Higher Regional Court – Frankfurt, Germany
Trial Monitoring Summary #48
Hearing Date: June 27 & 29, 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 48th trial monitoring report details days 79 and 80 of the trial of Alaa M. in Frankfurt, Germany. The first trial day this week started with a statement by the Prosecutor. She provided arguments for why the testimony of P18 should be considered credible and the discrepancies be appraised in light of the intimidation P18 had to endure. The Defense Team firmly objected the statement and accused the Prosecutor of simply protecting the witness. Subsequently, the BKA inspector Deußing testified as a witness in relation to the police questioning of P15 before presenting his conclusions drawn from the technical analysis of the Caesar Files as an expert.
On the second day, the Accused made a statement to explain a misunderstanding that was manifested during the trial sessions. The Accused said that a translation mistake, confusing the dates, and lack of knowledge of facts were the reasons that might have caused the problem. After the Accused finished his statement, the Judges resumed examining the translation of the interview conducted by the International, Impartial and Independent Mechanism (IIIM) with P15. P15 was asked about the details of the incidents in which the Accused allegedly committed crimes. After that he was asked when and how he ended up hearing about the case against the Accused. The IIIM investigator wanted to know with whom P15 communicated in that regard.
Day 79 – June 27, 2023
This trial day started with a statement by the Federal Public Prosecutor based on Section 257 (2) of the German Code of Criminal Procedure in relation to the testimony of P18 and a direct reply by the Defense Team to the statement.
The Prosecutor argued that the overall picture of the testimony by P18 did not raise concerns about any influence by P15 or the media. Based on P18’s behavior during the testimony and the Judges’ questioning, the witness provided credible details that he was intimidated. The Prosecutor thus concluded that the discrepancies which arose between his in-court testimony and the statements previously given were directly connected to the intimidation and thus a comprehensible reaction. The Prosecutor further argued that the witness was able to give consistent explanations and corrected false testimony. Overall, the Prosecutor deemed the testimony of P18 therefore credible. The discrepancies should be considered in light of the intimidation and adequately reflected in the legal reasoning. The Prosecutor concluded that another questioning of P18 was not necessary, hence the Court does not need to repeat the taking of evidence in this matter [Section 244 (2) German Code of Criminal Procedure].
After the Prosecutor finished reading out her arguments, Defense Counsel Endres directly replied to the Prosecutor's statement. He angrily rejected the prosecutor’s explanation, asserting that the witness gave false testimony in his prior statement. Although he said it is not subject to penalty because the witness had now corrected his testimony, it remains a false statement. He added that the Prosecution is whitewashing the testimony because the witnesses in this trial provide the most critical incriminating facts. Yet, this witness supposedly exonerated the Defendant in the beginning and later corrected himself. Endres was further convinced that P18 was influenced by P15 due to a phone call. He argued that witnesses who shared a ride to the proceedings were generally rejected since it was quixotic that they would not be speaking about the trial. Counsel Endres further argued that he did not perceive the witness as an intimidated man who was timid and hesitant, instead, the witness is simply being protected. He became more and more agitated during his statement and referred to the closing speech where the Defense Team will address this again [Section 257 (3) German Code of Criminal Procedure does not allow the anticipation of the closing speech]. The Judges acknowledged but did not respond to his statement.
Subsequently, the Presiding Judge asked Mr. Deußing, the chief investigator at the BKA, to appear and testify as a witness in relation to the questioning of P15 and as an expert regarding the origins and the preservation of the Caesar Files which were previously analyzed by the forensic expert Prof. Dr. Rothschild.
The Judges wanted to know the circumstances of the questioning of P15 by Mr. Deußing. He explained how long the questioning lasted, the quality of communication with the interpreter, and the corrections were made during the re-translation. Mr. Deußing further confirmed the transcript by reiterating the statements from his memory wherever he was able to recall the content. He was presented with several sections and either confirmed the content or was unable to recall details, therefore, referred back to the transcript. According to the minutes, P15 mentioned certain names, belonging to the group of doctors that was considered pro-regime and former colleagues who have left Syria and reside abroad.
After testifying as a witness, Mr. Deußing was asked to provide his conclusions related to the analysis of the Ceasar Files, thus, testifying as an expert. He prepared a detailed presentation on the files’ origin, systematic sorting, and chain of custody [note: This includes the original source where the data was uploaded, how it traveled, and where and whether it was stored safely in between]. Inspector Deußing explained that two hard drives were located in Lichtenstein, due to its neutrality, particularly towards Syria, and handed over to the BKA based on mutual legal assistance requested in 2015. The hard drives contained 97,693 files of which 54,689 were duplicates. Based on the metadata analysis, Mr. Deußing was able to identify the technical footprint and conclude that these files were identical and saved on both drives. Mr. Deußing explained further that the remaining files were partitioned into eleven sub-folders according to the departments. The BKA labelled this segmentation “Partition Sami”. According to Mr. Deußing, Sami – a code name - was the contact person of Caesar and stored and classified the files systematically. He was also questioned by the BKA but remains anonymous and under protection. Mr. Deußing also reported that “Partition Sami” was forwarded to the Forensic Institute in Cologne for medical analysis [note: Prof. Dr. Rothschild who analyzed the Caesar Files testified on trial day 72].
Based on reports by the Syrian Military Intelligence Service and provided to the BKA by the Commission for International Justice and Accountability (CIJA), Mr. Deußing further concluded that several reports listed respiration issues and an ensuing cardiac failure as the cause of the death of the detainees. The BKA identified the individuals in the Caesar Files and could not confirm the reports reasoning. One case was clearly identified as having involved blunt force by the forensic analyst, yet it did not appear in the official death certificate.
Overall, Mr. Deußing concluded his presentation and the technical analysis of the Caesar Files with the following statements:
1. Created by: Affiliates of the Military Police in Qaboun (including “Caesar”)
2. Location of recording: Mazzeh and Tishreen
3. Period of time: May 2011 until August 2013
4. Motive: Documentation of detainees by Syrian authorities for reporting and decision-making processes (Military and Intelligence Service)
The Judges followed up with a few clarifying questions concerning the numbering and the structure of the folders and departments before the Defense Team started questioning the BKA inspector. An irritating moment arose when Counsel Endres asked Mr. Deußing if other international arrest warrants were issued based on the structural investigation. Mr. Deußing replied that he was not mandated to give information in this regard. The Prosecutor intervened and clarified that it was publicly announced that an arrest warrant against Jamil Hassan was issued [note: Germany issued an arrest warrant against Jamil Hassan, former head of the Syrian Air Force Intelligence, in June 2018. More recently, in April 2023, French judges announced that Jamil Hassan would be tried in absentia for complicity in crimes against humanity and war crimes along with Ali Mamlouk and Abdel Salam Mahmoud.] Defense Counsels Al-Agi and Endres were surprised and asked for a short interruption to discuss. Upon return, Counsel Endres explicitly asked if an arrest warrant against Bashar Al-Assad was issued. Clearly astonished by this question, Mr. Deußing replied that he was not mandated to provide information on this.
Day 80 – June 29, 2023
On this trial day, the Judges wanted to resume examining the translation of the interview conducted by the International, Impartial and Independent Mechanism (IIIM) with P15. M. started the session by giving a statement, referring to the document pertaining to P18’s transfer which was presented in court the previous session. After M. finished his statement, the Judges briefly conferred among themselves. Presiding Judge Koller told the Accused that his German was good but not perfect, thus the Judges could not fully comprehend what he wanted to say. The Presiding Judge asked the Accused to restate what he wished to say in Arabic and to let his interpreter translate his statement to the Court. Once again, the Accused recounted his statement in Arabic.
M. referred to the person whose signature appeared on P18’s document and said that this was the same person who signed M.’s request to be transferred to the hospitals of the Ministry of Health instead of the Ministry of Defense. M. justified his request to that person at the time by saying that he was going to be transferred to Harasta Hospital, which M. did not want, since it was a war zone. M. reminded the person that he was shot in his left lower leg at the time of his employment at Mazzeh Military Hospital [Note: The Accused’s interpreter repeatedly mistranslated the word “lower leg” into “foot”, even though the Accused kept reminding and correcting him]. M. told the Court that the purpose of this explanation was to call the Court’s attention to the claim brought forward by the Prosecutors against him, which stated that the Accused's statements contained contradictions. M. said he had always wondered why the Prosecutor or Judge Dr. Rhode asked Prof. Dr. Rothschild if he could determine whether his injury had occurred in 2012 or 2014 and whether it was a leg or foot injury. The Accused explained to the Court that there were two WhatsApp chats between him and his wife on the one hand, and an acquaintance of his on the other. M. noted that there was a translation mistake in one of the two chats, where the word “leg” was translated as “foot”. M. believed that the Public Prosecutor used that conversation, which contained a translation mistake, and therefore this was probably the first reason that caused a misunderstanding in the presented claim. M. speculated that the second issue with the claim was the date his request was issued. When one of his acquaintances was asked about the date of M.’s injury, that person replied that it was probably in 2014. M. assumed that this person gave such an answer because he read the issue date of the application submitted by M. which was written on the paper. According to M., this was a mix-up by that person. Lastly, M. referred to the statements of another one of his acquaintances, which were used by the Public Prosecutor against him. M. explained that this person indeed worked with him in Mazzeh Military Hospital but moved to Tishreen Hospital before M. was injured. Therefore, M. assumed that the person did not hear about M.’s injury.
After the Judges heard the Accused’s statement, they proceeded by examining the translation of the interview conducted by the IIIM with P15. The interview resumed from where it ended the previous session. The IIIM investigator asked P15 about the details of the incident in which M. allegedly burned the genital area of a detained patient and wanted to know, based on his experience, how often such injuries could be observed in military hospitals. P15 explained that it was a unique injury and the only one of this type he witnessed during his work. The investigator asked about the medical consequences of such an injury and the fate of that patient. P15 explained the medical consequences and complications that might result from such an injury. P15 added that he did not know what happened to the patient afterwards. The investigator wanted to know if there were other incidents pertaining to M. that P15 considered crimes. P15 recounted an incident in which M. allegedly performed a surgical operation on a patient without using anesthesia. The investigator asked about the details of that surgery and wanted to know the purpose of not administering anesthesia to a patient. P15 explained that there was no justification for that, and that the intention was torture. As before, the investigator wanted to know the medical consequences and complications that such surgery might cause, P15 elaborated in depth. The investigator concluded that those two incidents in addition to beating detainees when brought to the hospital were all the incidents concerning M. which P15 knew of. P15 confirmed.
In the ensuing questions, the IIIM investigator wanted to know the doctors who told P15 about those incidents, what P15 heard about M. after they moved apart, and whether P15 heard that M. sustained an injury that kept him in bed for a long time. P15 enumerated the names of certain doctors and denied knowing of such an injury. The investigator wanted to know when P15 heard about the case against M. and whether P15 communicated with certain parties and gave them statements concerning the case. P15 explained that he learned about the case when interviewed by Al-Jazeera and the German newspaper Der Spiegel. In addition to his statements on Al-Jazeera, he gave a statement to the “Syrian Center for Freedom of Speech, the center of Mazen Darwish.” P15 stated that he watched some media reports and that Syrian organizations contacted him in that regard in case he wanted to testify in court.
Moving to another topic, the investigator asked about the location of the Homs Military Hospital. P15 clarified the geographical location of the hospital, explained its buildings, and listed its sections. Presiding Judge Koller adjourned the proceedings, announcing that the Court had enough of the interview for the day and it would be completed in a future session.