23 July 2011

"What should I answer - I don't understand"

Court is taking a break over summer. The trial will resume on August 15.

At the last hearing on 15 July, the lawyer for the youngest accused filed an application for the stay of proceedings, which several of the other lawyers joined. The basis is that the accused were held for several days in captivity before being presented before a judge. According to both Dutch and German laws, when a person is arrested, they must appear before a judge within 48 hours. This was clearly not the case, as the accused were held and interviewed on the Dutch frigate Tromp for several days. The decision on this is reserved.

The recent trial dates have been characterised by two things: the audacity with which European 'Somalia experts' judge the situation of the accused and also the deteriorating medical condition of some of the accused. Frequently one of them, X takes his headphones off and states that he can't understand what's going on. He has been taken to a medical practitioner several times during lunch breaks with the result that the practitioner found him to be fit to stand trial. X, on the other hand is so confused when he comes back, he can hardly remember the visit.

In a particularly bizarre exchange the judge revealed his sense of logic:

X: I can't understand you
Judge: Can you hear me?
X: I can hear but I can't understand
Judge: But you understood my question.
X: I don't understand anything
Judge: Can you hear the words?
X: What should I answer - I don't understand.
Judge: I'm asking myself how you can reply to me if you don't understand.
It's torturous even listening to this.
One of the key questions in the trial is the question of 'mens rea' ('guilty knowledge'). Were the accused acting knowing that what they did was punishable? Again, all this is determined from a European viewpoint. The system beggars belief: the same court system, which let some of the worst mass murderers in history off unpunished precisely because it couldn't be proved that they were acting in the knowledge that sending people to the gas chambers was wrong, is passing judgement on this ability in Somali teenagers.

There are also applications pending on the release on bail for the 3 youngest accused, who are currently held in custody in a youth prison. The lawyers argue that the flight risk – the main reason for them being detained – is not a real risk, because none of them have neither a passport nor the means to travel and with the current drought and famine, Somalia is hardly an attractive destination. As one of the lawyers put it: no German teenager who is accused of a crime where no one was injured (except a Dutch soldier who broke his ankle while abseiling from a helicopter) would be held in custody for that length of time. Also, being minors, the 15 months of detention are already a significant part of the maximum penalty they might be facing if convicted. In other words, they have already served half their possible sentence.