Appeals Judgment in the Case of Anwar Raslan

Court	Third Panel of the Federal Court of Justice, Germany
Case number	3 StR 454/22
Decision title	Order
Decision date	20 March 2024
Categories	Crimes against humanity, Torture
Keywords	crimes against humanity, torture
Other countries involved	Syria

Summary

Mr Raslan was accused of committing crimes against humanity, torture, rape, sexual coercion, murder, and numerous other serious crimes in violation of international law. In 2022, the Koblenz Higher Regional Court convicted him for his part in Syria’s violent suppression of oppositionists and sentenced him to life in prison. Mr Raslan appealed his conviction on several grounds, which the present Appeals Order assessed.

First, Mr Raslan argued that since he was acting on behalf of the Syrian government, his actions should be immune to prosecution. The court disagreed, stating that acting under the direction of the state does not provide immunity for the commission of international crimes. Second, Mr Raslan argued that allowing the prosecution to read a UN Commission of Inquiry report to establish much of the factual background violated a rule that normally requires an individual to testify to their findings. The court disagreed and applied an exception that allows reports from public authorities to be read in court without calling the authors to testify. The court reasoned that the United Nations is to be treated on a par with any German public authority, and as a public authority, its reports are generally considered reliable. It also explained that the experts who drafted the reports would likely have little to add beyond what is already written, so requiring them to testify would be unreasonably burdensome without providing any real benefit.

Third, Mr Raslan challenged several of his convictions on multiple grounds. The court reduced a conviction of rape to sexual coercion because, at the time the crime was committed, the law required Mr Raslan to be physically

present, which he was not. The court also overturned two counts of sexual coercion because those two crimes were already tried correctly in his conviction for crimes against humanity. In other words, he cannot be convicted of the same crime twice. Two counts of sexually abusing prisoners were reduced to aiding and abetting the sexual abuse of prisoners because, like his former rape conviction, the law at the time required that he be physically present, and he was not. Finally, his last count of sexual abuse of a prisoner was overturned and dismissed because the government only has five years after the crime to bring charges for this offense.

Mr Raslan’s sentence of life imprisonment remained unaltered.

Procedural history

In mid-December 2012, Mr Raslan fled Syria to Jordan following a massacre in his hometown (Trial Judgment, pp. 9–10).

On 8 May 2014, on the recommendation of Syrian opposition leaders, he was granted a visa by the German Foreign Office (pp. 10–11).

On 23 February 2015, Mr Raslan filed a police report that he believed the Syrian government was following him and plotting to kill or kidnap him. Authorities were unable to verify his claims but did grow suspicious of his military connections (p. 12).

On 26 October 2017, while being interviewed by the police about another suspect, the accused divulged information about systemic torture in Syria, which prompted the police to open an investigation (p. 12).

On 7 February 2019, Germany’s Federal Prosecutor’s Office obtained an arrest warrant and subsequently arrested Mr. Raslan on 12 February 2019 (p. 12).

On 13 January 2022, the Higher Regional Court in Koblenz, Germany, convicted Mr Raslan of crimes against humanity, including torture, murder, and sexual violence. Immediately following the judgment, the accused filed an appeal (pp. 2–3).

On 20 March 2024, the Third Criminal Panel of the Federal Court of Justice issued its ruling on Mr Raslan’s appeal (Appeals Order, p. 2).

Related developments

On 5 August 2024, the court’s decision was made public in a press announcement formally rejecting the appeal.

Legally relevant facts

In no later than April 2011, the Syrian government ordered its security forces to violently suppress protests against President Bashar al-Assad’s regime, leading the security forces to arrest, imprison, torture, and kill protesters and opposition members. Their goal was to gather information about other opposition members and to intimidate the public, thereby preventing future protests (Appeals Order, para. 3).

Officers were able to torture on their own initiative and often did so when prisoners refused to answer their questions or when they did not like the prisoner’s answer to their question (paras. 4–5). Nearly all estimated 4,000 prisoners were tortured, some experienced sexual abuse, and all endured overcrowding, malnutrition, and sleep deprivation (paras. 6–8). At least 27 prisoners died, including a 7-year-old child (para. 7).

Mr Raslan served as the deputy director of the prison, led the Interrogations Unit, and held the rank of colonel. He was responsible for managing the prisoners, overseeing prisoner treatment, and conducting interrogations. He directly supervised 5 to 10 interrogators and the prison director. In practice, he had full decision-making authority regarding the prisoners’ treatment and detention (para. 9).

Core legal questions

Are UN Commission of Inquiry reports admissible under the public authority exception to the principle of immediacy under the Code of Criminal Procedure § 256 (1) no. 1 (a)?

Does general functional immunity extend to crimes against international law as defined by customary international law and the Rome Statute of the International Criminal Court, as codified in the German Code of Crimes against International Law?

Did the Higher Regional Court err in applying the current version of the German Criminal Code rather than the version in effect at the time of the crimes’ commission?

Specific legal rules and provisions

Sections 250, 256 (1), German Code of Criminal Procedure (Strafprozeßordnung)

Sections 2 (1), 177, German Criminal Code (2016) (Strafgesetzbuch)

Section 78b (1), 174a, German Criminal Code (2021) (Strafgesetzbuch)

Section 7 (1), Code of Crimes against International Law (Völkerstrafgesetzbuch)

Court's holding and analysis

On substantive charges, the court adjugated the verdict under the pre-2016 § 177 of the German Criminal Code and related provisions: one incident was reclassified from especially serious rape to especially serious sexual coercion; prisoner-abuse counts were recast as aiding under § 27 and § 174a, with one count time-barred; and two sexual coercion counts were overturned (Appeals Order, paras. 36 and 38–39). These modifications did not affect the sentence, as convictions under § 7(1) no. 1 of the Code of Crimes against International Law and § 211 of the German Criminal Code required life imprisonment (para. 46).

The court held that UN Commission of Inquiry reports fall within § 250 of the Code of Criminal Procedure, which requires facts based on observation to be testified to at trial by the observer, but the document may nevertheless be read and used as evidence under § 256 (1) no. 1(a) without such testimony (para. 20). The court reasoned that the public authority exception need not be limited to entities of the German state and since the Commission is tasked with preforming public duties and is part of the United Nations which is to be treated as having equivalent authority under the rule as German authorities, should qualify as a public authority (paras. 21–22).

The court confirmed that general functional immunity does not extend to crimes against international law (para. 32). Acts constituting crimes against humanity and war crimes, grounded in customary international law and reflected in the Rome Statute and Germany’s Crimes against International Law legislation, are prosecutable in German courts regardless of the perpetrator’s rank or status (para. 32). Special immunities (e.g., diplomatic) were not at issue in the present case (para. 34).