The Prosecutor v. Eyad Al-Gharib

Court	The Higher Regional Court of Koblenz, Germany
Case number	1 StE 3/21, 3 BJs 9/19-4
Decision title	Judgment
Decision date	24 February 2021
Parties	Federal Prosecutor General at the Federal Court of Justice Eyad Al-Gharib
Other names	The Koblenz trial The Al-Khatib trial
Categories	Crimes against humanity, Torture
Keywords	crimes against humanity, deprivation of liberty, torture, universal jurisdiction
Links	Judgement (Translated into English) Original Judgement (in German)
Other countries involved	Greece Syria Turkey

Summary

Mr. Eyad Al-Gharib is a Syrian citizen who was a member of the Syrian General Intelligence Directorate until 2012. Due to his conduct during the Arab Spring protests in Syria, he was found guilty by a German court of aiding and abetting crimes against humanity in the form of torture and deprivation of liberty and sentences to 4.5 years of imprisonment.

The offences in question occurred in Branch 251 and Section 40, which are part of the Syrian General Intelligence Directorate. In September or October 2011, a demonstration took place in the town of Douma. Members of Branch 251 and Section 40, including Mr. Al-Gharib, were deployed to deal with the demonstration. The officers shot at the demonstrators, and when the demonstrators tried to flee, the security forces, among them Mr. Al-Gharib, chased and arrested a large number of them and forced them into waiting buses. Thirty demonstrators were then taken to Branch 251, escorted by Mr. Al-Gharib. They were beaten on the busses and upon their arrival. They were then held in Branch 251 for at least several days. The conditions of detention were typical for the Branch: severely overcrowded underground detention rooms, partly without daylight; scarce food; terrible hygienic conditions; no information of the reason of detention or its duration; and, no information for the relatives of the detainees regarding their fate. The vast majority of the detainees were subjected to systematic physical violence during their detention and interrogation.

This judgment was the first court decision against a former agent of the Syrian government regarding the government-led crimes against humanity in Syria. This in turn permitted the Court to shed light on the repressive practices of the Syrian State apparatus.

Procedural history

On 25 April 2018, Mr. Eyad Al-Gharib travelled to Germany (p. 5), where he and his wife applied for asylum on 9 May 2018 (p. 6). He was initially arrested and held in custody on 12 February 2019 based on an arrest warrant issued by the investigating judge of the Federal Court of Justice on 7 February 2019. However, on 17 May 2019, he was released from custody following a decision made on the same day by the Federal Court of Justice's investigating judge. In this decision, the judge deemed a self-incriminating testimony provided by the defendant inadmissible as evidence, leading to the rejection of the strong suspicion against him, and subsequently revoked the arrest warrant. Afterwards, upon appeal by the Federal Prosecutor General, the 3rd Criminal Panel at the Federal Court of Justice overturned the earlier decision by the investigating judge. The original arrest warrant issued on 7 February 2019 was then amended to limit the scope of the offence for which there was strong suspicion. Consequently, the defendant was once again remanded in custody on 25 August 2019 and remained in custody since then (p. 6).

Related developments

The sentence was appealed by the defendant. He claimed that his testimony to German investigators provided significant evidence for the subsequent conviction of Anwar Raslan, a more senior Syrian former official, thus his sentence should be further mitigated based on section 46(b) of the German Criminal Code. The German Federal Court of Justice rejected the appeal on 3 May 2022, as it found no legal errors in the original verdict and sentence.

See: ICTJ, ‘Top German Court Rejects Syrian’s Appeal in Torture Case’, 5 May 2022.

Legally relevant facts

Mr. Al-Gharib was born in Damascus in 1976. At the age of 20 he joined the Syrian General Intelligence Directorate. He served at the Intelligence Directorate until his desertion in early January 2012. Afterwards, he made his way to Greece via Turkey and in April 2018 travelled from Greece to Germany with his wife and some of his children, where he applied for asylum in May 2018 (p. 6).

Throughout the trial, numerous survivors, witnesses, and expert witnesses, including forensic analyst Professor Markus Rothschild, provided testimony. Rothschild confirmed the consistency between survivors’ testimonies and his analysis of over 26,000 photographs provided by a defected military photographer, known as Caesar (pp. 96-99). Insider witnesses who had worked with Syrian intelligence agencies also testified, including one who detailed the mass burial of deceased detainees and the marking of bodies with numbers and symbols (pp.100-103). This witness recounted involvement in transporting and burying bodies from intelligence detention facilities, such as the al-Khatib detention centre and Saydnaya military prison. The bodies were marked with numbers and symbols, consistent with images provided by Caesar (pp. 100-103).

Core legal questions

Do the events in Syria constitute a widespread or systematic attack against a civilian population within the meaning of the preliminary requirement laid out in the chapeau of section 7(1), VStGB? Are the individual offences committed against the detainees of Branch 251 and Section 40 of the Syrian General Intelligence Directorate part of the overall offence of a widespread or systematic attack against the civilian population?

Did the offence of torture, pursuant to section 7(1) no. 5 VStGB, take place? For the offence to take place, the seriousness of the harm or suffering requires a sufficiently great degree of the impairment caused by the offence and must be assessed considering all the circumstances of the case.

Did the offence of severe deprivation of liberty, pursuant to section 7(1) no. 9 VStGB, take place?

Did the defendant aid and abet the offences of crime against humanity in the form of torture and severe deprivation of liberty? Is the defendant culpable for his acts?

Within the context of sentencing, does the aiding and abetting on the part of the defendant fall under section 27(2), sentence 2, and section 49(1) StGB, and possible cooperation with the investigation pursuant to sections 46b and 49(1) StGB, or does it constitute a less serious case under section 7(2) VStGB?

Specific legal rules and provisions

Section 7(1), subsections (5) and (9), and section 7(2) of the Code of Crimes against International Law (VStGB).

Sections 27 and 46b of the German Criminal Code (StGB).

Article 1(1) of the United Nations Convention against Torture, Cruel, Inhuman or Degrading Treatment of Punishment.

Sections 55, 136, 161, 163a, 100a (2) no. 10(b), 465, 257c, and 267(1), sentence 3, of the German Code of Criminal Procedure (StPO).

Articles 7(2)(a) and 7(1) of the Rome Statute of the ICC.

Court's holding and analysis

The 1st Criminal Panel of the Higher Regional Court of Koblenz established that the events in Syria from the end of April 2011 constituted a widespread and systematic attack against the civilian population within the meaning of section 7(1), VStGB (p. 162). As early as March 2011, security forces increasingly used violence against peaceful demonstrators and opposition members to preserve the power of the government (p. 161). Accordingly, the Panel considered that the Syrian State leadership, the leaders and the officials of the security organs, and particularly the intelligence services collectively implemented the attack (p. 161). The target of the attack was the majority of civilians who took part in the protest movement or who had been critical of the Syrian Government. They were subjected to state violence, including killings, torture, sexual violence, and deprivation of liberty (fulfilling section 7(1) nos. 1, 5, 6 and 9 VStGB respectively) (p.161).

The Panel also established that the main offence constituted torture within the meaning of section 7(1) no. 5 VStGB and severe deprivation of liberty within the meaning of Section 7(1) no. 9 VStGB. It was established that all demonstrators were severely beaten upon their arrival at Branch 251 and subjected to further physical abuse during their detention, at least in the form of beatings. Taking into account the inhumane conditions of detention, the suffering of each victim exceeded the required threshold of seriousness (p. 163).The Panel also found that the deprivation of liberty was severe as it lacked legal grounds and did not meet the requirements of the rule of law. The detainees were not given information on the reasons for their detention or its duration, there were no legal remedies or legal assistance, and their relatives were also not informed of their whereabouts (p. 163). Mr. Al-Gharib was found to have aided and abetted the offence within the meaning of section 27 StGB by contributing to the arrest and detention of the victims through consistent action (p. 164). Al-Gharib’s actions did not stem from necessity as the requirements of necessity, as enshrined in section 35 StGB, were not met (pp. 164-165).

Regarding sentencing, the Panel determined that the offence falls under the category of less serious cases according to section 7(2) VStGB. They also applied the provision of mitigation under section 27(2) StGB and reduced the penalty in accordance with section 46b StGB (p. 165). This was due to the fact that the defendant had incriminated himself when speaking with the German authorities during his asylum procedures about his past in Syria’s Intelligence Service. In addition, since the defendant was part of a military-style command structure and thus was under certain pressure to act, and that he voluntarily deserted from the intelligence service risking himself and his family,the court applied exculpatory weight on his sentencing (p. 167). In addition, it was considered to his favour that Mr. Al-Gharib had already taken a distance to his work for the regime (pp. 166-167). Finally, the Panel concluded that the defendant's testimony was in line with cooperation for an investigation as defined in section 46b (1), as he made statements incriminating the former co-defendant (Raslan) as a leading officer of Branch 251 (p. 171).

Further analysis

‘Reflections on the Eyad Al-Gharib Judgment’, Syria Justice and Accountability Centre, 3 March 2021.

Susann Aboueldahab and Fin-Jasper Langmack, ‘Universal Jurisdiction Cases in Germany: A Closer Look at the Poster Child of International Criminal Justice’, Minnesota Journal of International Law, Vol. 31:2 (2022), pp. 1-34.

Heidi R. Gilchrist, ‘No Hiding from Justice: Universal Jurisdiction in Domestic Courts’, Texas International Law Journal, Vol 57:2 (2022), pp. 215-238.

‘Scratching the Surface: One Year Into the Koblenz Trial’, Syria Justice and Accountability Centre and the International Research and Documentation Centre for War Crimes Trials, April 2021.

Thomas Becker et al., ‘Will Victims’ Rights be Lost in Translation? Bridging the Information Gap in Universal Jurisdiction Cases’, Utrecht Journal of International and European Law, Vol 38:1 (2023), pp. 39-61.

Jeremy Rabkin and Craig S. Lerner, ‘Criminal Justice is Local: Why States Disregard Universal Jurisdiction for Human Rights Abuses’, Vanderbilt Journal of Transnational Law, Vol 55 (2022), pp. 375-432.

Roger Ru Philips,‘A Drop in the Ocean: A Preliminary Assessment of the Koblenz Trial on Syrian Torture’,Just Security, 22 April 2021.

Marc Tiernan and Ahmad Al-Zien, ‘Domestic Modes of Liability in Universal Jurisdiction Cases: The Case of Eyad Al-Gharib in Koblenz, Germany’,Rethinking SLIC, 11 April 2022.

‘Inside the Raslan Trial #28: The Al-Gharib Verdict in Detail’, Syrian Justice and Accountability, 7 May 2021.

Friedrich-Alexander Universität Erlangen-Nürnberg (FAU) and International Nuremberg Principles Academy,‘Case Information Sheet Eyad Al-Gharib’.

See here for the ECCHR collected trial monitoring reports by civil society organizations and other important trial documents such as interventions by joint plaintiffs and CSOs.