01 September 2011

Universal jurisdiction, Radbruch's formula and an unexpected stun grenade

Court report of 1 September 2011

Today, only procedural matters were dealt with. First, the presiding judge got into his usual habit of declining another application. Another application for a stay of proceedings had been made on the grounds that a) the court had no jurisdiction over what happened on the Taipan and b) the trial was violating the human rights of the accused.

As far as the jurisdiction is concerned, Judge Steinmetz explained that German law was applicable even on the high seas, because no other nation was in charge there (and Germany was involved because of the flag the ship sailed under and the German crew members) and because of the principle of universal jurisdiction, of which piracy was the first real application. Also, Radbruch's formula was not applicable here.

The other reason given in the application was the fact that the defendants were held in a far-away country, undergoing a trial with most of the proceedings being totally foreign to them and all this while they are worried about the plight of the families in Somalia - where in addition to the civil war there was now also a severe famine. This meant that the defendants could not concentrate on the proceedings and therefore they couldn't defend themselves properly. This matches what could be observed in court over and over – the defendants declaring that they can't concentrate, that they are unable to follow what's going and that they are concerned about their families.

The judge – no surprise – sees this differently. There was additional stress for the accused, but it was their duty to endure this (yes, the defendants have duties in court). The court had a duty to care for them, which was fulfilled by providing lawyers for them. The defence lawyers also carried a special responsibility.

After that was out of the way, the judge addressed the fact that this was the 44th hearing date and still not all witnesses had been heard. His main concern was a third Taipan crew member from Sri Lanka, who the court had so far failed to subpoena. The judge posed the question of whether interviewing this witness was really necessary. Six of the defence lawyers and the prosecution immediately indicated that they had no desire to hear this witness. If the witness is not heard, then there is only one more session with the Norwegian expert Hansen on Friday, 2 September, which would conclude the gathering of evidence.

Finally there was the matter of material evidence from the Taipan, that was still with the police in Dubai. This includes 10 cartridges, 1 rope, a pair of yellow shoes and, surprisingly, a stun grenade.
Since no one has suggested that the pirates had been in possession of a stun grenade, it probably belongs to the Dutch marines. But why did they leave it behind? And why didn't the German police investigators find it when they inspected the Taipan?