Families and lawyers of pro-Palestine defendants demand judge recusal over German ‘sham’ trial

The families and lawyers of five pro-Palestine activist defendants facing trial in a German court have denounced the proceedings as a “sham trial” and called for the recusal of the presiding judge.

The activists, who are from Germany, Spain, Ireland and the UK, were arrested on 8 September following the alleged break-in to the premises of Elbit Systems in the southwestern German city of Ulm.

The group - Daniel Tatlow-Devally, Zo Hailu, Crow Tricks, Vi Kovarbasic and Leandra Rollo - are accused of damaging the building's glass facade and smashing office equipment, including computers, screens and telephones.

In addition to charges of trespassing and damage to property, the five are accused of "membership of a criminal organisation", namely Palestine Action Germany, under Section 129 of the German penal code.

The legislation is typically used to target organised crime networks and carries a potential sentence of up to five years in prison.

During a hearing on Monday, the presiding judge Kathrin Lauchstadt repeatedly barred the defence team from filing submissions objecting to seating arrangements which prevented them from speaking confidentially with their defendants.

The trial was initially scheduled to start on 7 May, but was postponed after the judge halted proceedings when defence lawyers protested what they described as a “violation of the presumption of innocence”, a right enshrined in the EU Charter of Fundamental Rights, and subsequently called for her recusal.

The defendants’ families and lawyers said that they were “paraded in handcuffs” before the press as they entered the courtroom. They were then placed behind a two-metre bullet-proof glass barrier flanked by guards and segregated from their lawyers, making confidential communication with them impossible. 

“They made the conscious decision to ensure there are photographs of them in handcuffs as if they’re guilty,” Mimi Tatlow-Golden, Tatlow-Devally’s mother, told Middle East Eye, emphasising that the defendants were not a flight risk and are not alleged to have to have harmed anyone.

“And yet the court chose to present them in that way,” she said.

Lawyers and families highlighted that these measures violate the principle of the presumption of innocence.

EU directive 2016/343 stipulates that authorities should abstain from presenting suspects in court or in public with physical restraints “such as handcuffs, glass boxes, cages and leg irons, unless the use of such measures is required for case-specific reasons”, including security or flight-risk concerns.

'Rights are being infringed'

During the initial hearing, the defence team sat behind the glass barrier alongside their clients and refused to move, prompting the judge to halt proceedings and postpone them to the following week.

The lawyers said that the layout of the court room meant that they could only speak to their clients via microphones, which observers said were audible in the gallery. They also did not have control over their own microphones.

“In a normal trial, in a normal court room, I don't have to ask to speak,” defence lawyer Nina Oner, who represents defendant Zo Hailu, told MEE.

“We usually speak until the court tells us that they're not letting us speak any longer, whereas here the status quo is that I need to ask to be heard and the court needs to turn on my microphone.”

During the first hearing on 7 May, the court failed to turn on the defence lawyers' microphones, effectively barring them from speaking.

“The judge stated in the very first hearing, anything that is not said into the microphone, so anything that she doesn't allow us to say, will not be translated by the interpreters, meaning our clients won't hear it, and also, the public doesn't really hear it well, which is exactly what happened on the first day,” Oner said.

However, while the defence were permitted to speak during the second hearing, the judge repeatedly barred them from filing submissions to the court objecting to the trial conditions.

They said that the judge permitted them to outline the substance of their submissions, only to issue a directive barring them from filing them and indicating that they could submit them after the indictment is read.

“That's just something that is not acceptable for us, because the rights that are being infringed upon here right now will have been irreversibly lost if the indictment is being read with our defendants seated where they are right now,” Oner said.

This tussle continued throughout the hearing, which meant that the trial did not progress beyond establishing the defendants’ personal information.

"I think it's important to point out that the reason we had to continue in this manner, was not to give the judge the idea that we are legitimising this sham trial," Oner said.

'The judge lost her composure'

Meanwhile, a malfunctioning intercom system resulted in a conversation between one of the defendants and their solicitor being audible in the public gallery. At one point, defendants had to shout through the bullet-proof glass to make themselves heard by the translators.

Oner said that the courtroom is designed to try terrorist cases, adding that the judge has failed to provide a reason for the choice of Stammheim court - a higher regional court that only tries cases relating to terrorist organisations - as a venue. 

A freedom of information request submitted by the defence team revealed that the Regional Court of Stuttgart did not ask if any other courtrooms in their usual court house were available.

Oner said the restrictions are unprecedented in her career, adding that in other section 129a cases, in which people were indicted for more violent crimes, they were permitted to sit next to their legal counsel.

She added that she had “lost hope” that her team would manage to file a submission to amend the court layout before the indictment is read, when it will be too late to make changes.

The restrictions were such that defence solicitor Benjamin Dusberg told the court that it was violating the most fundamental human rights of their clients, which was met by applause from the public gallery. The judge responded by ordering the observers out of the court for 10 minutes.

“The judge very visibly lost her composure and shouted at everybody to clear the court,” Josie, Kovarbasic’s partner, who was in court, told MEE.

She said that security guards “put on their riot gloves”, and marched into the gallery adopting “a very ominous, threatening stance”, adding that they dragged a number of people from the court room.

MEE requested comment from Stammheim Court but did not receive a response by the time of publication.

Psychological torture

MEE previously reported that the five defendants are facing restrictive conditions in prolonged pre-trial detention.

Under Section 129, suspects can be held for up to six months before trial, though lawyers say this period has now been significantly extended.

By the time the trials are expected to conclude, the five will have spent around 11 months in custody. The defendants are being held in separate prisons and are not permitted to communicate with one another.

Families told MEE that their conversations with their loved ones are closely monitored and that they are barred from discussing the trial.

Josie said Kovarbasic, who is held at Schwabisch Gmund Prison, is only allowed one hour of visitation per month. Unlike the other defendants, they are barred from making any phone calls and are only permitted to receive mail in German.

She said a prison employee had told Kovarbasic that they had 20 pieces of mail for them, but only handed them two as they said the remaining were written in different languages.

According to Josie, Kovarbasic has lost around 10 kgs of their body weight since September due to the poor nutritional value of the food, which mainly consists of bread and mashed potatoes.

Nicola Robertson, Hailu’s mother, said she is concerned about the use of handcuffs during their transfer to court, which has left them with bruised wrists.

“These trial dates keep continuing, and with each one there’s going to be a new trauma injury,” she said.

Robertson said that after her arrest, Hailu was stripped naked and left wearing nothing but a nappy for six hours. She said she could not speak to them for 28 days, despite multiple attempts calling the prison.