Inside the Alaa M. Trial #39: Making Mountains Out of Molehills

Higher Regional Court – Frankfurt, Germany

Trial Monitoring Summary #39

Hearing Dates: March 28, 30 & 31 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 39th trial monitoring report details days 63, 64, and 65 of the trial of Alaa M. in Frankfurt, Germany. The Judges continued their questioning of the witness who worked with the Accused as a doctor in Homs Military Hospital. They started by asking about an incident in which the Accused allegedly burned body parts of one of the detained patients. After the witness explained how he examined and treated the patient, the Judges asked him to draw a sketch depicting the injuries he observed during the examination. The witness concluded that the patient had suffered burn injuries inside the hospital and substantiated his opinion in court. The witness added that one should be careful when asking about a detained patient lest one be accused of aiding government opponents and viewed with suspicion. After the Presiding Judge reprimanded one of the Defense attorneys for interrupting the testimony, the Judges asked about the situation in which the Accused told his colleagues about the burning incident. The witness recounted that the Accused shamelessly bragged about it in front of them.

On the following day, the witness continued his testimony despite health concerns. He was able to reassure the Judges that he was fit to testify. The Defense, however, was overly concerned about his condition. In the ensuing questioning, the witness recalled events from the Military Hospital and evaluated certain claims made by M. P15 concluded that some of the arguments were unlikely or even illogical based on his own experience and knowledge. When the witness mentioned the Taafish, the pillaging of Baba Amr, the Judges wanted to assess the circumstances in detail. Yet again, the Defense Team interrupted and opened a discussion about the term. In the last part, the witness was asked to evaluate the doctors who were allegedly involved in the mistreatment of patients. P15 confirmed that certain pro-regime doctors were sent to external missions. The claim that M. was part of this group, could only be based on hearsay.

The third day of the week started with a request by M. which was read out by his Defense Counsel. He urged the Court to request the asylum files of the Syrian witnesses since he was certain that they would reinforce discrepancies in their stories. The Court also read out a file memo by the BKA regarding the two other doctors which generated no relevant results. The day ended with M. reiterating his previous narrative when Judge Rhode asked a few clarifying questions.

Highlights:

Day 63 – March 28, 2023

On this day, the Judges continued to question P15 and started the session by asking P15 what he witnessed in an incident involving the burning of a patient. P15 recounted that a fellow doctor in the urology department told him that M. had poured alcohol on a patient's body parts and set it on fire. A day or two after that incident, P15 was called to provide urological consultation for a patient with burns to one of his organs. The Judges wanted to know how P15 arrived at the conclusion that the patient he examined is the patient his colleague told him about. P15 explained that he inferred this from the fact that burns were uncommon in that area and because the two incidents coincided at the same time. The Judges asked P15 to describe the injuries he observed during the patient's examination. P15 described the injuries’ type, location, size, color, and other details. Subsequently, the Judges asked P15 to draw a sketch illustrating these injuries. After P15 finished drawing his sketch, the Judges asked P15 in depth about those injuries, to describe what he recalled about the patient himself, and who was present during the examination. P15 recalled the patient’s clothes, as it was common for patients to be in their underwear, however, that patient was wearing something different. P15 believed that this could be associated with the arrival of international observers to Syria at that time, because the Syrian government wanted to show a “good side”.

After that, the Judges asked if P15 noticed other injuries on that patient. P15 stated that the patient had a primary injury (P15 was unsure whether it was caused by a gunshot), due to which the patient ended up in the hospital, and that the burns were only secondary injuries. The Judges wanted to know how P15 reached that conclusion. P15 explained that by analyzing the cases there could be some scenarios: Had the primary injury been general body burns, the burns unit would be responsible for that case and the urology department may be consulted if there were injuries in the genital area that falls under their competence. P15 ruled out this possibility because he did not observe other burns on the patient's body. P15 proceeded to explain that in the second scenario, there would be an isolated injury in the genital area, therefore, the urology department would take over the responsibility of admitting and treating the patient and will seek medical consultations from other departments if needed. P15 explained that the third scenario, although not impossible in a war situation, was far-fetched: The general surgery department was the one who admitted the patient and then summoned doctors from the urology department to provide their consultation. However, according to P15, the most common possibility was that there was a primary injury that fell within the competence of the general surgery department, resulting in the admittance of the patient to the hospital, and then there was a secondary injury relevant to the urology department, for which their consultation was requested.

In the ensuing questioning, the Judges wanted to know if P15 met that patient again, for a follow-up treatment for instance. P15 explained that this was the only time he saw that patient. He further recalled trying to ask about the patient’s condition during his next shift to know what happened to him, but he did not receive any information in that regard. P15 added that doctors had to be careful when asking about such a patient, because that could raise suspicion among other doctors unless someone had strong reasons for asking. Moreover, the question might be ignored at first, but the doctor could be accused of asking about terrorists in that case. P15 explained that it was as if the doctors sent the following message: “If you already provided your consultation, you have no more business here. If we need you, we will send a request for you.”. The Judges confronted P15 with statements he made in previous hearings suggesting that he went to the general surgery department to ask about the patient after a certain time. P15 did not recall accurately when and whether this event took place.

Based on his medical experience, the Judges asked P15 whether there were other possible differential diagnoses for that patient’s injuries, hypothesizing that the injury was not caused by burns. P15 enumerated what could cause similar injuries. In response to the Judges' question, P15 explained that he had not heard of such burn injuries except for what he read in books in the context of wars, and that he had not encountered similar cases during the course of his training. While the Judges were trying to narrow down the time frame in which the incident allegedly took place, Defense Counsel Al-Agi interrupted the conversation in an attempt to correct the interpreter. He expressed his dissatisfaction with the interpreter who omitted the literal translation of an expression. Frustrated and tired of the interruption by the Defense Team, the Presiding Judge expressed the Court's expectation for the interpreter. It preferred the translation of the meaning and content, rather than literal translation.

Nonetheless, the interpreter seemed confused by some of the medical terms P15 mentioned. He translated some of the terms, asked for clarification about others yet simply ignored some of them.

Day 64 – March 30, 2023

On this day, the witness, P15 continued to testify. He started by informing the Court that he did not feel well in the morning as he suffered from stomach aches. He added that he was able to continue the questioning, nonetheless. The Judges trusted that he would be able to judge his condition since he is a doctor. The Presiding Judge ascertained that he did not take any medication and decided to continue. The Defense Team, however, was not satisfied with this decision and insisted on further confirmation. After several questions into the testimony, Defense Counsel Endres became agitated and interrupted. He reiterated that it was obvious that the witness was suffering from aches and insisted that the witness's condition be noted in the protocol. The rest of the parties to the proceeding were unable to comprehend why the Defense made an issue about this despite the continuous reassurance of the witness that he was fit to testify.

After the Defense interventions, which were not obviously relevant, the Judges questioned the witness concerning several crucial events. According to the indictment, the person whose genitals were burnt was a minor. In the previous session, P15 was asked about the age of the person and P15 estimated 18 – 20 years. Today, he confirmed that in his opinion, 18 – 20 years was a minimum estimate, the person may have been older.

The Judges further wanted to know about P15’s experiences with another colleague – whom M. claims to falsely accuse him. M. argues that this accusation is based on an argument following an incident that occurred during Ramadan. P15 could not confirm the assumptions. When asked, P15 explained in detail that the narrative is very unlikely because in a Military Hospital, personnel are expected not to practice their religion openly. He added that even if this would have been accepted, the majority in the Military Hospital were not fasting. He further recalled that the person who allegedly falsely accused M. was not practicing his religion strictly nor could P15 remember that he had any argument with M. Another crucial aspect which M. raised in his defense was that this person contacted him to work in the combat support hospital of the opposition. According to M., he refused the offer which provoked this person to take revenge on him. The witness found this aspect to be entirely illogical and explained details about the circumstances of this person’s work in the hospital and beyond.

While giving details about the situation at the time, the witness almost accidentally mentioned that several pieces of furniture arrived in the Military Hospital which were sacked during the Taafish [pillaging] of Baba Amr. The Judges asked detailed questions about the circumstances of the pillaging until the Defense furiously intervened. Counsel Endres argued that the term pillaging was a legal conclusion and should not be used by the Judges because it was not an established fact. A discussion unfolded but the Judges rejected the Defense’s objection. Presiding Judge Koller pointed out that they were obliged to assess "the elements of a widespread attack" and requested Defense Counsel Endres to read § 7 VStGB [crimes against humanity]. After settling the argument, the witness was able to give further details relevant to the assessment.

The last part of the day was dedicated to the fact that certain resident doctors, M. included, were sent to external institutions such as the Military Prison. The witness named M. and two other doctors who allegedly participated in these missions. P15 clarified that he knew this from rumors which were told among colleagues. He added that he could only confirm having seen one of the other doctors in a military uniform. Upon questioning by the Judges, he further named military doctors whom he judged as pro-regime but were not involved in the mistreatment of patients. Following several answers, the Judges confronted P15 with statements he had previously given during IIIM and CIJA interviews to resolve any discrepancies.

At one point, similar to the previous session, the interpreter was overwhelmed by medical terms which he could not translate. M. and his personal interpreter offered their assistance, which Presiding Judge Koller rejected due to a conflict of roles and interest.

Day 65 – March 31, 2023

This short trial day lasted one hour and was dedicated to reading out file memos and an ensuing questioning of M.

Before the Judges opened the file, the Defense asked to read out a request on behalf of M. According to the document, M. urged the Court to request the asylum files of three witnesses from the EU member states in which they underwent asylum procedures. The Defense has already officially filed a motion regarding this request. However, M. was seeking to stress the importance. He was certain that the discrepancies that arose between statements from police questionings would be reinforced by discrepancies which he expected to arise from the asylum interviews. The Court took notice but did not comment on M.’s statement.

Subsequently, the Judges rejected a motion put forward by the Defense in a previous session but did not publicly reiterate the content. [As the trial monitor did not have access to the case file, and the Court did not describe the substance of the motion, it is not clear which defense request was rejected.] Yet, the Court explained that the rejection was based on the argument that the motion did not address a substantial aspect that may influence the decision [According to Section 244 (3) no. 3 German Code of Criminal Procedure, “the fact to be proved is irrelevant to the decision”].

The Judges continued by reading out file memos concerning background investigations by the BKA related to two other doctors. These investigations were based on details which the witnesses provided during their testimony. According to the BKA report, no substantial finding resulted from searching several sources related to the doctor’s private or professional lives. Moreover, the testimony by two witnesses about the revolt in the Military Prison in Homs in 2012 was confirmed by open sources, for instance by publications by Reuters, the Red Cross, Human Rights Watch, and the LCC - the number of victims, however, varied among the sources.

Judge Rhode addressed M. with a few follow-up questions regarding the two doctors and their roles. M. said that he did not witness how they were deployed in "external missions" and never saw them in military uniform. He added that from hearsay he knew that one of the doctors was a "Naqib", a captain in Ar-Rastan. M. further explained that work in Ar-Rastan was considered comfortable and easy since the hospital was much smaller than Homs or Tishreen and the departments worked together. According to M., he was asked to transfer there but after he refused his contract was terminated and therefore, he never had contact with the doctor.

Further questions about the relationship between M. and P15, and potential arguments between the two as well as M. and the third person resulted in the reiteration of M.’s previous statements. He repeated that he was neutral, that he did not have any contact with colleagues, that he had the said dispute during Ramadan with the person who now falsely accuses him, and finally that he was not present in Homs at the time of the deadly injection.

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