As the trial of Anwar Raslan and Eyad Al-Gharib enters its fifth month, a recurring issue surrounds the initial police questioning of the Accused. Should Raslan and Al-Gharib’s statements to police be accepted as evidence of guilt? The answer will depend on the status of Raslan and Al-Gharib at the time of questioning: were they witnesses or suspects?
Prior Questioning of Raslan and Al-Gharib
In 2015, Raslan filed a complaint with the German police after he suspected that individuals, who he assumed to be members of the Syrian intelligence services, were following and monitoring him in Germany. While sharing information with the police in order to obtain police protection, Raslan revealed incriminating information about himself. Specifically, he told them that he was a former military colonel and he provided details on the violence during his tenure at Branch 251. In 2017, Raslan was questioned by police and mentioned information about detainees and was asked about arrest and torture methods.
Al-Gharib was first questioned by the police in 2018. According to investigators, Al-Gharib said that he used to transport individuals to prison and worked in Branch 251.
Requests to Exclude Raslan and Al-Gharib’s statements
On the first and seventh day of trial, Al-Gharib’s counsel requested that statements Al-Gharib provided to investigators during police questionings be excluded from evidence as his client was not notified that he was being questioned as a suspect. Similarly, counsel for Accused Raslan filed an objection on the tenth day of trial regarding the use of Raslan’s 2017 questioning. Raslan’s counsel stated that the questioning assumed Raslan was being questioned as a suspect, as opposed to a witness, and thus no evidence from that questioning should be admitted.
The defense attorneys are requesting that statements be dismissed based on German laws that governs how to question witnesses and suspects. The Judges have not issued a ruling on these evidentiary matters yet, but their ruling will have a great impact as it will determine what evidence can be taken into account when making their final decision. Such rulings could also have an impact on the testimonies of certain insider witnesses, such as P3, who provide crucial information to link the Accused to the underlying crimes (see SJAC’s Trial Monitoring Report #5).
Witness and suspect rights under German Law
German law has various rights and rules regarding witness testimony. Witnesses provide evidence from their personal experiences in proceedings that are not directed against them. Under German Law, witnesses have a legal obligation to answer questions posed by the police and to tell the truth; if they do not, they may face criminal charges. However, they may refuse to answer certain questions if their answers may be self-incriminating (section 55 of the StPO – German Code of Criminal Procedure, Strafprozeßordnung). Witnesses must be informed of these rights and obligations before being questioned.
Suspects are not obligated to answer police questions. The suspect has the right to remain silent, the right to consult with an attorney, and the right to legal representation during the questioning. Government officials must notify the suspect of their rights when they begin the questioning. Assessing if a defendant has a judicial right to lie is a more controversial matter. But unlike witnesses, false testimony by the defendant does not result in criminal liability.
If police violate any of these principles, statements made to the police may be excluded from consideration at trial. A court might still consider a statement made to police if the defendant consents to their own testimony being used at trial. But Raslan and Al Gharib have both objected to the use of their statements so consent cannot be assumed.
Were Raslan and Al-Gharib questioned as witnesses or suspects?
The challenge arises in determining when a witness may turn into a suspect.
There is no clear, written rule that establishes when someone moves from being questioned as a witness to a suspect, but the prevailing view applies both an objective and subjective test. The first part of the test asks whether there are sufficient factual indications that the person being questioned committed a crime. The second part of the test asks when police decide to initiate formal investigations and prosecute the individual. This part gives authorities some discretion, but it cannot be misused to arbitrarily deny an individual the status and rights of a suspect.
Al-Gharib’s Questioning by Police
Accused Al-Gharib was initially questioned as a witness when the German Attorney General was trying to identify unknown suspects involved in the Syrian conflict. This means he was informed that he would be questioned about crimes committed by others and was not considered a suspect himself. During his questioning, Al-Gharib revealed incriminating information that led to his indictment. But it is not clear whether or when authorities would have had an obligation to inform him that they considered him a suspect. In its review of his pre-trial detention (German only), the Federal Court of Justice acknowledged that there was no concrete suspicion against Al-Gharib when the questioning began, and authorities did not specifically ask questions about his personal involvement in criminal activities throughout the interrogation. However, the Federal Court’s analysis hints at a rather strong suspicion or a “subjective” will by law enforcement to prosecute Al-Gharib arising at some point during the interview.
When Accused Al-Gharib told police investigators he helped arrest demonstrators and transported them to Branch 251, and that he knew that detainees were mistreated, tortured and killed in 251, there was a clear and unambiguous indication that he might bear criminal responsibility. This is probably the time when authorities were legally obligated to treat Al-Gharib as a suspect and inform him of his various rights. If authorities did not inform Al-Gharib of his rights, all the information obtained in this interrogation from that time on will likely be excluded as evidence.
This type of evidentiary issue is not unique to German courts, and has arisen in other criminal and war crimes courts. Under the International Criminal Court, Rule 74 of the Rules of Procedure and Evidence protects a witness from self-incrimination and the Rome Statute guarantees suspect rights, including the right to remain silent and right to legal assistance. Additionally, in a case under the International Criminal Tribunal for the Former Yugoslavia, the trial chamber denied admission of an accused’s statement as he was only being questioned as a witness at that time. Though the accused was informed of his right to counsel and right to remain silent, the Prosecution did not view the accused as a suspect during the questioning, and thus that statement was excluded as evidence.
The Judges in Koblenz have not yet issued a decision on the objections raised by the defense over the admissibility of their clients’ statements. They can decide on this matter at any point during trial—whether it be now or at the end. Much more evidence will be brought forth during the course of the trial but the information provided by both Accused during their initial police questioning could be key to proving their guilt or innocence. It may also have an impact on the willingness of insider witnesses to come forward in this and future cases as they may not be certain of their status or the protections afforded to them.
To learn and read more about the ongoing trial, see SJAC’s trial monitoring updates.
Thank you to the International Research and Documentation Centre for War Crimes Trials (ICWC) and Professor Stefanie Bock for their research.