"Partly, the problem also lies with the courts, which as Schudt says have developed a criminal law oriented toward German clubs and societies. As such, they find it difficult to counter "sporadically visible [terrorist] cells," which don't elect a treasurer, don't have a rigid sharing of duties and have no clear structure. "Finding solid evidence is often difficult," concurred Bayern's Interior Minister Günther Beckstein (CSU). Rheinland-Pfalz Justice Minister Herbert Mertin (FDP) also spoke up for the courts. "It has been suggested, that they could [act], if they wanted to."
SPIEGEL ONLINE - August 22, 2005, 03:34 PM URL: http://www.spiegel.de/international/0,1518,370883,00.html German Justice and the War on Terror How Much Evidence Is Necessary in Suspected Terrorism Cases? By Markus Verbeet and Dominik Cziesche With the conviction of Mounir el Motassadeq, Hamburg's judges wanted to prove that the German judiciary was capable of combating Islamist terror. Terrorism cases continue to pose a dilemna for German courts due to a lack of solid evidence against suspects. Mounir el Motassadeq was convicted of belonging to the same terrorist cell which conspired to commit the 9/11 attacks. DPA (http://www.spiegel.de/img/0,1020,507811,00.jpg) In the fight against terror, a dry throat is a relatively minor problem. Ernst-Rainer Schudt had already been speaking for one hour on Friday afternoon when a compassionate constable brought him a glass of mineral water. For a split second, the man in the black robe looked irritated, and then continued to talk for the next three and a half hours -- without even taking a swig. Schudt, the presiding judge, was explaining right down to the minutest detail why the Fourth Senate of the Hanseatic Higher Regional Court was sentencing the Moroccan, Mounir el Motassadeq, to seven years in prison: It was for belonging to the same terrorist group as the cell which committed the 9/11 attacks, but not for abetting the murder of the more than 3,000 people who died. Above all, Schudt spoke directly to those who increasingly question whether the German judiciary is sufficiently resolved to combat Islamic violence. The critiques have come after prosecutors showed difficulty presenting convincing evidence in several previous terror trials. "One can answer that question confidently with 'Yes'," Schudt replied. Schudt's decision certainly came after a painstaking hearing of the accumulated evidence. This time around, the senate heard testimony with impressive meticulousness from 100 witnesses, viewed incriminating video material, collected new evidence, and re-examined old testimony. Altogether, the court accumulated 3,500 pieces of evidence. So is this German thoroughness against the Islamic threat now the benchmark for future proceedings? Or will the German Supreme Court overturn the sentence in Motassadeq's planned appeal, just as happened in March 2004 against his previous 15-year sentence? Since then, the debate has centred on whether German justice is capable of taking rigorous measures against Islamists. Attorney General Kay Nehm -- until now rather luckless in terrorism prosecutions -- has complained that it is not the law that has been too lackadaisical but the judges themselves. "We don't need special laws to combat enemies of the state," said Nehm. Evidently, the chief prosecutor bitterly continued, one is only allowed to take action against suspected terrorists once it is already too late. Nehm has tackled the criticism head on. Because previous terror trials had failed to deliver the expected heavy punishments, he has come out as the fall guy in the public eye. And even this time, the prosecutor isn't totally happy, because he had demanded a 15-year prison term for Motassadeq. Instead, he got seven. For him, it's another black eye. But there have been worse defeats. Motassadeq's friend, Abdelghani Mzoudi, was actually acquitted in June. A Tunisian accused in Berlin of being a terror suspect was eventually only convicted of minor tax evasion charges and the Munich case against an Iraqi, who is suspected of financing terrorists, has been constructed in such a complicated manner that yet more embarrassing reversals for Nehm are not out of the question. A forthcoming case against men who allegedly planned an attack while former Iraqi Prime Minister Iyad Allawi was visiting Berlin last December will also be tricky. The men were certainly behaving conspiratorially and were likely scoping out a target. But no explosives were found -- which would of course have been powerful evidence. Partly, the problem also lies with the courts, which as Schudt says have developed a criminal law oriented toward German clubs and societies. As such, they find it difficult to counter "sporadically visible [terrorist] cells," which don't elect a treasurer, don't have a rigid sharing of duties and have no clear structure. "Finding solid evidence is often difficult," concurred Bayern's Interior Minister Günther Beckstein (CSU). Rheinland-Pfalz Justice Minister Herbert Mertin (FDP) also spoke up for the courts. "It has been suggested, that they could [act], if they wanted to." On Friday, the Hamburg judges suggested that the fault may also lie with the inadequate evidence presented by prosecutors, thus countering Nehm's own criticism. In the original proceedings against Motassadeq, government prosecutors said that plans for the 9/11 attacks were first hatched in 1999 at the latest -- and in Germany, not in Afghanistan. This would have made a conviction more straight-forward because accordingly, Motassadeq would have known earlier about his friends' plans. But according to the court, this prosecution argument "had completely failed to convince." This time, the judges didn't want to hear anything about constructs, suppositions and speculation. Instead, they wanted to see the evidence. They used it to form a picture of how events unfolded. Among other things, they completed a diagram of the living arrangements of the terror group to which, according to Schudt, the recently acquitted Mzoudi also belonged. Mzoudi has now been sent back to Morocco. In this manner, prosecutors carefully presented and judges examined the transactions. And the process convinced the court that Motassadeq was more than just a harmless friend from the local mosque. In fact, he belonged to the Hamburg terror cell. Even if, as assumed, he did not know the exact plans, the judges said that he still supported the goals of the attackers. For Nehm, it is unfortunate that so much detective work and the careful construction of a case only convinced the court that Motassadeq was a member of a terrorist group. He had also wanted him convicted as an accomplice to murder. The only way he can reconcile himself to the outcome is again to cite the "problematic situation of accumulating evidence." As such, he says, the outcome was "foreseeable." ------------------------ Yahoo! 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