FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28599/07 
by Mounir EL MOTASSADEQ 
against Germany

The European Court of Human Rights (Fifth Section), sitting on 4 May 2010 as a Chamber composed of:

Peer Lorenzen, President, 
 Renate Jaeger, 
 Karel Jungwiert, 
 Rait Maruste, 
 Isabelle Berro-Lefèvre, 
 Mirjana Lazarova Trajkovska, 
 Zdravka Kalaydjieva, judges, 
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 25 June 2007,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mounir El Motassadeq, is a Moroccan national who was born in 1974 and lives in Hamburg. He was represented before the Court by Mr U. Jacob, a lawyer practising in Hamburg.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The terrorist attacks of 11 September 2001

On 11 September 2001 members of the international terrorist network al-Qaeda carried out terrorist attacks in the United States of America, using four hijacked commercial aircraft: two were flown into the Twin Towers of the World Trade Centre in New York City and one into the Pentagon in Washington; the last aircraft was intentionally crashed by the hijackers in Stony Creek Township, Pennsylvania, after passengers had tried to overwhelm the hijackers. At least 3,116 lives were lost, among them the 246 passengers of the planes.

Some of the key players of the “9/11” conspiracy, in particular three of the four terrorists piloting the hijacked jets, had spent years living and studying in Germany, specifically in Hamburg. They formed, together with other extremists, among them allegedly R.B., A.M. and the applicant, the group known as the “Hamburg Group”.

2.  The first trial

On 23 August 2002 the Office of the Federal Prosecutor indicted the applicant, charging him with membership of a terrorist organisation and being an accessory to murder in 3,116 cases. The indictment alleged that the 9/11 terrorist attacks were in part planned, organised and carried out by the “Hamburg Group” of which the applicant was a member.

The first-instance court, the Hamburg Court of Appeal, tried to obtain witness testimony of, inter alia, R.B., who at that time was said to be detained in US custody. However, for reasons of state security, the American authorities repeatedly refused to grant the German courts access to any witnesses. Moreover, summaries of interviews, made available to the German authorities by the USA, had been subject to formal declarations blocking their admission of evidence (Sperrerklärung). On 19 February 2003 the Hamburg Court of Appeal found the applicant guilty of accessory to murder in 3,066 cases, accessory to attempted murder and dangerous bodily injury in five cases and membership of a terrorist organisation. He was sentenced to fifteen years' imprisonment.

The applicant's appeal on points of law led to the judgment being quashed by the Federal Court of Justice on 4 March 2004. It held that the conviction was flawed because the Hamburg Court of Appeal had failed to properly consider the effect of the missing key witnesses in US custody. The case was remitted to a different senate of the Hamburg Court of Appeal.

3.  The second trial

During the second trial, which began in August 2004, the court heard extensive evidence: more than 100 witnesses, a specialist on Islam and linguists were examined. Moreover, hundreds of documents were read and photos and videos inspected. The written judgment comprises 368 pages. It contains on 215 pages a careful assessment and weighing of the evidence.

The taking of evidence revealed, inter alia, that in 1999 the core of the “Hamburg Group” became more religiously fanatical and radical in their anti-American and anti-Zionist views. This was in the court's view evidenced, for instance, by extremist speeches and songs at the wedding ceremony of one of the members of the group in October 1999, as well as the participation of several of the members, including the applicant, in al-Qaeda training camps in Afghanistan in 1999/2000. The group members staying in Hamburg, including the applicant before he too travelled to Afghanistan, handled the affairs of the absent members, to keep their trips secret. For example, the applicant terminated one of the members' apartment lease as well as his mobile phone contract, and used a power of attorney to pay bills, namely rent and tuition fees. The latter was important to ensure a continued legal residence in Germany. With the power of attorney the applicant had access to the bank account of one of the core members and thereby to the only noteworthy source of capital of the group. The evidence showed that the applicant had at one point, while the designated pilots were already in the USA, withdrawn 5,000 German marks from that account and wired the money to R.B. Finally, the applicant contacted the girlfriend of one of the core members while the latter was in Afghanistan in order to dispel any doubts regarding her boyfriend's whereabouts and hinder further enquiries on her part.

For the second trial the court had managed to obtain summaries of the interviews at which three witnesses held in US custody were questioned, among them R.B. and O.S. The examination of these witnesses in person or through hearsay witnesses was still being refused by the US authorities. The summaries were admitted as evidence and read out at the trial. According to R.B.'s statement A.M. and the applicant had not been members of the “Hamburg Group”, nor had the latter received specific instructions from al-Qaeda while he was in Afghanistan. He had, according to R.B.'s testimony, not been involved in activities regarding the 9/11 operation. R.B. further stated that the applicant had maintained close relations with M.A.S., one of the key players of the 9/11 operation, who had also given him power of attorney; while the operation was being planned the applicant had transferred money to the bank account of M.A.S.  
According to R.B. the applicant had, however, not been informed of the whereabouts of M.A.S. while the latter was in the USA. Finally, R.B. named several individuals, among them the applicant, who allegedly had neither known about the 9/11 operation nor been involved in it.  
In parts R.B.'s statement was inconsistent with the findings of “The 9/11 Commission Report” drawn up by the National Commission on Terrorist Attacks Upon the United States. This contradiction, namely that according to some sources R.B. exonerated several of his alleged co-conspirators while according to other sources he incriminated alleged co-conspirators, could not even be solved by the testimony of a staff member of this commission.

According to O.S' statement R.B. had mentioned the wish to go to Chechnya to fight against the Russians and he, O.S., had then advised members of the “Hamburg Group” to travel to Chechnya via Afghanistan, instead of via Georgia or Turkey. This alleged initial plan of going to Chechnya corresponds to the findings of “The 9/11 Commission Report”.

A.M., another alleged member of the “Hamburg Group”, invoked his right not to incriminate himself and refused to give evidence when called as a witness during the trial against the applicant, and was dismissed by the presiding judge. A.M. had also been indicted for membership in a terrorist organisation and for accessory to murder. He had, however, been acquitted by the Hamburg Court of Appeal in its judgment of 5 February 2004, which was upheld by the Federal Court of Justice on 9 June 2005.

4.  The judgment

On 19 August 2005 the Hamburg Court of Appeal convicted the applicant of membership of a terrorist organisation, acquitted him of the remainder of the charges and sentenced him to seven years' imprisonment. It found that there was sufficient circumstantial evidence as to the applicant's involvement in the “Hamburg Group” and that group's terrorist intentions.

Regarding the summaries of the interviews in which, inter alia, R.B. and O.S. were questioned, the Hamburg Court of Appeal found that they could be used as evidence when carefully assessed, bearing in mind the problem of absent witnesses. However, the statements did not alter the court's previous findings that the applicant was part of the “Hamburg Group” and provided logistical support while other members were in Afghanistan and, later on, in the USA. Ultimately, the court drew neither incriminating nor exonerating conclusions from the summaries of these interviews.  
Regarding R.B.'s testimony as to the applicant's non-involvement in the 9/11 operation the Hamburg Court of Appeal found his statements implausible and contradictory to other evidence. In particular, the court held that he had provided false information for the benefit of his accessories, because the list of individuals he had mentioned included individuals with regard to whom their involvement in the terrorist attacks of 9/11 had already been determined, contrary to his assertion. The Hamburg Court of Appeal also pointed to a number of other facts supporting its view that R.B. lacked credibility. Finally, R.B.'s very general statement that the applicant was not involved in the “Hamburg Group” was in the court's view not able to rebut the detailed albeit circumstantial evidence already gathered. As to the statement by O.S. regarding the alleged initial plans to go to Chechnya and not to Afghanistan, the court did not find these statements credible. It argued that in particular the speed with which all four core members of the “Hamburg Group” became core members of the 9/11 plot did not match the statement regarding earlier Chechnya plans.

Regarding the charges of being an accessory to murder, the Hamburg Court of Appeal, while convinced that the applicant knew in general about the impending terrorist attacks using commercial aircraft, and supported them, found no evidence indicating that he was aware of all the dimensions of the 9/11 attacks or that his logistical support, provided long before the attacks, increased the risk that the attacks would actually be carried out.

5.  The appeal on points of law

Both the applicant and the Federal Prosecutor lodged an appeal on points of law. The applicant claimed that the Hamburg Court of Appeal's decision to allow A.M. to refuse to testify failed to comply with the legal requirements, that the court should have heard other witnesses and that it had not weighed the evidence correctly.

On 16 November 2006 the Federal Court of Justice, relying on Article 354 of the Code of Criminal Procedure, changed the verdict to accessory to 246 counts of murder and membership of a terrorist organisation. In respect of the sentence the judgment was quashed and the case remitted to the Hamburg Court of Appeal for renewed sentencing.

The Federal Court of Justice held the applicant's first complaint to be inadmissible, as he had failed to object to the Hamburg Court of Appeal's decision to allow A.M. to refuse to testify. His complaint that the court should have heard more witnesses was also held to be inadmissible, since he had not requested that further evidence be taken. As to his last complaint, the Federal Court of Justice found that the court of first instance's weighing of evidence observed the legal framework, in particular regarding the careful weighing of evidence in cases of absent witnesses.

As to the applicant's acquittal of some of the charges, the Federal Court of Justice found that the facts established by the first-instance court in fact supported a conviction for accessory to murder as far as the passengers of the aircraft were concerned. It held that to be an accessory it is not necessary for the accessory's acts to increase the risk that the principal offence would actually be committed. Rather, it is sufficient that the acts were in support of the principal offence. Also, it was in the instant case not necessary that the applicant knew in detail that the planes were to be flown into the actual 9/11 targets. His knowledge that planes were to be crashed was sufficient to show that his intention was the death of the passengers.

Subsequently, on 8 January 2007, the Hamburg Court of Appeal sentenced the applicant to fifteen years' imprisonment. On 2 May 2007 the applicant's appeal on points of law was dismissed as ill-founded.

6.  The constitutional complaints

On 16 December 2006 the applicant made his first constitutional complaint. He complained in particular about the lower courts' assessment of evidence and the reformatio in peius by the Federal Court of Justice without, allegedly, a sufficient basis in the facts established by the trial court. On 10 January 2007 the Federal Constitutional Court refused to admit the constitutional complaint for examination. It found the complaint to be inadmissible in part for lack of substantiation, and ill-founded with respect to the complaint regarding the alteration of the conviction by the Federal Court of Justice. It held that this alteration did have a basis in the facts established by the Hamburg Court of Appeal.

After the last decision of the Federal Court of Justice the applicant made another constitutional complaint, claiming that his conviction had amounted to a perversion of the course of justice and that the proceedings should have been suspended to allow him to apply for a reopening of the trial. On 17 July 2007 the Federal Constitutional Court refused to admit the complaint for examination, finding it to be at least ill-founded. In this respect it relied on the principle of legal certainty and pointed out that the applicant was in any event not barred from applying for a reopening of the proceedings.

7.  Further proceedings

On 10 December 2007 the applicant requested the Hamburg Court of Appeal to appoint counsel for the preparation of a request for the reopening of the proceedings. On 21 February 2008 this request was rejected.

B.  Relevant domestic law and practice

Article 337 of the Criminal Code of Procedure

(1) An appeal on points of law may only be lodged on the ground that the judgment was based upon a violation of the law.

(2) The law is violated if a legal norm was not applied, or was erroneously applied.

Article 354 of the Criminal Code of Procedure

(1) Where the judgment is quashed solely because of a violation of the law occurring on its application to the findings on which the judgment was based, the court hearing the appeal on points of law shall itself give a decision on the merits if, without further discussion of the facts, the judgment is to take the form of an acquittal or termination of proceedings or imposition of a mandatory penalty, or if, in accordance with the public prosecution office's application, the court hearing the appeal on points of law deems the statutory minimum penalty or dispensing with punishment to be reasonable.

...

(2) Otherwise the case shall be referred back to the division or chamber of the court whose judgment is being quashed or to another court of the same rank located in the same Land. In proceedings where the decision at first instance was given by a Court of Appeal, the case shall be referred back to a different senate of the same court.

In order to simplify the proceedings in certain circumstances and according to generally accepted practice, which has been approved by the Federal Constitutional Court (see e.g. decision of 1 March 2000, file no. 2 BvR 2049/99), Art. 354 (1) can be applied mutatis mutandis by the court hearing the appeal. Accordingly, this court can also render a decision on the merits when the facts established by the lower court are exhaustive, when it can be ruled out that the facts could be supplemented at a new trial and when they entirely support the new decision. In any event, the court hearing the appeal may not independently establish facts.

COMPLAINTS

1. The applicant complained under Article 6 § 1 that the domestic courts ignored exonerating evidence, did not hear all crucial witnesses and arbitrarily assessed the evidence before them.

2. Under the same provision the applicant alleged that the Federal Court of Justice, contrary to the relevant provisions in criminal procedural law, based its verdict on factual conclusions that differed from the first-instance court's findings and did thus not act as a “tribunal established by law”.

THE LAW

Relying on Article 6 § 1 of the Convention the applicant complains about several aspects of the criminal proceedings against him. Article 6 § 1, in so far as relevant, provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”

1.  Alleged arbitrary assessment of evidence

The Court reiterates that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed. These are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I) which enjoy a wide margin of appreciation. The Court's role under Article 6 § 1 is not to assess the facts which led the domestic courts to adopt one decision rather than another (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 59, Series A no. 316-B) and Article 6 § 1 does not guarantee a particular outcome in any case or that the “right result” will be reached by the domestic courts (see Klasen v. Germany, no. 75204/01, § 43, 5 October 2006).

With regard to the instant case the Court observes first of all that in so far as the applicant complains about the Hamburg Court of Appeal's decision to allow A.M. to refuse to give evidence as well as its alleged failure to hear other crucial witnesses, he did not raise these issues before the first-instance court. In particular, he neither objected to A.M.'s release as a witness by the presiding judge nor did he request that other witnesses be heard. Accordingly, the Federal Court of Justice found his appeal on points of law concerning these complaints inadmissible. The Court must therefore reject these complaints for non-exhaustion of domestic remedies.

Regarding the weighing of evidence by the Hamburg Court of Appeal, in particular its assessment of the summaries of the interviews at which R.B. and O.S. were questioned, subsequently confirmed by the Federal Court of Justice, the Court holds that the reasons on which the courts based their decisions are sufficient to exclude the assumption that their evaluation of the case had been arbitrary. The Court in fact finds that the domestic courts examined all evidence before them in an extremely careful and thorough manner and gave detailed reasons for all their conclusions. The fact that the senate of the Federal Court of Justice which convicted the applicant had previously confirmed the acquittal of A.M., does not lead to a different conclusion. In this context the Court observes that the scope of scrutiny of the Federal Court of Justice as a court of appeal under Article 337 of the Code of Criminal Procedure is limited. It may not itself assess the evidence found by the court of first instance.

Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

2.  Alleged lack of a tribunal established by law

Concerning the applicant's complaint that the Federal Court of Justice did not act as a “tribunal established by law” when it altered his conviction to include accessory to murder, the Court reiterates that it is the purpose of the requirement in Article 6 § 1 that courts shall be “established by law” that the judicial organisation in a democratic society must not depend on the discretion of the Executive, but that it should be regulated by law emanating from Parliament. However, Article 6 § 1 does not require the legislature to regulate every detail in this area by a formal Act of Parliament if the legislature establishes at least the organisational framework for the judicial organisation (see Sojus Trade Company GmbH and  Deutsche Consulting GmbH v. Germany (dec.), no. 32411/96, 20April 1999, and Piersack v. Belgium, 1 October 1982, § 33, Series A no. 53).

The Court notes first of all that the applicant did not complain about the application of Article 354 (1) of the Criminal Code of Procedure mutatis mutandis. The instant case must therefore be distinguished from Sokurenko and Strygun v. Ukraine (nos. 29458/04 and 29465/04, §§ 24-26, 20 July 2006). As to the complaint that the Federal Court of Justice based its verdict on factual conclusions that differed from the first-instance court's findings the facts do not disclose any indication that the Federal Court of Justice's decision was based on facts not previously established by the Hamburg Court of Appeal. The Court further notes that this point was raised by the applicant in his complaint to the Federal Constitutional Court, which also found that the Federal Court of Justice had not independently established facts. Thus the Court considers that in altering the applicant's conviction the Federal Court of Justice was acting within its competence and thus as a “tribunal established by law” within the meaning of Article 6 § 1 when examining the applicant's appeal.

Accordingly, there is no appearance of a violation of Article 6 on this account and this aspect of the application is also inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

EL MOTASSADEQ v. GERMANY DECISION


EL MOTASSADEQ v. GERMANY DECISION