Related Rule
Germany
Practice Relating to Rule 100. Fair Trial Guarantees
Section G. Examination of witnesses
In 2003, in the El Motassadeq case, Germany’s Third Criminal Law Senate of the Hanseatic Higher Regional Court Hamburg found the accused guilty of aiding and abetting murder in 3,066 cases as well as attempted murder and causing bodily harm with dangerous means in five cases, in coincidence with membership in a terrorist organization, for contributions to the attacks of 11 September 2001. He was sentenced to 15 years in prison. The Senate held that the circumstance that the witness Binalshib could not be examined was no violation of the right to a fair trial under Article 20, paragraph 3 of the Basic Law. 
Germany, Hanseatic Higher Regional Court Hamburg, Third Criminal Law Senate, El Motassadeq case, Judgment, 19 February 2003, pp. 56–61.
In 2004, on the accused’s appeal on points of law (Revision), the Federal Court of Justice overturned the judgment and remanded the case to another Senate of the Higher Regional Court. The Federal Court of Justice held:
II. The consideration of the evidence regarding the involvement of the accused in the planning and preparation of the attack, which is at the basis of the findings of the Higher Regional Court, does not hold out against the court of appeal’s examination of the material error assigned.
2. … In its consideration of the evidence, the Higher Regional Court … did not take into account an essential circumstance which could have influenced the formation of its conviction of the facts. It did not take into account the fact that its ability to establish the truth was limited because, due to measures by the US government and the German government, neither could Binalshib, a person involved in the act, be examined in the main hearing, nor could the content of records of his examinations elsewhere be introduced into the hearing of evidence.
The Higher Regional Court found in this respect: Binalshib had been arrested in September 2002, and was in the custody of US authorities. It had been impossible to clarify whether he had made statements relating to the involvement of the accused in the act. The witness W. – an FBI official, examined by the Higher Regional Court in relation to the investigation in the United States and on whose statement the Higher Regional Court to a large extent bases its findings regarding the attacks in the United States and its consequences – had not been authorized to make statements in relation to potential information by Binalshib on the involvement of the accused in the act. The Federal Chancellery and the Federal Ministry of the Interior had declined to provide information on the content of documents on “intelligence service questionings” of Binalshib, which “authorities of the United States“ had made available to the Bundesnachrichtendienst [Federal Foreign Intelligence Service] and the Bundeskriminalamt [Federal Criminal Police Office].
These explanations show that the Higher Regional Court tried to obtain a statement by Binalshib or to clarify the results of his examinations in the United States, but that these efforts were unsuccessful because the US government denied the cooperation necessary for this and because the German government issued blocking declarations under Section 96 of the Code of Criminal Procedure with regard to the examination documents received from the United States …
3. The Higher Regional Court could not deal with these events and the related motions of the defence solely from a procedural perspective. If a central means of evidence cannot be introduced into the main hearing due to a blocking declaration or a declined authorization to make statements, although without the blocking declaration or the declined authorization to make statements the taking of the evidence would have been demanded by the court’s obligation to establish the truth by extending the taking of evidence to all facts and means of proof relevant to the decision (Section 244, paragraph 2 of the Criminal Procedure Code) or a motion by the accused to take the evidence could not have been denied based on one of the reasons for denial listed under Section 244, paragraphs 3–5 of the Criminal Procedure Code, the court trying the facts, when forming its conviction of the facts, must take into consideration the resulting reduction of its possibilities to establish the facts as well as the curtailment of the accused’s rights of defence and discuss this limitation in the grounds of the judgement in the context of the consideration of evidence. Otherwise, its consideration of evidence is incomplete and the right of the accused to a fair trial in compliance with the rule of law (Article 20, paragraph 3 in conjunction with Article 2, paragraph 1 of the Basic Law; Article 6, paragraph 1 of the European Convention on Human Rights) is violated.
a) What the legal consequences are if an important means of evidence cannot be introduced into the proceedings because the executive prevents this by issuing a blocking declaration or by refusing the necessary authorization to make a statement, with the consequence that it remains open whether the taking of the evidence would have incriminated or exculpated the accused or would have been unproductive, has not yet been finally clarified. However, according to the consistent case law of the Federal Court of Justice a conflict between, on the one hand, the secrecy interests of the executive and, on the other hand, the defence interests of the accused as well as the obligation of the court to establish the truth (Section 244, paragraph 2 Criminal Procedure Code), must not lead to negative effects of the secrecy interests on the accused. In such cases the limitation of the evidentiary basis and therefore of the court’s possibility to establish the facts must be taken into account in the form of a particularly careful consideration of evidence and, as the case may be, an application of the principle of in dubio pro reo
b) The application of the principle of careful consideration of evidence and, as the case may be, the principle of in dubio pro reo must be stated precisely for the cases here in question:
The required compensation of the limitation of the evidentiary basis due to executive measures is to be undertaken in the context of the consideration of evidence not in such a manner that defensive submissions by the accused, whose accuracy could have been tested by taking the blocked evidence, are to be treated as correct, in direct application of the principle of in dubio pro reo.
[Such] an understanding does not do justice to the function and meaning of the principle of in dubio pro reo. The principle does not allow any inference whether a statement would have been rich or rather poor in details, or traceable due to the linking of plausible factual elements or rather one-dimensionally limited to a specific core statement. Furthermore, the principle of in dubio pro reo is not a rule of evidence but a rule of decision, which the court has to follow only when, after completion of the consideration of evidence, it is not able to come to the full conviction of the existence of fact directly relevant for the judgement regarding guilt and sentence …
The blocking of evidence by the executive is to be taken into account as one element only at the stage of the concluding evaluation of the whole evidentiary result. Doing this, the court trying the facts must consider the possibility that the blocked evidence, had it been introduced into the main hearing, would have confirmed the exculpating submission or the exculpating allegation of evidence by the accused. The court must confront this possibility with the further evidentiary result and decide on this basis, in application of the principle of in dubio pro reo, whether the potentially exculpating result of the omitted taking of evidence is rebutted by the usable further evidence to the extent that, despite the reduced basis for the establishing of facts, the main hearing as a whole supports the conviction of the guilt of the accused … The more the result of the taking of evidence could be reconciled with the exculpating submission of the accused, the closer the blocked evidence is to the act and the more it therefore potentially could have contributed to its clarification, the higher are the demands to be made to the argumentative effort of the court trying the facts as regards the reasons for its conviction of the guilt of the accused, in particular if the evidence on which it is basing this conviction only in a circumstantial manner indicates the guilt of the accused.
Only if the evidence is, in this manner, evaluated carefully and with respect to the principle of in dubio pro reo, the circumstance is sufficiently taken into account that it is exactly the executive, conducting the criminal prosecution, – and not for example a witness using his right to refuse testimony or to give certain information (e.g. under Sections 52, 53, 53 a or 55 of the Criminal Procedure Code), or an objective circumstance (e.g. an actually unobtainable witness) – which reduces the evidentiary basis for a point requiring clarification and thereby, at least potentially, deprives the accused of a possibility to exculpate himself.
4. After all this, the Higher Regional Court could not content itself with the finding that Binalshib, a person involved in the act, was not available for an examination and that it had been impossible to clarify whether, during his examinations by US authorities, he made statements on the involvement of the accused in the planning and preparation of the attacks of 11 September 2001, and if yes, what statements.
According to the findings in the judgement, Binalshib had a central position in the act. Based on his direct experience, he could have reported on the course of the planning and preparation of the attacks as well as on the knowledge of the accused … The examination of Binalshib or at least the introduction of the content of the documents on his examinations in the United States therefore were demanded by the court’s obligation to establish the truth by extending the taking of evidence to all facts and means of proof relevant to the decision.
Since due to the blocking of the evidence this clarification was not possible, the Higher Regional Court, in its consideration of evidence, would have had to take into account the possibility that Binalshib, in an – at least as such plausible and traceable – statement, would have confirmed the defence submission of the accused, or that such a confirmation could have resulted from the examination records …
The Higher Regional Court omitted doing all this. It merely referred the accused to the possibility of reopening the proceedings, should the witness Binalshib be available as a witness at a later point in time. Its judgement therefore cannot be upheld.
III. The blocking of evidence by the executive here does not lead to an obstacle to proceedings which would have the termination of the proceedings as consequence. Admittedly, extraordinary cases can be thought of in which a violation of the fair trial principle deprives the proceeding as a whole of its basis and forces its termination … However, this only comes into question if fair criminal proceedings in line with the rule of law can, even with compensating measures in favour of the accused, no longer be ensured. As regards the blocking of evidence by the executive, this can only be the case if the measures of the executive reduce the evidentiary basis for the court trying the facts in such a manner that, even when taking into account the principles of careful consideration of evidence described above and when applying the principle of in dubio pro reo, a judicially responsible formation of the court’s conviction of the result of the evidence taken can no longer be guaranteed, a formation of the court’s conviction which satisfies the requirements of the rule of war and the position of the criminal courts to investigate the true factual situation independent from influences of the executive, guaranteed under constitutional law. It has not yet come so far here. Despite the refusal of the US government to make an examination of the witness Binalshib possible as well as to authorize the witness W. to make a statement on the content of the examinations of Binalshib in the US, and despite the blocking by the German government of the transferred records of “intelligence service questionings” of Binalshib and the witness Z. – allegedly detained in Syria – , an independent consideration of evidence by the new court trying the facts is still possible. However, the competent authorities will have to assess again whether, in the interest of finding the truth, there are no possibilities to make available the evidence blocked so far at least to a limited extent, without legitimate secrecy interests thereby being infringed. 
Germany, Federal Court of Justice, El Motassadeq case, Judgment, 4 March 2004, pp. 7–21.
In 2005, the Fourth Criminal Law Senate of the Hanseatic Higher Regional Court Hamburg found the accused guilty of membership in a terrorist organization and sentenced him to seven years in prison. The Senate found that it had not been proven that the accused had aided and abetted murder, attempted murder and causing bodily harm with dangerous means. With regard to the consideration of summaries of witness statements received from the United States as evidence, the Senate stated:
m) Consideration of evidence relating to the summaries of statements made by Binalshibh, Khalid Sheikh Mohammed and Ould Slahis after their arrest, transferred from the United States to the Senate
The Senate considers the summaries of statements made by Binalshibh, Khalid Sheikh Mohammed and Ould Slahi, described above, as usable. A prohibition on their use according to Article 15 of the 1984 UN Anti-Torture Convention or Section 136 a of the Criminal Procedure Code, in analogous application, is not given. However, the Senate ultimately has not based any conclusions on the summaries of the statements made by Binalshibh, Khalid Sheikh Mohammed and Slahi, introduced into the main hearing by their being read out …
Article 15 of the Convention, entered into force for the Federal Republic of Germany on 31 October 1990, provides that each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. According to Article 1, paragraph 1 of the Convention, torture within the meaning of that provision means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
In the view of the Senate, the prohibition on the use of statements under Article 15 of the UN Anti-Torture Convention is domestically directly applicable law and therefore is to be taken into account and applied here …
However, the application of the prohibition on the use of statements requires that it is established that the statements in question were made as a result of torture. Based on the information available to the Senate and introduced by way of informal taking of evidence, it has not been possible to establish this in the criminal proceedings against the accused.
The competent US authorities, also in response to several enquiries by the Senate on this issue, have given no information on the whereabouts of Binalshibh, Khalid Sheikh Mohammed as well as Slahi … In response to the specific enquiry by the Senate regarding the circumstances of the examinations of the persons mentioned, the competent US authorities, by letter of 9 May 2005, gave the concluding notification that no information would be given … The authorities of the Federal Republic of Germany asked by the Senate for information, the Federal Chancellery, the Federal Ministry of the Interior and the Federal Ministry of Justice, issued blocking declarations in response to several enquiries by the Senate for further information inter alia regarding the persons mentioned above, in which they pointed out that they had not been authorized by the competent authorities of the United States to make the information, given to them solely for intelligence service purposes, available in the present criminal proceedings against the accused …
Ultimately, as regards the question of the use of torture measures within the meaning of Article 1 of the UN Anti-Torture Convention in connection with the examinations of Binalshibh, Khalid Sheikh Mohammed and Slahi on which the transferred summaries were based, the Senate analysed the publicly accessible sources therefore solely available to it, and by way of informal taking of evidence introduced numerous publications, those originally in English in translation, into the main hearing …
In the view of the Senate, the analysis of the articles and reports introduced ultimately showed that the Government and Ministry of Defense of the United States, on the one hand, denied the use or tolerance of torture, that however, on the other hand, the Government (the White House) at least acknowledged that Al Qaida detainees were not regarded as subject to the protection of international human rights conventions such as the Geneva Convention relative to the Treatment of Prisoners of War. Apart from that, there were indeed indications in the articles and reports introduced into the main hearing that alleged Al Qaida members were subjected to torture measures within the meaning of Article 1 of the UN Anti-Torture Convention. However, such measures cannot be proven by this, since none of the introduced articles and reports give verifiable sources.
…[I]n conclusion, the Senate does not regard as established within the meaning of Article 15 of the Convention the use of torture measures within the meaning of Article 1 of the UN Anti-Torture Convention in connection with the examinations of Binalshibh, Khalid Sheikh Mohammed and Slahi, on which the summaries transferred from the United States are based.
The Senate is aware that in the present case it is the State organs of the United States, the State accused of torture in the introduced articles and reports, themselves, from which more reliable and verifiable information, compared to the available articles and reports, could be expected. Admittedly, due to the lack of information regarding individual cases to be assessed here, this circumstance suggests that one infers from other cases or a general practice a corresponding handling in the relevant individual cases and regards the use of torture as established. However, in the present case, apart from the weak evidentiary situation caused by the blocking by the US authorities, there is another essential circumstance due to which the Senate in the present case does not infer from the practice in other cases or a general practice a corresponding handling in the cases of interest here and, in conclusion, regards the use of torture measures as not established.
The essential circumstance, further to the bad evidentiary situation, on the basis of which the use of torture is ultimately regarded as not established is that, according to the summaries made available to the Senate, all three persons examined made both inculpating and exculpating statements with respect to various other persons …
Since the content of the summaries of statements by Binalshibh, Khalid Sheikh Mohammed and Slahi, transferred by the US authorities, could, due to the numerous statements exculpating other persons contained in them, speak against the use of torture, the Senate overall has come to the conclusion not to regard as established a violation of Article 15 UN Anti-Torture Convention which would give rise to a prohibition on the use of evidence.
As regards the summaries of statements by Binalshibh, Khalid Sheikh Mohammed and Slahi made available to the Senate by the USA, a prohibition on the use of evidence also does not follow from an analogous application of Section 136 a of the Criminal Procedure Code in conjunction with Section 69, paragraph 3, Section 163 a, paragraphs 1, 2 and 4 of the Criminal Procedure Code. Section 136 a of the Criminal Procedure Code prohibits the use of such statements which were obtained under the employment of the impermissible measures listed in detail in paragraphs 1 and 2, and, according to paragraph 3, even if the accused consents to their use. According to the correct view, the prohibition, if applicable, applies without distinction for both inculpating and exculpating statements.
However, the provision of Section 136 a of the Criminal Procedure Code primarily is directed to the State organs responsible for criminal prosecution and covers only measures of public prosecution organs of the Federal Republic of Germany. As a principle, the provision of Section 136 a of the Criminal Procedure Code does not have a third-party effect for persons not belonging to this circle. According to the correct predominant view, an analogous application of Section 136 a of the Criminal Procedure Code with regard to third persons not directly covered by the norm only comes into consideration if such persons produced the information whose usability is in question in connection with an especially crass violation of the dignity of the human being. Among such crass violations are in particular also torture measures falling under Article 15 of the UN Anti-Torture Convention …
In the view of the Senate, the principles developed by the courts on the analogous application of Section 136 a Criminal Procedure Code demanded in exceptional cases in view of impermissible examination measures by private persons … also apply if nationals of foreign States use such examination measures. An analogous application of the prohibition on the use of evidence under Section 136 a of the Criminal Procedure Code to the present summaries of the statements by Binalshibh, Khalid Sheikh Mohammed and Slahi therefore would come into consideration, provided that the further requirements on the application of Section 136 a of the Criminal Procedure Code are fulfilled. Ultimately, however, this is not the case.
Section 136 a of the Criminal Procedure Code does not expressly regulate the evidentiary principles and standards to be applied in the establishment of a violation of the prohibition [contained in Section 136 a of the Criminal Procedure Code]. These principles and standards, however, follow from the position of the norm within the system of norms applicable to domestic criminal proceedings and from the object and purpose of Section 136 a of the Criminal Procedure Code. Essential in this context is the understanding of the transgressions regulated in Section 136 a of the Criminal Procedure Code as procedural violations, which, like generally all procedural requirements and violations, must be proven in order to be taken into account. If a violation of the prohibition on the use of evidence is not proven, the statement in question therefore can be used … The reason for this correct view is in particular that on the basis of the judicial obligation to establish the truth the non-usability of given evidence must be the exception and must not be made the rule. Unlike in connection with facts relevant for the guilt of an accused, the principle of in dubio pro reo does not apply to the establishment of the existence of a prohibition on the use of evidence … The facts giving rise to a prohibition on the use of evidence must, after the necessary informal clarification, be established to the conviction of the court. If important doubts remain, a potential violation is not proven and the statement in question can be used. This is the case here with regard to a potential use of torture measures, also falling under Section 136 a of the Criminal Procedure Code, against Binalshibh, Khalid Sheikh Mohammed and Slahi. Admittedly, there are points indicating the use of such measures, but, on the other hand, there are also circumstances speaking against it.
Insofar as with regard to Binalshibh, Khalid Sheikh Mohammed and Slahi, beyond the use of torture measures, a violation of Section 136 a of the Criminal Procedure Code comes into consideration on the basis of the fact of their long-lasting detention without trial and without access to defence counsel or other external persons, it admittedly seems more likely to regard these circumstances as proven, in comparison to potential torture measures. Whether, however, this would ultimately have to be assumed, need not be decided. According to the correct view, an analogous application of the prohibition on the use of evidence codified in Section 136 a of the Criminal Procedure Code comes into consideration only in cases of especially grave human rights violations. The denial of an orderly trial as well as the non-granting of liberty and external contacts does not yet fall under that, at least after the time span of three years to be assumed here, in the case of Binalshibh arrested in September 2002 and in the case of Khalid Sheikh Mohammed arrested in March 2003. In this context, it is to be borne in mind that the American legal order apparently permits such a treatment of the Al-Qaida members.
According to the explanations above, the summaries of the statements of Binalshibh, Khalid Sheikh Mohammed and Slahi can be used. They must be subjected to a thorough consideration of evidence. However, no changes of the findings made by the Senate without taking into account these summaries, or of their assessment, result from them. 
Germany, Hanseatic Higher Regional Court Hamburg, Fourth Criminal Law Senate, El Motassadeq case, Judgment, 19 August 2005, pp. 298, 305–309 and 310–314.
In 2006, on the appeal on points of law (Revision) by the Federal Prosecutor General and private accessory prosecutors, the Federal Court of Justice overturned the conviction, finding the accused guilty of aiding and abetting murder in 246 cases (passengers and crews of the hijacked planes), in coincidence with membership in a terrorist organization, and, with regard to sentencing, remanded the case to another Senate of the Higher Regional Court. 
Germany, Federal Court of Justice, El Motassadeq case, Judgment, 16 November 2006, p. 3.
On 8 January 2007, the Seventh Criminal Law Senate of the Hanseatic Higher Regional Court Hamburg sentenced the accused to 15 years in prison. 
Germany, Hanseatic Higher Regional Court Hamburg, Seventh Criminal Law Senate, El Motassadeq case, Judgment, 8 January 2007, p. 2.
By decision of the Federal Constitutional Court of 10 January 2007, the accused’s constitutional complaint against the 2005 judgment of the Hanseatic Higher Regional Court Hamburg and the 2006 judgment of the Federal Court of Justice was not accepted for decision, for being partially inadmissible due to lack of substantiation, and furthermore unfounded. 
Germany, Federal Constitutional Court, El Motassadeq case, 2 BvR 2557/06, Decision, 10 January 2007, §§ 1–14.
By decision of 2 May 2007, the Federal Court of Justice dismissed as unfounded the accused’s appeal on points of law (Revision) against the 2007 judgment of the Hanseatic Higher Regional Court Hamburg, the judgment thereby becoming binding. 
Germany, Federal Court of Justice, El Motassadeq case, Decision, 2 May 2007.