Refugees as Witnesses in Germany
A Unique Connection
The Syrian conflict has displaced more than 12 million persons – either internally or internationally, to neighboring countries and beyond. According to UNHCR, approximately 1 million Syrian asylum-seekers and refugees are hosted by European countries. More than half a million are currently living in Germany, rendering it one of the largest centers for the Syrian diaspora worldwide.
Not coincidentally, Germany has become one of the leading states prosecuting Syria-related crimes in domestic criminal trials. The success of these prosecutions critically depends on key Syrian witnesses who are willing to testify against former ISIS members, government officials, or other pro-regime affiliates. The majority of these witnesses reside in Germany or another EU member state and cooperate with the investigation authorities despite the continuing fear of repressions by the Syrian government.
One remarkable feature of these trials is that most witnesses originally came to Europe as asylum-seekers and participated in recorded interviews as part of the application process. However, these interviews are now being used to test the reliability of witness testimonies at trial. This approach prompts several critical questions including, whether the quality of an asylum interview impacts its usefulness in assessing witness credibility.
Credibility in the Asylum Procedure in Europe
While the asylum interview must follow minimum standards with procedural safeguards, implementation varies greatly within EU member states. Inconsistent practices result in arbitrary rates of asylum being granted — including within the same country. In Germany’s 16 states, this unequal decision-making practice is particularly relevant. Due to extreme regional differences, this decentralized system is referred to as the “asylum-lottery.” A troubling number of asylum decisions are low quality, contain significant interpretation errors, and are based on questionable arguments for rejecting the credibility of an applicant. Due to a lack of transparency, these asylum decisions are rarely scrutinized. However, in the first quarter of 2017, 22% of the decisions made by the Federal Office for Migration and Refugees were overturned by German administrative courts. Researchers came to similar conclusions for Finland and the UK regarding flaws and wrongful decisions in asylum cases.
Corroborating evidence is often not available to the asylum applicants as they are fleeing repression. Thus, the basis for determining protection status is greatly influenced by an applicant’s verbal account and country-of-origin information. A recent study found that the credibility assessment conducted by judges is prone to subjectivity and confounding factors — such as mistakes by the interpreter and lack of cultural understanding— which are too rarely considered. One telling example is the Western attribution of importance to dates and times, while other details are deemed irrelevant by the decision-maker and not included on the interview transcript. This selective recording of information could easily lead to misinterpretation of the applicant’s account. The study further found that the duty to confront the applicant about potential inconsistencies is too often disregarded which leads to an incomplete determination of facts.
The relevance of these errors is manifold. First, in 2012 the high numbers arriving from Syria overwhelmed EU authorities. German authorities accelerated the process by fast-tracking Syrian applications and most Syrians were granted refugee status based on a written interview while waiving the right to be heard in person. Initially, this led to speedy decisions for Syrians as well as a significant reduction of workload for the authorities. However, in late 2015 live interviews were reintroduced. At the same time, according to Eurostat, in the first quarter of 2016 over 300,000 first applications of Syrians were filed in EU states, 60% of them in Germany. Many case workers conducted at least three interviews per day. Consequently, the length and quality of the interview decreased. The lack of qualified interpreters further led to flawed interviews and transcripts. Because Syrians received protection at a rate close to 100%, the details of the applicant’s accounts were deemed irrelevant as long as their identity was confirmed. As a result, interview transcripts produced in the years post-2015 are unlikely to reflect the applicant’s full account. At the same time, the account’s level of detail is mistakenly considered to be one of the most important factors in determining credibility: the higher the level of detail, the more likely the applicant is determined to be credible.
These challenges have received more attention in criminal proceedings. In international criminal tribunals it is standard to acknowledge cultural and linguistic barriers, the influence of traumatic experiences, and other challenges in assessing the objectivity and truthfulness of witness credibility. While there is still room for improvement, witnesses are carefully questioned, sometimes over weeks and their personal circumstances, gender, education, and socialization are all taken into account. National criminal tribunals apply similar standards. On the contrary, in asylum cases, these factors seem to be disregarded. This has serious implications for Syria-related prosecutions in Germany.
The Asylum Applicant’s Account and The Witness Testimony in Criminal Trials: One Story?
For the most part, witness testimony must be based on personal knowledge, it is common for memories to change, especially when events took place years ago or after extreme trauma. Additionally, it is common for witnesses to recall more details as time goes by. This is true not only in criminal cases but with asylum cases as well.
While a court may confront a witness with pre-trial statements to determine credibility, it is important that the court does not put too much weight on inconsistencies when the personal circumstances of the witness indicate reasonable explanations – even if the witness is unable to bring these reasons forward. For example, the International Criminal Court makes allowance for ‘imprecision, implausibility or inconsistency’ with pre-trial statements (Lubanga, 2012, para. 103) based on context and individual circumstances.
Pre-trial statements in this context are usually interviews with NGOs, police investigators, and commissions of inquiry. Syria-related prosecutions in Germany are usually tried before the State Security Senate (Staatsschutzsenat) of the Higher Regional Court and investigated by the Federal Criminal Police, the BKA (Bundeskriminalamt). The BKA usually collects a pre-trial statement with which witnesses are confronted at trial. Other witness statements, such as those collected by the International, Impartial and Independent Mechanism (IIIM) and NGOs are also used to question the witness.
Asylum interviews – with the above noted flaws – have become increasingly important in this process with alleged errors in the recorded interviews being subject to examination by calling as witnesses, the asylum interview interpreter, and even the judge making an asylum determination. Due to large caseloads, calling such witnesses rarely leads to clarifications, but does prolong the duration of a witness’ testimony. The confrontation with an asylum transcript in a criminal procedure may therefore cause significant uncertainties. Particularly so because the witness cannot resolve them in hindsight. The witness cannot judge whether the translation was done accurately, whether any inconsistencies were corrected during the re-translation, or whether the case worker misconstrued culturally induced statements or behavior.
Considering the distorting factors and the poor quality of many asylum interviews, the above-noted factors should be taken into account when assessing the probative value of the asylum transcript – especially in the Syrian context.
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