly reminded P26 of his duty to tell the truth and give full testimony.
Despite the rocky process, the Court raised several different issues. For instance, when asked about an alleged dispute during Ramadan between M. and a colleague, the witness was unable to confirm this. At the same time, P26 recounted the strong hatred between certain regions which reflect certain religious affiliations. Moreover, the Judges asked what P26 knew about the mistreatment of patients by M. The witness testified that he did not hear anything about the alleged mistreatment by M. while they were in Syria. He added that he and M. communicated after the allegations became public in Germany. Upon questioning about his reaction to this information, the witness said that he was surprised and shocked about it.
Almost at the end of the session, documents were displayed. They included M.’s work certificate, CV and a letter of motivation. The Court further displayed the witness’s CV and letter of motivation. The two letters were identical, and P26 admitted that he and M. copy-pasted the documents for the visa application which they prepared together. The Judges were interested in the process and P26 recalled that he and M. went to the embassy appointment in a neighboring country together. The Judges asked P26 in detail about the fact that the different hospital branches [Tishreen and Al-Mazzeh] were not listed in the CV’s nor that these clinics were military. P26 explained that Tishreen is the “mother hospital” and administratively responsible, therefore everyone would only list Tishreen. Skeptically, the Judges asked why neither the witness nor M. added the information that these hospitals were military when they were submitted for the visa application to the German embassy as well as for job applications upon arrival in Germany. The witness reiterated that in Syria, it would be clear to anyone who reads Tishreen that it is a military hospital. Upon confrontation with his statements given during the police questioning, where P26 said that disclosing it may have negative consequences, he remained rather silent in-court.
The Judges further obtained the work certificates of M. and the witness’s brother and compared the documents. Judge Rhode wanted to know how it was possible that both of them contained the exact same typo. Defense Counsel Al-Agi assumed that it was a translation mistake [the documents were written in German]. Judge Rhode informed Al-Agi that the documents were originally written in German and submitted to the embassy. After several comparisons and questions, the witness explained that texts are used by everyone, and the content may be false. He was asked to inspect M.’s work certificate that detailed the period of employment in Damascus. The witness attested that this is false. Upon the question whether factually wrong documents are regularly issued in Syria, the witness confirmed.
Before adjourning the session and asking P26 to return for the next hearing day, the Presiding Judge informed him that he was not yet fully dismissed. The Judge added that this was meant as legal information not a warning, but it meant that in case he testified something false or incomplete, he has the opportunity to correct it during the next session and will not face negative consequences.