Detention is one of the harshest measures a state can legally impose on a human being under its jurisdiction. This violation of a person’s liberty requires the highest standards of justification, which must be justified at all stages of the proceedings. Alaa M. was arrested on June 20, 2021. Seven months later, his trial began at the Higher Regional Court in Frankfurt, Germany, remaining in pre-trial detention to date.
As of October 11, 2023, the trial of Alaa M. has lasted 631 calendar days and it remains uncertain when the verdict will be handed down. By comparison, Anwar R., the first Syrian government official to stand trial, was convicted in Koblenz 631 calendar days (1 year 8 months 22 days) after the first day of trial – his co-defendant Eyad A. after 308 days (10 months 2 days). We are therefore at an inflection point, when the Alaa M. trial now exceeds the length of the Koblenz trial. Is prolonged detention of the accused justified and what rights might survivors and victims assert in their long wait for justice?
The Right to a Speedy and Fair Trial
Arrest and detention are only justified when there is a danger of absconding, a risk of obstruction of the proceedings or the repetition of the offences, or the crimes committed are particularly serious. Although pre-trial detention serves to enforce a potential sentence, it is not an anticipated punishment. Until conviction, the presumption of innocence applies.
To reduce the impact of detention, the accused has the right to a speedy trial. As guaranteed by numerous human rights treaties, courts must therefore hear a case without undue delay, which is commonly interpreted as hearing a case within a reasonable time.
Interpreting “Reasonable Time”
"Undue delay” and “within a reasonable time” are subject to interpretation. The European Court of Human Rights developed a standard for reasonableness in the late 60s considering the following factors:
1. the complexity of the case
2. the applicant’s conduct
3. the conduct of the administrative and judicial authorities, and
4. the interests of the applicant at stake
In international criminal trials, these criteria have been applied liberally. Not without criticism, the complexity of the case, the international dimension, the obstacles to investigating in (post-)conflict zones, and the seriousness of the charges resulted in dismissals of motions to discontinue the proceedings. The ECtHR has further considered trials of four and seven years in complex cases involving new issues of law and an international element reasonably long.
The state parties to the ECHR are likewise bound by these standards. Domestic courts thus have to observe and apply its guarantees. In Germany, the right to a fair and speedy trial is safeguarded through Art 5 and 6 ECHR and § 199 in conjunction with § 198 German Courts Constitutional Act. Several decisions and judgments by the German Federal Court of Justice have refined the interpretation of the provisions. For instance, it was held that a ten-month inactivity of a prosecutor resulted in the reduction of a juvenile sentence by one month. In a recent judgment related to compensation for a lengthy civil procedure, the court established a high threshold arguing that the conduct of the court must be justifiable, but that the person seeking justice is not entitled to the optimal procedural support or that the state takes responsibility for the activities of experts. These and other domestic trials in which the Federal Court of Justice had to rule on the length of criminal trials assist but do not give much interpretative guidance to universal jurisdiction cases such as the case against Alaa M.
Drawing an Interim Balance
Considering the criteria established by international courts and the applicable standard developed by the German Federal Court of Justice, the trial against Alaa M. stands uniquely between both justice systems. Neither the standards by international criminal tribunals nor purely domestic criminal trials in Germany or state parties to the ECHR directly correspond. This is an inherent aspect of universal jurisdiction cases. But makes it difficult to assess whether the length of a UJ trial is reasonable.
As SJAC’s recent study on criminal trials in the Syrian context has shown, most such convictions within the past years were based on terrorism charges. On average, a final conviction was reached 18 months after the indictment. The pre-trial detention, however, significantly increased the length overall to sometimes over three years (report, p. 5). Cases based on cumulative charges, i.e. terrorism and core international crimes, also led to an increase in length. Data from Germany suggests that the average length from the date of arrest to the final decision was 24 months in comparison to 18 months for terrorism only charges (report, p. 12). There is very limited data on core international crimes only charges.
In Koblenz, Anwar R. and Eyad A. were both indicted on crimes against humanity charges, i.e. torture and severe deprivation of liberty. Alaa M. is indicted for crimes against humanity as well; for multiple counts of torture forced sterilization and killing. Another comparable case is that of Taha Al.-J. who was convicted for genocide, crimes against humanity, and war crimes. All cases are purely based on core international crimes. Taha Al.-J. was convicted 650 calendar days (1 year, 9 months) after the first day at trial. These three cases are the most comparable as they all concern international criminal law issues of similar complexity and took or take place under the same institutional circumstances. It remains an open question why the trial against Alaa M. in which so far 25 witnesses have been heard, including experts, police officers, and the three plaintiffs exceeds the Koblenz trial in length. In Koblenz, two defendants and 90 witnesses including the 23 plaintiffs were heard.
It must be noted that when considering the length of proceedings, it must be measured from the date of arrest until the verdict is final, including the time for appeal. Taha Al.-J.’s sentence was confirmed one year after the first verdict. Eyad A.’s appeal also took one year. Anwar R.’s appeal is still pending; two years after his conviction. Alaa M.’s trial, depending on the outcome, will most likely not end with the first instance. The right to a speedy trial will therefore have to be re-evaluated on a continuous basis.
Right of Whom?
Following the results generated from more than 250 Syria-related criminal prosecutions, SJAC also recommended making more resources available to national judiciaries since this reduces the length of proceedings (report, p. 1). A second accelerator is the existence of war crimes units that work more efficiently due to their experience with complex international cases (report, p. 13). Criminal trials in states that conduct structural investigations are further benefitting from the systematic procedure and expertise. These improvements would reduce delays to the benefit of all parties involved.
Significant delays not only violate the rights of the accused but also undermine the credibility of the process. Proceedings that last for several years also raise concerns about the efficacy of international justice and the applicable judicial principles. It should further be noted that serious delays risk damaging the reputation of the courts from a victim-centered perspective and devalue the positive impact these trials may have on victims and victim communities. The Convention on Enforced Disappearances even recognizes the right to truth. A prolonged trial withholds this truth from victims and their relatives – not only in cases related to disappearances. A speedy and fair trial is therefore not only a human right of the accused but also in the interest of the victims and international justice more broadly.