A February, 2003, photo of Mounir el Motassadeq during his trial in Hamburg, Germany. (Markus Hansen/AFP-pool)
Karlsruhe, Germany —
A German court on Thursday overturned the world's only conviction for the Sept. 11 terror attacks on the United States and ordered a retrial for a Moroccan found guilty last year of aiding the Hamburg cell of suicide hijackers.
Mounir el Motassadeq's conviction on more than 3,000 counts of accessory to murder and membership in a terrorist organization was flawed because the lower court failed to properly consider the absence of evidence from a key witness who is in U.S. custody, the Federal Criminal Court ruled.
"The case is to be sent back to another panel of judges at the Hamburg court for a new trial and decision," presiding Judge Klaus Tolksdorf said in reading the verdict. But he added: "The defendant el Motassadeq is certainly far removed from being clear of suspicion."
Mr. el Motassadeq, 29, is serving a maximum 15-year prison sentence after the Hamburg court convicted him in February 2003 of giving logistical support to the Hamburg-based al-Qaeda cell that included Sept. 11 suicide hijackers Mohamed Atta, Marwan al-Shehhi and Ziad Jarrah.
Thursday's ruling is a new setback for German prosecutors after the same Hamburg court last month acquitted Mr. el Motassadeq's friend Abdelghani Mzoudi of identical charges for lack of evidence.
After the appeal ruling, Mr. el Motassadeq's lawyers said they would ask the Hamburg court to free the electrical engineering student from custody. (He did not attend the session in the southern city of Karlsruhe.)
Mr. el Motassadeq's lawyers argued he was denied a fair trial because the United States refused to allow testimony by Ramzi Binalshibh, thought to be the Hamburg cell's key contact with al-Qaeda. Mr. Binalshibh was captured in Pakistan on the anniversary of the Sept. 11, 2001 attacks and is in U.S. custody in a secret location.
The U.S. Justice Department has told the Hamburg court that Mr. Binalshibh is "not available." The German government also refused to turn over transcripts of his interrogations, saying they had been provided by the United States for intelligence purposes only.
Mr. el Motassadeq acknowledges knowing the hijackers but denies that he knew anything of their plans and maintains that Mr. Binalshibh could confirm his claim.
Mr. Mzoudi benefited from a statement presented by German investigators in which an unnamed source — believed by the court to be Mr. Binalshibh — said the only people in Hamburg who knew of the plot were hijackers Mr. Atta, Marwan al-Shehhi and Ziad Jarrah, as well as Mr. Binalshibh.
Though that evidence was not considered in Mr. el Motassadeq's appeal, defence lawyer Graessle-Muenscher said it would "definitely" play a role in the retrial.
Without ruling on Mr. el Motassadeq's guilt, the appeals court said the lower court erred because it failed to consider whether the lack of direct evidence from Mr. Binalshibh should have influenced its decision.
Andreas Schulz, a lawyer for relatives of Sept. 11 at both trials, said Thursday's ruling "will certainly be met with incomprehension" by them.
