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The Fruits of Torture: Stammheim trial confirms criticism of German anti-terrorist laws, by Christina Clemm and Ulrich von Klinggräff

01 April 2009

Since March 2008, five alleged members of the banned Turkish organisation the Revolutionary People's Liberation Party-Front (DHKP-C} have been awaiting trial at the regional high court in Stuttgart (Stammheim). It will be the first trial in Germany on the grounds of Article 129b of the Criminal code (§ 129b StGB), under which people can be prosecuted for having supported terrorist activities outside of Germany, in this case in Turkey, as members of a foreign terrorist association. The prosecution’s indictment is based on statements made by witnesses and suspects to the Turkish police even though there is a high probability they were extracted through the use of torture. But the German state does not only flirt with the circumvention of the torture ban in this trial. It is evident – as the German police admitted in 2004 – that the alleged arms transport was guided by the MIT Turkish intelligence agency to criminalise the DHKP-C in Germany where the organisation is banned.

The trial of five alleged members of the banned Turkish DHKP-C organisation started on 17 March 2008, although some of the accused have been remanded in custody since November 2006. The prosecution has accused them of having supported terrorist activities from within Germany as part of a so-called “rear frontline” (Rückfront). The case centres on a questionable arms shipment carried out by an alleged double agent.

The anti-terrorist provision Section 129b StGB, which came into force in 2002, has for the first time brought foreign terrorist organisations under the jurisdiction of the German Criminal Code. It had previously been applied predominantly against Islamic groups and this represents its first use against a left-wing group. The DHKP-C developed out of the Dev-Sol (Revolutionary Left) organisation which, until the military coup of 1980, was relatively influential in Turkey. Its successor organisation, DHKP-C, was banned in Germany in 1998.

The shortcomings of the Stammheim trial highlight criticism levelled against Section 129b StGB. As with Sections 129 and 129a StGB, they concern the almost unlimited special police powers during investigative proceedings, the application of the criminal law as a preventative measure (used before a crime has been committed) and its lack of legal definition. In addition, Section 129b StGB specifically leaves room for the proceedings to be heavily influenced by the secret services, uses evidence extracted with the aid of illegal interrogation techniques and violates the principle of the separation of powers, namely the separate and independent powers and areas of responsibility of the executive, legislature, and judiciary.

In a Section 129b procedure relating to organisations from non-EU countries the prosecution only acts on the order of the Federal Ministry of Justice. The criminal prosecution is thereby subordinate to a preliminary political testing by the executive which then rules on whether or not a prosecution is appropriate in each individual case. Its decision is dependent on current affairs and strategic alliances: is a particular group a "terrorist" group or does it involve freedom fighters? What are the potential diplomatic ramifications of a criminal prosecution in Germany?

For example, the German government’s treatment of the Afghani Taliban was inconsistent because it was based on fluctuating political considerations. This also illustrates how the judiciary has to subordinate itself to the executive in conflict with the democratic principle of the separation of powers.

The prosecution’s case legitimates torture in Turkey

The public prosecutor’s indictment against the alleged DHKP-C members is based on files sent to Germany by Turkey under the framework of mutual cooperation in judicial proceedings. The files mainly comprise transcripts of the interrogations of witnesses and suspects by the Turkish police in relation to proceedings against alleged DHKP-C members in Turkey. These recycled documents are supposed to prove in the Stammheim trial that a series of attacks in Turkey were committed by the DHKP-C, as well as establishing facts on the structure and working methods of the organisation in Germany.

The files are included in the proceedings through the testimonies of Turkish police officers and German Federal Crime Police Authority (Bundeskriminalamt, BKA) officers who evaluate the documents. The defence has vehemently rejected this method of fact-finding and evaluation because there is evidence pointing to the statements having been extracted through the use of torture. Although the Turkish police files are incomplete and references to illegal interrogation methods removed, not all traces of torture could be hidden.

The defence supported its objection to the use of this evidence with two reports on the "democratic principles in political trials in Turkey". In them Turkish expert, Helmut Oberdiek, reached the conclusion that in political prosecutions Turkish police systematically apply - or use the threat of - torture. This finding was supported by graphic statements from some of the accused about how they were tortured.

The defence's position also finds support in Germany's jurisprudence on administrative procedures. Here it is standard procedure to accept that Turkish citizens who are suspected of membership or support for the DHKP-C were likely to face a significant risk of torture, therefore deportations to Turkey are prohibited in these cases.

The Stuttgart higher regional court has not yet ruled on this matter but there are indications it will reject the defence's objection and follow the prosecution’s legal interpretation. In a Statement released on 9 July 2009, the Counsel for the Prosecution confirmed its opinion that a ban on the admission of evidence in court would only be considered if evidence could be produced for each individual interrogation proving that statements were extracted in violation of human dignity [1]. This amounts to a reversal of the burden of proof.

The cynicism of the prosecution’s case is exposed in the same Statement:

Because [neither the fact that Turkey continues to torture], nor the facts and figures presented by the defence, prove the claim that statements made by witnesses and suspects are exclusively extracted with the use of torture in Turkey.

So while the prosecution does not deny that torture frequently occurs in Turkey, it believes the practice to only be of importance for the Stammheim trial if it is proven in each individual case. The absurdity of this legal opinion is obvious: how exactly could such evidence be produced? Should we wait upon a frank admission by the Turkish state or a self-incriminating confession by the torturer?

It is notoriously difficult to produce concrete proof of the use of illegal interrogation methods in proceedings without foreign involvement, and the verification of statements made outside Germany is exceptionally difficult. As a rule, summoning witnesses fails because they cannot be found. In the Stammheim trial, Turkey's aspirations for EU membership are an added burden, as the country wants to give the appearance of adhering to human rights standards and democratic principles. To depend on Turkey’s cooperation in cases of torture allegations would be a denial of justice.

The recurring problem of finding evidence of torture is to the disadvantage of the accused. Therefore it should be the police and prosecution who bear the burden of proving that evidence has been collected in adherence to the Anti-Torture Convention. This is also in accord with the case law of the European Court of Human Rights. Inadmissibility should be assumed when there are concrete indications that a violation of the torture ban has occurred [2]. As Ambos puts it:

For a democracy with independent judges who place a fair criminal trial at the centre of democratic principles, the serious risk of a conviction on grounds of evidence produced by means of torture should be unbearable.[3]

The prosecution’s argument was aggressively defended at last year's bi-annual meeting of the Association of German Jurists. However, it results in a situation in which torture applied outside of Germany can undermine the German ban on using evidence extracted by means of torture - a legal norm enshrined in the German Criminal Procedural Act as well as the UN Anti-Torture Convention. This implies that the German criminal justice system indirectly legitimises torture in Turkey and elsewhere. The Stuttgart high regional court does not appear to have any serious concerns regarding the admissibility of the statements coerced in Turkey.

Torturing Turkish officers as witnesses in Stammheim?

Two high-ranking police officers from the terrorism department of the Istanbul police headquarters were invited to the main trial dates of 6, 7, 13 and 14 October 2008. The defence objected vehemently on the basis of their likely involvement in torture during interrogations. The court, however, ignored the objections and heard evidence from Turkish officer B. The cross-examination of the Istanbul anti-terror department chief of police is planned for a later date.

The defence has learnt that B is facing two criminal proceedings in Turkey following accusations of torture. The defence’s application to use the relevant Turkish investigation files in the current trial has not yet been dealt with. This is despite the fact that the BKA liaison officer in Istanbul, on inquiry by the Stuttgart court, has confirmed the preliminary investigations into the torture allegations.

It is noteworthy that in writing to the public prosecutor the BKA uncritically repeats, almost word for word, the Turkish police’s perspective in relation to the allegations. The BKA letter-headed paper says:

However, it was pointed out that a charge brought against police officers, especially those in the secret service and terror departments, is a common practice by suspect’s lawyers. [It is said] that there is hardly a police officer with the Istanbul [police headquarters] who has not been accused of using torture. According to the Turks, however, it is 10 years since there have been any assaults on suspects. Rather, [they reported] that special conflict management training has since been introduced, to educate officers to be even-handed.

The main witness: a double agent with psychological problems

Alongside the Turkish police files the prosecution's accusations are based on the statements of an alleged double agent. Hüseyin H. claimed at his trial to have worked for the German regional internal security service of Rhineland-Pfalz as well as for the Turkish intelligence agency MIT. In this context, he alleges in the current trial to have driven a car from Germany to Bulgaria on the order of the five suspects. In Bulgaria, he says, the car was loaded with weapons. On the order of the Turkish intelligence service he then drove the vehicle to the Turkish border and abandoned it.

On the basis of his testimony, H. was released from remand custody, placed under the witness protection programme and, after providing a confession, was given probation. Neither then nor now were the investigative authorities interested in the fact that H. provided different statements throughout his interrogation. In the Stammheim trial, H. is denying he had any contacts with the security services. Rather, he claims he only professed his secret service activities to appear more important and get out of prison. H. does not give an altogether stable impression. He describes himself as a warrior and a fighter against injustice, on some occasions as a CIA or Mossad agent, but also as a liar and someone who says whatever comes to mind "which ever is best for me at that moment!" During trial proceedings he was often abusive and extremely aggressive towards the accused. Time and again he has had what appear to be “controlled” anger attacks that can only be curtailed by interrupting the trial and the intake of heavy anti-psychotic drugs.

H.'s statements were already contradictory in the preliminary investigation. In any case, the prosecution should have had serious doubts as to the admissibility of statements made by a double agent who would benefit from premature release from remand imprisonment on their grounds. The charges should have been dropped because they rest on the statements of this witness. Instead, the court is trying to retain the witness by constructing a partial inability to testify. The fact that the court wants to keep H. as a witness speaks volumes.

In November 2003, the weekly news magazine FOCUS reported on the alleged arms shipment under the headline: “Hot trail to the consulate". The article says:

Despite its ban, the DHKP-C still has 1,000 members in Germany - they therefore present a continuous provocation for Turkish security authorities. [BKA] investigating officers from Mainz therefore assume in the case of Hüseyin H. that Ankara wanted to put the DHKP-C in the spotlight with a meticulously planned [secret service] operation. With the help of the hired informant Hüseyin H., they wanted to prove that the insurgents were supplying their comrades in Turkey from Germany. Parts of the investigation files point to this conclusion.[4].

It can be assumed that alongside the "investigating officers form Mainz", the Munich news journal also had access to more sources. But the investigation files in themselves, and not least the testimony of the witness H., contain unambiguous clues about the MIT having steered the double agent, and they point to the fact that H. was acting as an agent provocateur. It will be the defence’s task to investigate the facts and bring them to the attention of the court.

Unsecured data as evidence?

The manner in which the court treats the exhibits that were allegedly secured in a series of police raids in the Netherlands is also worrying. These exhibits are supposed to form part of the digital archives of the DHKP-C and to show the structure of the organisation in Europe. However, neither the confiscation nor the decryption of this data has been documented or proven in a forensically adequate manner.

The court and prosecution are unphased by the fact that the confiscated hard drives have long been destroyed. Despite the fact that an explanation from the Dutch authorities cannot be expected because it has refused to permit its officers to testify, this material continues to be introduced by the prosecution and used in the trial.

The court is similarly unphased at the nature of the evidence provided by the prosecution that is supposed to prove the involvement of the DHKP-C in attacks in Turkey. Most of this evidence is made up of letters allegedly claiming responsibility, with the prosecution's observation that the DHKP-C has not repudiated them. The authenticity of these letters, however, has never been verified. As a rule, they have simply been downloaded from various websites.

It has been said that nothing is safe and everything is possible on the Internet. In a recent legal scandal, at the trial of alleged members of a German “militant group”, evidence showed that the police had written and published its position papers. It is well documented that the police participate in debates and sometimes purport to represent militant organisations [5]. In the current proceedings, however, the Turkish state has admitted that its attributing of attacks to the DHKP-C were erroneous.

For example, in the so-called Ergenekon case brought by the Istanbul high criminal court, it is claimed that at least some of the attacks assigned to the DHKP-C were actually committed by the Ergenekon terrorist organisation. It remains to be seen whether they were carried out by Ergenekon or the Turkish state itself, as part of a strategy of tension. What these accusations imply for the Stammheim trial is that the verification of each single attack assigned to the DHKP-C is essential. If constitutional principles are to apply the court will not be able to avoid consideration of evidence from the Ergenekon trial in the Stammheim proceedings; the indictment for the Ergenekon trial comprises several thousand pages. The defence has already made an application to this effect.

Footnotes:

1. The prosecution bases its opinion on a decision by the Hamburg high regional court on the use of statements made by high-level Al Qaeda members who were imprisoned at unknown locations from 2005, in the trial against Motassadeq; compare OLG Hamburg, Neue Juristische Wochenschrift (NJW) 2005, issue 32, pp. 2326-2329.

2. European Court of Human Rights (ECHR): Judgment (Merits and Just Satisfaction) in the CASE OF RIBITSCH v. AUSTRIA, 18896/91,
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Ribitsch&sessionid=24652655&skin=hudoc-en

3. Ambos, K.: Die transnationale Verwertung von Folterbeweisen [The transnational interpretation of torture evidence], in: Strafverteidiger 2009, issue 3, pp 151-161 (159)

4. Focus 11/2004, 10.3.03

5. Compare 'BKA schrieb bei der Militanzdebatte mit' [The BKA contributes itself to the militancy debate], in: ak – analyse und kritik, issue 538, 17.4.09