Written By Luna Watfa
Translated to English by Diane Lockyer
A Civil Plaintiff and the hearing 18/08/21 where the question of adding « Enforced Disappearance » to the indictment of the accused Anwar Raslan was discussed.
The 18/08/2021 session began with a criminal police investigator and lasted for just ten minutes. He spoke about a document that had been sent to them by the brother of the detainee Hayan Mahmoud who had been forcibly disappeared. The brother confirmed in the letter that the Al-Khatib branch had arrested his brother Hayyan while he was practicing his work as a doctor at the Al-Mujtahid Hospital in Damascus. The party that arrested him had not given any information about him and had not handed over his body even till that day. Therefore, the fate of the detainee Hayyan was considered as an “enforced disappearance.”
A civil plaintiff, against the accused Anwar Raslan, a young man who was arrested by the Al-Khatib branch in 2011, was then summoned.
He described to the judges how he had been arrested when he was heading to Damascus on a Friday in July 2011, and as it was a Friday, there was a demonstration in Damascus called “Damascus Volcano” but he couldn’t remember exactly when it was.
He stopped at a gas station with his companions between Homs and Damascus where apparently there was a clash between the Free Army and Assad’s Army. He saw security forces and buses which stopped after entering the gas station where three officers in a car stopped him and insulted and beat him. They then put the plaintiff and his companions in a bus.
While on the bus, the witness was able to use his mobile phone to call his brother as the security forces were ignoring him. His brother had strong ties with the security forces and managed to make contact where he learned that it was a state security patrol and that they were members of the al-Khatib branch. The plaintiff called the prosecutor once again and told him that he needed to talk to one of the officers present and described him to him. Despite the plaintiff’s efforts to contact the officer, he was not able to and was transported by bus to an unknown place where he stayed for two days, during which he was beaten, insulted and left without any food or drink.
When the plaintiff was still at the station, he spotted an officer behind the bus talking to his officers. After he got out of custody when talking later with those who had been arrested, someone described him as an officer in the Khatib branch whose descriptions were in line with those he had seen at the station, a man in his early fifties, light hair, his chin clean-cut and a mole on his face. He told the judges that he thought he was the accused Anwar Raslan but could not confirm that.
After spending two days in an unknown location, the plaintiff and those with him were taken to the al-Khatib branch, where they were placed in a group cell after being searched and stripped of their outer clothing. The plaintiff said that there were about 24 detainees in the cell, which was approximately 9 square meters in size, and evidently, he described the poor health and general conditions in the prison.
Neither the plaintiff nor his relatives were subjected to any investigation or torture during his presence in the Al-Khatib branch except while getting off the bus, when he was beaten on his way to the building. Thanks to his brother’s mediation, the plaintiff was released after three days and his companions shortly after him not more than a month later.
The plaintiff assured the judges that wasta – personal social connections – and money played a major role for not being subjected to torture and interrogation. However, it didn’t mean he was not beaten and humiliated as every person who entered a security branch would initially be automatically beaten, no matter how great his position.
The plaintiff spent five days in detention between two places – two in an unknown location believed to be affiliated with the Shabiha who were cooperating with al-Khatib branch and three in the al-Khatib branch.
The plaintiff’s testimony ended after several explanatory questions from the parties to the proceedings to clarify the case.
The Public Prosecution then began reading the response to the request submitted by the civil prosecution’s lawyers to add the charge of “enforced disappearance” to the indictment against the accused Anwar Raslan.
The Public Prosecution’s response stated that they did not support the addition of the charge of “enforced displacement” to Anwar Raslan’s indictment and explained the reasons for their refusal in a lengthy statement.
Prolonged detention of witnesses and prosecutors in Syria could be considered “enforced disappearance” but adding it as a charge is something else and the charge of enforced disappearance was not mentioned in the lawsuit.
In fact, the charge of “enforced disappearance” mentioned was incompatible with the meaning of “enforced disappearance” as accurately interpreted in the articles of the German Criminal Code precisely because one of the pillars of any crime was the offender’s knowledge that what he had committed was a crime.
The mere fact that the crime occurred is not sufficient in legal terms because the perpetrator must be able to distinguish between what he did or refrained from doing; he must be aware of the gravity of the crime; he must have been fully willing or not compelled into doing so. In the absence of such discrimination or awareness, the perpetrator’s criminal responsibility remains inconclusive.
In that case, it would mean that adding such a charge would require a government request be submitted from Germany to Syria with the accused’s knowledge in order to know the extent to which the Syrian government was aware of this crime.
Legally speaking, in the event that a request should be submitted by the civil prosecution, the public prosecution then expresses its position on it, and has the right to support the request or not, but the final decision is for the bench – the panel of judges.
This is what happened concerning the charge of sexual violence when the public prosecution did not support the civil prosecution’s request to add it as a new accusation in the indictment. However, the judges eventually agreed to add it to the indictment.
In conclusion, each party has the right to express its opinion on the requests put forward, but the bench – the judges’ panel – is the one who has the final decision after hearing all the opinions raised.