28 December 2010

Report from Day 6

Day 6 - 22 December 2010

Today there is a lot of media interest because the captain of the MVTaipan will give evidence. But first, there is a dispute about a video that was taken by the Dutch marines who captured the pirates.

Despite the fact that the court has known about this video, none of the defendants and only some of the lawyers have seen it, so the the defence lawyers object to the captain giving evidence at this stage. The judge takes a short break and then decides that the captain will start giving evidence, then the court will watch the four hour video (public excluded) and then the examination will continue.

But now the captain, Dierk Eggers. He looks friendly, an old guy with long blond hair, a weather stained face and a woollen hat.

The container ship had been travelling for two days from Djibouti to Mombasa, on a course far away from the Somali coast. They knew about the danger and had deliberately chosen a route some 600 miles off the coast. They saw a small ship about 8 miles away and changed course, the other ship also changed course away from the Taipan and reduced the speed, which made them think that is was a shipping vessel setting nets. In fact the ship had been releasing the speedboats, which showed up on the radar soon after, approaching fast. Eggers set off the alarm, sent the crew to the engine room and sent off an emergency  message and phoned the ship's owner. They speed boats approached fast and shots were fired. Then he went to the fortified engine room himself. The crew heard the pirates enter the ship and look for the crew.
Two hours later, they heard a helicopter arrive, more shots were fired. After a while they heard English voices telling them they were safe, but they weren't sure if it wasn't the pirates trying to trick them. Only after they heard people speak Dutch did they open the door.
Eggers statement ends and the judge tells him that there won't be any questions today. His examination will continue on 3rd January. Eggers says that he still has a fur hat that he found on the ship – should he bring it? Yes, why not, the judge says. We wonder – a fur hat in the tropics? We are later told that many people in Somalia are relying on clothes from humanitarian aid shipments and apparently that is what Europeans give, along with high heeled shoes.

25 December 2010

The trial

Since 22nd November 2010, a group of ten Somali men have been on trial in the Hamburg Youth Court. They are facing charges of kidnapping and seizing a ship, charges that carry a maximum of 15 years imprisonment. What they are alleged to have done is board a German ship, the 'Taipan', as it sailed 500 miles off the coast of Somalia last April. The group were captured by a Dutch marine commando and taken to Netherlands and from there they were extradited to Germany to stand trial in Hamburg. Hamburg being the city where the ship's owner's multi-national company is registered.

20 lawyers are representing the ten accused and so far 14 trial dates have been set, meaning that the proceedings are set to last until the end of January 2011. The reason the case is being heard in the youth court is that three of the defendants are not yet adults in German law. The youngest is only 13 years old and cannot be tried under German law.


Somali Voices

Voices from Somali people - in Germany, in Somalia or wherever they are...

Upcoming Events (German)

The first 'piracy' trial in Hamburg for 400 years.
Ten Somali men are accused of having attacked the ship MV Taipan near the Horn of Africa. The MV Taipan belongs to a Hamburg company, that is why they are being trialled in Hamburg. What's the background? Why do fishermen become pirates at the Horn of Africa?


Media Coverage

Links to media coverage of the trial...

Report from Day 5

Day 5 - 17 December 2010

The day stars with the judge observing that still no representative of the Youth Authority or the court aid for minors are present. According to German law, when minors are on trial, these have to be present in order to ensure correct proceedings. But since the personal details of the accused aren't being discussed yet, the judge decides to proceed. 

Then there is more debate about whether the press should be allowed to make drawings of the accused, and whether the accused can be identified from the drawings. The press wins, drawings are allowed.

Finally, the examination of Dr. Helmke from the Hamburg University Hospital (UKE) on determining a person's age continues. He states that the certainty for determining a person's age by examining the carpal bones is 95%. Depending on the method applied, he estimates that the youngest accused (who claims to be 13) is at least 14, or 19 plus or minus 4 years.

A lot of details follow about the growth of bones and the different ways of analysing them and why the  Dutch expert originally estimated a younger age. In cross examination it turns out that the statement of “95% certainty” has to be qualified somewhat. The number is based on a study from the late 1930s, done with North American children from a white middle class background between the age of 0 and 19. Nutrition or malnutrition, illnesses, traumatic experiences, ethnicity can all skew the results in either direction. 

Next up is Dr Fuhrmann again, also from the University Hospital, who already gave evidence on day 3. He talks of ways to determine someone's age by their teeth and the collar bone. The tooth method is focussed on the wisdom teeth. According to the decay of the wisdom teeth, he estimates the age to be 23. But socio-economic factors can influence the results.

During the last hour, one of the defendants repeatedly takes his headphones off and massages his ears. I'm thinking: he can't stand it any more. Then the youngest accused complains about headaches and it looks as if he's wiping tears from his face. Court takes a short break.

Fuhrmann is head of the quality control board in his department. Counsel Jung wants to know what quality control means – does it mean that everyone reaches the same results? Yes, when every medical expert starts with the same data, there shouldn't be any discrepancies. Jung quotes from a study that was presented at Fuhrmann's own conference two years ago, which found that the age development among Canadian First Nation people differed from any other ethnic group. Furhmann says he hasn't actually read the study and can't comment. Jung continues to present findings that show a wide range of estimates for the same person, ranging from 14 to 25. Again, Fuhrman doesn't know the details and can't comment.

Court closes. The cross examination of Dr Helmke will continue on 5th January.

20 December 2010

Report from Day 4

Day 4 - 15 December 2010

Hardly anyone is there – only 4 members of the public and 4 press. Additionally 3 innocuous looking men are sitting there, more interested in observing the public than the trial.

An argument develops about whether the press should be allowed to make drawings in the court room (cameras have already been banned), because again, one newspaper published a drawing that clearly showed one defendant.

The judge continues with the objections to the expert witnesses. He takes a 15 minute recess to discuss his findings with the three jurors. When he comes back he spends an hour reading his 12 page decision not to grant the objections. It's impossible to transcribe all of this, but the reasons were mostly formal.

As I listen to all this I wonder what the interpreters are saying. I hope they are speaking nice stories into the headphones of the accused.

Counsel Jung asks the judge how it was possible to discuss the 12 page document with the jurors in just 17 minutes. The judge declares that is not going divulge where and when he discusses with the jurors.

The judge continues with the examination of another expert witness, Dr. Helmke from the University Hospital. He explains the procedures. “This patient didn't have an interpreter, and we didn't try to communicate in English or French with him”. He wants to quote from a dissertation, is asked by whom, he doesn't know. He says he read it on the internet. He talks a lot about the growth of bones in the hand and the difference in development between girls and boys.

Report from Day 3

Day 3 - 8 December 2010

One of the expert witnesses on the question of the age of the youngest accused, Dr Fuhrmann, is supposed to give evidence today. But first counsel Jung submits an objection to the witness for a number of reasons.

The prosecution has failed to notify the defence of the medical examination performed on their client. They have also failed to explain to the accused why he was dragged out of prison and into hospital and what the medical examination was about. The accused was not informed of his rights, no interpreter was involved. His medical history was not recorded. The accused was ordered by means of gestures to open his mouth, to get undressed, to lie down underneath the x-ray machine, while he had no idea about the purpose of the machine. The defence had no possibility to object to any of this.

The defence then reads from publications by the witness and his colleague, in which they write about the role of the 'Expert Witness in Court'. They write that the primary goal is not to establish the truth, but to fend off critical questions by the defence and never to allow any doubt about the expertise. Otherwise they would risk their status as experts. In other words: if they were to give evidence that ran contrary to the prosecution, they could forget about their next job. There is obviously a monetary interest involved and the accused becomes an object of that interest.

More questions are raised about the relevance of the findings, the lack of a reference population, etc.

Then the lawyer raises the question if the experts aren't guilty of intentionally injuring his client by subjecting him to an x-ray examination without any medical indication. Therefore it would be in the witness' own interest not to give evidence because of the risk of self-incrimination.

After some discussion, the judge decides to proceed with hearing the witness and decide about the objection afterwards.

But now another problem arises: the defendants complain that they haven't been able to understand due to the speed of the exchange. The translators haven't been able to keep up, because many of the words used don't exist in Somali and had to be circumscribed. And how would the counsel know what their clients think was said? The judge reminds everyone to talk slowly and suggest that the translators should re-translate the circumscribed terms into German to check if they are correct. No doubt we are witnessing great moments of the German justice system.

But now it's back to the witness. Dr. Fuhrmann explains that in his opinion the accused is at least 18 years of age. The judge wants to know why no interpreter was present. That wasn't necessary, says Fuhrmann, because he was able to indicate to the accused what he wanted him to do. There was no communications problem. Does he remember his publication? No, not precisely.

The examination of the witness isn't finished but court closes.

Report from Day 2

Day 2 - 1 December 2010

The second day of the trial is mostly spent with procedural issues.

First the judge complains that one of the lawyers is not sitting where he was the day before. The judges stresses the need to stick to the seating order, otherwise he might confuse people. The defence, in turn, complains that the press broke a court order and published photos of the defendants.

The accused enter the court room and seem slightly more relaxed than on the first day.

The lawyer for the youngest accused demands bail for his client because he is unlikely to be convicted. He explains that his client lost both his parents at the age of four, and from the age of ten had to live totally independently. How he has lived a life not knowing in the morning whether he would still be alive in the evening and whether he was going to get anything to eat. That he grew up in archaic society, determined by hunger and survival.

Then a discussion between the judge and one of the lawyers evolves around the issue of an application to object to the so called experts who have determined the age of the youngest defendants. At this stage I have difficulty following the debate. Not because they don't speak clearly but because of the technical jargon. I wonder what the defendants hear through their headphones, how all this is being translated, and I realize that several trials at once are happening. And I wonder how the defendants would explain all this to their best friend in Somalia.

19 December 2010

Report from Day 1

Day 1 - 22 November 2010
I was born during the rainy season
A report about the first day of the 'piracy' trial

It's the first day of the so called Piracy Trial in the youth court in Hamburg. The room is full:
  • 20 lawyers
  • 10 accused Somali males, among them one child and one adolescent
  • 3 translators
  • 50 reporters
  • 30 camera people in the hallway
  • 40 members of the public
  • and way too many security staff

First, the judge asks the defendants for their names, birth dates and places of birth. Most have to repeat their name several times: names which neither the judge nor the press have ever pronounced. The translator repeats the name, the judge repeats the name and it all sounds like a classroom full of Europeans trying to learn the Somali language.

Most of the defendants say they only have a birth year, not a birth date. One of them says: we get our birth date from the season. I am 24 years old and I was born during the rainy season.

I was born under the tree! says the next. Other than that I don't know anything about my birth date. I think I am 20 years old.

The judge is calm and promises to try to pronounce everyone's names correctly.

Then the prosecutor reads out the charges, very quietly. I wonder if she does it on purpose.

The low, monotone voice of the prosecutor reading charges puts the court room to sleep. Journalists read their cell phones, others yawn. They all wake up again when one of the lawyers wants to read a joint statement of the defendants.

It's about international law, fishing rights, resources, poverty, living conditions, minors who shouldn't be trialled, the question whether a German court has any right at all to trial these people, and it ends with the statement that a guilty verdict in this trial would hardly have any influence on piracy in Somalia.

The judge replies with the assurance that the age of the youngest accused would have to be determined first, and that questions of international law would be considered.

The prosecutor claims that the city of birth of one of the defendants doesn't exist. Neither she nor the foreign office have heard about it. But Wikipedia knows about this town with a population of 62.000, schools, etc. The lawyer is also in contact with the mother. She has organised papers from the defendant's school, the headmaster can be contacted, they even provide phone numbers.

The prosecutor still claims that the city may not exist, although everyone can see it on Google Earth. Even a reporter for RTL was there some time ago and reported about it.

Outside, different groups alert the public to the trial. Some have banners with slogans against colonial injustice, others with quotes from the Somalian fishermen and they take the voices and thoughts of the accused to the street.

18 December 2010

Press Release by the Defence Counsel

22 November 2010
The home of the ten defendants is Somalia in East Africa.

Since 1991, Somalia is being ravaged by civil war; the UN classifies the country as a 'failed state' – a country that can't be helped, even by the UN. Similar to Afghanistan, the political and social structures have largely been destroyed. Hundred of thousands Somalians are suffering from hunger, the medical system has collapsed. Frequently military fighting between clan militias breaks out, with a high number of casualties. Al-Shahb are terrorizing large parts of the population. The Somalians are suffering; there is no escape within the country.

The accused were arrested on the 5th April, 2010 on the open sea off the Somali coast, and were transferred via the Netherlands to Hamburg.

From the viewpoint of the defence, the following questions will need to be addressed foremost:

1. According to German law, only persons may be subject to a criminal trial who were over 14 years of age at the time of the offence. With one of the defendants, there are serious doubts about his ability to stand trial because of his age. Criminal proceedings may not be initiated against anyone under the age of criminal responsibility. Determining the age of this defendant is therefore a  priority.

2. According to the files, Dutch Marines took the accused from a German Freighter to a Dutch war ship, exercising national law, and held them there for a length of time. A court-issued arrest warrant did not exist. Following that, the accused were held in deportation detainment in the Netherlands; the Dutch state was not willing to start criminal proceedings against them. It will have to be established whether the arrest of the accused by Dutch Marine personnel, the transfer to a Dutch prison and the subsequent deportation to Germany were lawful according to international, German and Dutch law. An unlawful transfer of the accused to Germany could be sufficient reason for a stay of proceedings.

3. There are indications in the files that German authorities were informed about the happenings on the MV 'Taipan' from an early stage, and that they may have been involved significantly in the arrest and transfer of the accused to the Netherlands. The defence is seeking information regarding the level of involvement of German officials and what knowledge these officials had. This will have to be determined.

4. In the case that the guilt of the accused can be proven, the living conditions of each of the accused with regards to the local conditions will have to be established precisely. Only then can their guilt be determined and judged. In conjunction with this, the developments in Somalia since 1991 will have to be examined by means of expert opinions, as well as the question of what impact the poaching of European and Asian fishing fleets and the disposal of toxic waste off the coast of Somalia has had on the lives of the accused.

5. It remains to be seen in how far the Justice Department of Kenya will be willing to be the “sweeper” for the prosecution of Somalians. The EU and other countries are negotiating with Kenya about a financial wish list of the Kenyan government in order to come to an agreement of mutual assistance. The rather random assignment of prosecutions against Somalians in the USA, France, the Netherlands, Kenya and now Hamburg are no solution to the problem. Everyone knows that only a political solution can be effective.

6. This trial will show whether the engagement of the Hamburg Courts with events in the Indian Ocean is appropriate. The terms of general and special prevention, as they are defined in German criminal law are certainly not applicable. A guilty verdict of of this court will certainly not have any effect on piracy in the Indian Ocean. A rehabilitation of the accused in Germany is not likely to be desired, a rehabilitation in their home country is impossible.

Contact us

You can contact us at ReclaimTheSeas@googlemail.com

02 December 2010