Federal Court of Justice confirms Judgment of Higher Regional Court Koblenz on Syrian State Torture

Year of issue 2024
Date of issue 05.08.2024

No. 158/2024

Decision of 20 March 2024 – 3 StR 454/22

The Federal Court of Justice has rejected the appeal on points of law filed by a former senior officer of the Syrian secret service directed against his criminal conviction by Higher Regional Court Koblenz. Due to his involvement in serious acts of violence and sexual offenses that occurred in a Damascus prison under his leadership, the man, who had entered Germany in the year 2014, had been found guilty by the court of crime against humanity in form of homicide, torture, serious deprivation of personal liberty, rape and sexual assault in coincidence with murder and further offences. Therefore, the court had imposed a sentence of lifelong imprisonment upon the man.

1. According to the Higher Regional Court’s findings, the Syrian security authorities, since at least the end of April 2011, upon central government order had sought to forcibly nip in the bud the protest movement originating during the so-called “Arabic Spring” against the regime of president Bashar al-Assad. All over the country demonstrations were dissolved, also by use of firearms. Thousands of actual or alleged opposition members and dissidents were arrested, frequently tortured or even killed by security forces. The purpose was, on the one hand, to obtain information on further opponents as well as, on the other hand, to intimidate the general public and, in doing so, to prevent any future protest action. In this procedure, the secret services played a decisive role.

In department 251 of the General Secret Service as well as in a prison they controlled in a district of Damascus, brutal torture methods were applied. Following the outbreak of the conflict, hardly any interrogation took place without torture. The inflicting of severe pain and suffering by interrogators or prison officers present at the interrogation was structurally provided for in the processes of this department. The detention conditions in their totally over-crowded prison were desolate. Inadequate nutrition and sleep deprivation, also caused by loud screaming of tortured persons, quickly led to loss of weight and overall deterioration of the general state of health. During the period of the crime, that is from the end of April 2011 through to the beginning of September 2012, in any event 4,000 persons were imprisoned for at least several days. Of these prisoners at least 27 persons, with a child among them, have died due to torture and the detention conditions.

The accused, in the rank of a colonel, held the positions of deputy head of department 251 and head of the interrogation subdivision. His duties included, amongst others, the investigative work as well as the most efficient information procurement. His responsibility extended to the prison management, the treatment of prisoners and the performance of interrogations. He contributed in decisive manner to upholding the torture practices. De facto he was in the position to decide responsibly on the further fate of most prisoners.

Torture and use of violence up to and including sexual assaults were intended by the accused as measures of statement extorsion and intimidation. In doing so, he condoned fatal casualties as an inevitable consequence of the abuse and the detention conditions. He identified with the Syrian state, was aware of the concerted action carried out by security authorities against actual and alleged opponents to the regime and considered his own function as element thereof. The regime’s preservation mattered to him for personal reasons also, as his status and income as well as his social privileges were tied to that regime.

2. The Higher Regional Court has assessed these findings to the effect that the approach of the Syrian regime, from the end of April 2011 onwards, met both the prerequisites of an widespread attack, as well as a systematic attack against its own civilian population pursuant to section 7 (1) CCAIL, which is the penal provision applying to crime against humanity. In the course of this attack, numerous persons detained in the prison of department 251, in the meaning of the counts under nos. 1, 5, 6 and 9 of this provision, had been killed, tortured, sexually coerced and raped as well as severely deprived of physical liberty. The accused had participated in these crimes as a co-perpetrator.

3. The accused has filed an appeal on points of law against his conviction. He has raised the complaint of a substantive law violation as well as procedural objections.

4. The complaint of a substantive law violation initiated the judgment’s review by the Third Criminal Panel, competent for crimes against the state at the Federal Court of Justice, and has resulted in minor modifications of the conviction with regard to the sexual offences of the German Criminal Code (Strafgesetzbuch) also judged upon by the Higher Regional Court. The sentence, however, was not impacted by this at all. Furthermore, the judgment has not displayed any legal error to the detriment of the accused. The Higher Regional Court has correctly assumed that the accused, who committed his contributions to the offences as a state employee acting in his official capacity, is not entitled to functional immunity based on customary international law. In this context, the Federal Court of Justice has confirmed and clarified its jurisdiction on the limits of general functional immunity.

The procedural objections have not been successful. On one of these objections, the Third Criminal Panel has ruled that the Higher Regional Court, pursuant to section 256 (1) no. 1 (a) German Code of Criminal Procedure (Strafprozeßordnung, StPO), was permitted to read out, as testimonials of a public authority, the reports of the Independent Commission of Inquiry of the United Nations Human Rights Council and, therefore, to use such reports as documentary evidence.

Upon decision by the Federal Court of Justice the conviction of the accused is final.

Lower Court:
Higher Regional Court Koblenz – 1 St 9/19 – Judgment of 13 January 2022

Karlsruhe, 5. August 2024

Relevant Legal Provisions:

Section 7 CCAIL – Crimes against Humanity

(1) A person who, in the course of a widespread or systematic attack directed against any civilian population,
1. kills another person,
…
5. exposes another person in their custody or otherwise under their control to torture by causing that person substantial physical or mental harm or suffering, where such harm or suffering does not arise merely from sanctions compatible with international law,
6. sexually coerces, rapes, forces into prostitution or deprives another person of their reproductive capacity, or who, with the intent of affecting the ethnic composition of any population, holds captive a woman forcibly impregnated;
…
9. severely deprives, in contravention of a general rule of international law, another person of their physical liberty, or
…
shall be punished, in the cases referred to under nos. 1 and 2, with life imprisonment, in the cases referred to under nos. 3 to 7, with custodial sentence of no less than five years, and, in the cases referred to under nos. 8 to 10, with custodial sentence of no less than three years.

Section 256 StPO - Reading out of Statements by Public Authorities and Experts

(1) The following may be read out:
1. statements containing a testimonial or an expert opinion made by
a) public authorities,
…

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