Sometimes, people without a German passport end up behind bars in Germany. But depending on their status, their punishment doesn't end as they walk out of prison. In this episode, Fritz and Naya explore how free ex-convicts without a passport really are. And with the help of Thomas Oberhäuser, Chairman of the Executive Committee of the Working Group on Migration Law in the German Bar Association, we discuss what could happen to Anwar R. and Eyad A. if they were indeed finally convicted for what they are accused of: crimes against humanity.
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More on Thomas Oberhäuser
The Bar Association Thomas Oberhäuser chairs
Syria Justice and Accountability Centre's monitoring of the trial
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Music by Kevin McLeod and via Blue Dot Sessions
Support for our podcast comes from German Federal Foreign Office funds that are provided by the Institut für Auslandsbeziehungen IFA's zivik Funding Programme.
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Hannah: Last month in court, we heard two more insider witnesses. One had been requested by the defense, the other by the prosecution. I always find these insider witnesses really, really interesting because they worked inside the system so they really know how things were done, and how hierarchies worked.
At the same time, I'm always a bit surprised when they come without lawyers like these two did. It's a fine line as we see in Eyad A's case, who started out as a witness and then because of something he said, turned into a suspect and then a defendant in court. As most of the insider witnesses were somehow involved in the regime's doings, they might have been involved in crimes or they might have been hierarchically responsible for crimes. I think it's a pretty risky thing for them to testify. In this case, I guess, nothing happened to them but I'll just summarize their testimonies.
One of them was a pilot in the army and he comes from a really influential prominent family in Syria, a family of army officers. He said that he even knew Bashar al-Assad personally and he also knew Hafez Makhlouf personally. He defected six months before Anwar R did in 2012 and they had some common friends. He assisted Anwar R with his defection. He picked him up from the Jordanian border and he organized an apartment for him and his family so they didn't have to stay in the refugee camp.
When he picked him up from the border, they were in the car together and they talked about certain opinions and the situation in Syria. The witness remembered that Anwar R said that he wanted to defect earlier, that he didn't really agree with what the regime was doing. The witness also said that Anwar R cooperated with the Jordanian secret service, provided some documents that he had brought with him. He helped organize a safe route for Syrian civilians to come to Jordan. He also said that he met Anwar R a bit later again in Jordan and that Anwar R was really scared because he was already afraid that the Syrian secret service was after him and would try to kill him even in Jordan.
The second witness was a secretary. He worked in Branch 285 which is a branch similar to Branch 251, where also people were interrogated, tortured. They had their own prison as well. Anwar R had worked in that branch before he transferred to Branch 251 and he spent a few more months there before his defection. The defense has claimed that he was transferred back to Branch 285 as a punishment because he had helped so many prisoners. They would just put him in some unimportant job just to keep him out of the way.
This secretary who worked with Anwar R for quite a long time, he said that it didn't seem as a punishment because Anwar R still had his company car, he still had his own office. He still had an employee to bring him coffee and tea just like the other officers. That part of the story wasn't really confirmed.
On the other hand, this witness remembered Anwar R as being very kind and friendly. He always greeted also the low-ranking employees such as himself which apparently other officers did not do. As a person, he said Anwar R was a good man.
Later in October, nothing really new happened in court. It was mostly requests by the defense for more witnesses and then arguments by the prosecution against those requests and of course some decisions about those requests by the court. As soon as all that is sorted out we will hopefully know when the final pleas are going to take place, and finally when the verdict is actually going to happen.
I guess for many of us with that verdict, this whole trial, and this whole story is coming to an end. For the defendants, the verdict is just the beginning of a whole new chapter. Listen to my colleagues, Naya and Fritz talk about this in today's episode.
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Naya Skaf: As Syrians and the rest of the world watch closely for what could be the final weeks of the Koblenz trial, we thought of traveling with you in time and visiting together the future. In this podcast, we have considered the past and the present at length but what about the future? The future of Anwar R and Eyad A, and the type of life that awaits them after the trial and possible appeals are done, when the world is not watching anymore and a kind of normalcy starts.
What really is normal in this context? What would their life be like after 5 years, 10 years, 20 or more years, as much as it would take for them to get released, that is if both get a final conviction?
Fritz Streiff: Lots of people are waiting for the verdict in this case now but what then? What about their life afterward? Doesn't the story continue for the two defendants? We wanted to try to understand this ourselves, whether Anwar R and Eyad A's punishment if they're finally convicted, stops when their prison years are served. Does their punishment somehow continue to live on and shape the life that both will continue to lead?
By the way, just a quick pause here. When we say life after prison in these cases, it's worth mentioning that we are speaking of a theory here still. Eyad A was convicted already back in February 2021, but he decided to appeal his sentence, which means that it's not final yet and he remains innocent until finally proven guilty. Anwar R's case in Koblenz is ongoing as you know, so the same goes for him as well.
Naya: To understand the future situation that Anwar R and Eyad A might find themselves in, we will explore various questions in today's episode about one major topic, life after prison in Germany for non-German citizens. Our Arabic series producer, Saleem Salameh, discussed these questions with Thomas Oberhäuser, who is chairman of the executive committee of the working group on migration law in the German Bar Association, DAV. Thomas told us what could happen to the Branch 251 ex-officers Anwar R and Eyad A if they were indeed finally convicted for what they are accused of, crimes against humanity
Fritz: When someone who doesn't have a German passport has to go to prison in Germany, a question then usually arises which is, what will happen to the right of stay once they are released from prison? They've done something that goes against the law and that has landed them behind bars. This is usually considered reason enough to expel them. The authorities then make an assessment on a case-by-case basis to decide, should and can this person in fact be expelled or not?
Naya: Usually when it's a serious crime like the allegations in Eyad A's and Anwar R's cases, then the decision would likely be to expel them. Upon release, they would receive an expulsion order that says, "Leave the country" but the whole thing is not as simple as it may sound.
Fritz: Absolutely not because part of that assessment is the core question, what would happen to this person after being expelled to his home country? For example, in Eyad A and Anwar R's cases, they would likely face the risk of torture or even worse because of their defection and because of the testimonies that they gave before and during the trial.
According to international law and also the relevant provisions in German residents law, expelling is prohibited if there is a threat of the death penalty or considerable and concrete danger to life, health, or freedom of that person. For example, the threat of torture in the home country if the individual was to be sent back there. In situations like this, there will usually be a ban to expel this person.
Naya: To quickly recap here, in Germany when someone has asylum status then that generally means they cannot be expelled to their home country. If an individual truthfully told their story of being in danger where they came from, and as a result received asylum status, that person should normally not be able to get expelled. However, there are various scenarios in which that status could change or be taken away again.
Fritz: Exactly, and that's what we learned from Thomas Oberhäuser. Let's take a look at these different scenarios. Bear with me here. For example, one scenario in which a previously received asylum status could change is when the person did not tell the truth in the asylum procedure with the application. For example, if Assyrian asylum seeker changed or played down his role or involvement in crimes, and the authorities then found real facts showing that they obtained the asylum status by lying about being in danger or leaving out incriminating facts, then it is likely that the status would be taken away.
This is a procedure, by the way, that happens a lot in the United States, actually, where the authorities use this as a tool to expel war criminals on their soil, who they cannot prosecute. They don't have laws like the universal jurisdiction provisions in Germany, that are being used to prosecute Anwar R and Eyad A.
Now, another scenario would be that the asylum applicant was indeed fully honest during the application procedure, which got them the asylum status at first but in all that honesty, the person admits or admitted to certain crimes. The authorities might decide to actually transfer their dossier from the migration and refugee authorities where the application procedure is happening to the justice authorities, as was the case with Eyad A. A criminal prosecution might follow and the German authorities can, but don't have to, withdraw the asylum status.
Again, this is a decision-making procedure that happens on a case-by-case basis, but, and here it gets even more foggy. Even if the authorities withdraw the asylum status from this individual, that doesn't necessarily mean that they will in fact be expelled immediately or even ever. Remember, there might be a ban on expulsion because of the situation that that individual might face in his home country
Naya: In practice, the state then says, "You have to leave this country but we cannot expel you ourselves because you might either be in danger if you go back to your home country, or you might still have valid asylum status. Still, you were convicted for a serious crime." What happens then, where do they go?
Fritz: This bizarre situation leaves a person like that with basically two options. Either they leave the country voluntarily and will then never be allowed to come back, or the second option is to remain somewhat, as the authorities would put it, "illegally" in the country, but with the knowledge that if circumstances in their home country improved, the authorities would then go ahead and expel them eventually.
Naya: Fritz, that's the dilemma. The state would want to expel foreigners that have spent time in prison for having committed a serious crime, but the authorities can't do it in practice for the time being. In case there is a change in the circumstances in their own home country, then they will expel them. They are in a waiting position in a legal limbo. In that, they are considered as so-called illegally staying in Germany, a confusing situation to find yourself in. Perhaps not entirely just if you consider that they have already served the punishment that the court handed to them.
Fritz: Now, with all this knowledge, let's zoom into a case like the one of Anwar R and Eyad A, and assume they eventually get convicted and serve time in prison. We know that Anwar R had received asylum status before he was arrested and put on trial. We're not 100% sure what Eyad A's asylum status is at the moment. He had started it before his arrest and in those interviews, he volunteered the information that actually led to his arrest. We don't know where that procedure went and for the time being, it may just be on pause.
Now, looking into the future when they eventually get released, the state will likely want to expel them because of the serious crimes they committed. That's what we just learned. At the same time, the authorities might decide in their individual cases, that it's in fact not safe to expel them.
Naya: They won't be able to expel them for the time being and they would find themselves in the confusing situation we described before. Plus, in Eyad A's case, there is the asylum procedure. A possible conviction will definitely not work in his favor to get asylum status.
Fritz: Right. The thing is that if they choose to go with the first option we outlined earlier and decide to leave Germany, then their only option would be to go to a third country, for example, another Arab country or any other non-European Union country, because leaving Germany alone is not enough. We learned from German lawyer, Thomas Oberhäuser, that the expulsion order that they would get would say something like "You're not allowed to stay not just in Germany, but in the European Union." In case they have some special links to another European country, for example, they have family living there, this country would then have to ask Germany if it agrees that this person would get permission to stay in this other country. Usually, in practice, they would refuse that.
If they decide to go with a second option we described, which is to stay in Germany, they end up in that confusing limbo and waiting position, the so-called illegally staying in Germany position. This begs the question, during that time when they stay in Germany, how can they lead anything even resembling a normal life? Can they at all?
Naya: Well, according to Thomas Oberhäuser, they will not be able to get a residence permit in Germany, let alone start the process of naturalization to get the German passport. They also won't be allowed to work, not in Germany or elsewhere in the EU. They are not allowed as well to travel across borders. They can do things to try to find their way around, like learning German if they want to. That is of course anyone's right. They can try to adapt, but they have no legal right to stay.
In other words, it won't really benefit them as they would be investing in something that they know will end sooner or later.
Fritz: This life sounds very challenging, Naya, but it does not stop here yet. It turns out, despite the fact that they can't work or settle or even be free to move around, they would still need to renew their permission to stay, although it's considered staying "illegally."
Naya: How does that make sense?
Fritz: It is yet another one of those confusing and partly contradictory components of this entire complexity. Plus, for every such renewal to stay illegally, they even have to pay, despite the fact that as you said before, they're not even allowed to work. The money for paying for these renewal procedures becomes yet another challenge for them. The challenges are really piling up here in a systemic way.
When we asked Thomas about this, he said that this is the German authority's way of saying, "Get out of Germany. We don't like you."
Naya: What about family members like a wife, children, brothers, and sisters? Are they also affected by this situation that convicted criminals would face, for example, in Eyad A and Anwar R's case, if they get convicted? If family is not directly affected, can they and their status perhaps help them after they get released?
Fritz: Well, usually there is a concept that's called family reunification. That is when there are direct family members that already reside in Germany, that's usually a reason to stay or to be invited to Germany if you live in another country and you apply for asylum. It's worth noting here, by the way, that in German law, what's considered a direct family is only husbands, wives, and children under the age of 16. In this situation which we're discussing in this episode, core family members related to Anwar R and Eyad A who live in Germany will not be able to help them or keep them from being expelled.
In similar cases, we learned from Thomas that family members can and might decide to leave the country along with the person that is affected by the order to get expelled, just practically to be able to stay together, but they don't have to leave. They're not directly affected by the decision. They can't stay if they want to. The question is, do they really have a choice if they want to be together if they want to stay together?
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Fritz: We have said it before and it has just been piling up these complexities and challenges. Either it is you leave Germany and the European Union, or you stay in that confusing waiting position. You cannot become a resident, you can't work, you can't move across borders freely, and all the while you have to even pay to stay in that entire insecure limbo situation. Your family members can't really help you to stay either. Plus, let's not forget, this is after they have served their punishment in prison.
These future problems and challenges that Eyad A and Anwar R might face, do not count towards possible mitigating circumstances that the judges in Koblenz could consider when sentencing them. All in all, Naya, this might sound a bit dramatic, but it seems to me that this would be the end. From all aspects, it doesn't seem there are many opportunities for them here. It's a dead-end street.
Naya: Yes, I agree.
Fritz: What if Anwar R in the final pleas would plead guilty of the crimes that he's accused of, and then in an odd turn of events when the decision comes actually wins this case? It seems very unlikely but still, just to think this through for a second here and looking at the topic of today's episode, what would happen then?
Naya: That probably won't happen though you never know. If we want to explore the answer, then as Thomas told us, if he's found not guilty, then he has every right that a refugee would be entitled to. To start with, the simple fact that he would keep his asylum status, he could start a procedure towards becoming German. He can and might ask for a compensation for the time that he's been in detention during the trial. In other words, if the court ends up deciding that he is innocent in the sense of the indictment, then his life continues to be the same as before the trial started.
Speaking of that, what comes to mind right now is how he asks for protection from people that he claimed were threatening him. Remember early on in the trial, Anwar R's lawyer told the court about his fear of Syrian intelligence officers in Berlin, that there were members of the Mukhabarat observing and following him. He was quite sure of it because he knows how they operate and move from his decade-long on experience. He was sure they were plotting to kidnap and kill him.
I was thinking if he was not found guilty, would he want to ask for protection again? Would he be able to get it?
Thomas told us that this might be almost impossible, as asking for protection requires a lot of investigation and it has to be a really dangerous situation for people who require protection.
Fritz: All this is quite thought-provoking. Another thought worth pausing on is, in light of everything that we've talked about in today's episode, should criminals actually keep on paying a price for what they've done and have already served time for in prison? Does their punishment really end after prison? If it doesn't, is that really fair?
Naya: We have talked to Thomas about this and he had an opinion about this very thought.
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Thomas Oberhäuser: That is a really big ethical problem and I think it's a legal problem, too, but nobody really takes it serious. That someone who has done something wrong and has to go to prison, the criminal court decides how long he has to go to prison until he's doing his penance. Afterwards, just a foreigner will get a second sentence, a second decision about his doing that says, "You will be expelled then, too." That is in the opinion of most people, a second conviction, a second sentence.
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Thomas: This is not really in accordance to our constitution and everything you have in mind because you will be handled differently just because you're a foreigner. You have done the same thing like a German, but you will be handled very differently. The German go to jail, you go to jail, but you have to face another decision afterwards.
This is something, what is not really fair and we fight against this not in the case of Anwar and Eyad A. That is clear they can face more than one sentence in my opinion, when they have done these things.
For many other people, it's worth to fight against this nonsense that they make different decisions just because someone is a foreigner. There is something that is really a decision for a lifetime for a lot of people and it's a worse thing than the criminal sentence because it means a lifetime you can't come back. This is really a cruel thing.
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Fritz: Branch 251 is a 75 Podcasts production. Today's episode was hosted by Naya Skaf and myself Fritz Streiff. It was written and produced by Saleem Salameh, co-produced and edited by myself, Fritz Streiff, with editorial help from Naya Skaf, Pauline Peek, and Hannah El-Hitami. Sound and mixing from Pauline Peek.
We want to especially thank Thomas Oberhäuser for giving us his time and explaining the vast complexities of German residents and asylum law. Support for our podcast comes from German Federal Foreign Office Funds that are provided to us by IFA's zivik Funding Program.
