Court Report Day 96 – 30 August 2012

As expected, the bail applications from the last hearing were declined. In one case, the defence appealed the decision, but it was upheld.

Then followed an almost enthusiastic report from the representative of the youth court aid about the three under-age defendants who have been living in a youth facility since April. According to everyone involved, their “politeness, reliability and eagerness to learn are exemplary”. They were also looking after each other and getting on well with everyone. They were, however, deeply worried about their families in Somalia.

Then one of the defence lawyers announced that – unbeknownst to the prosecution or the court – his client had been visited by two police officers and a translator. The defendant had refused to talk to them, so they had left. The prison's visitor book showed no entries, therefore the lawyer applied to ascertain the names of the officers. This was declined by the judge.

Another application to hear the uncle of the “crown witness” who supposedly could confirm or deny some of his statements will be decided by the next hearing.

Next date: Wednesday, 5 September, 9 am

Court Report Day 95 – 30 July 2012

First, the judge announced that the applications for bail for two defendants had been declined.

Then yet another German Federal Police officer who had been present during the interview of the Indian journalist R. gave evidence. However, she could not add anything significant, most of her memories came from reading the notes.

 Next, a fax from the French police was presented, confirming that no finger prints of the 'crown witness' were held. This doesn't surprise us because in a successful hijacking there are no fingerprints taken – instead the ransom is paid, the crew released and the ship returned.

copyright:hmagdy

 This was followed by another call by the defence to investigate the connections of the 'crown witness' to his alleged brother in London. Several defence lawyers said that the prosecution should have undertaken these investigations a long time ago and that there was no excuse for not doing it.  The ensuing argument resulted in an application to to have the prosecutor heard as a witness in his own case. As expected, this application was declined.

Finally, one of the accused wanted to make a statement, but the court ran out of time.

                                                                  

Court Report Day 94 – The Prosecutor's Apprentice

Court Report, 12 July 2012.

Today, a further witness from the German federal police was heard. L. works at Frankfurt airport and he participated in the conversation with the Indian journalist R., who had interviewed the crew of the dhow Hudhud. The officer's statement was supposed to resolve discrepancies between R's recollection of the conversation and the notes taken by the other officer, B.

L. stated that he was asked by B. to accompany him to the TV station, but that he had no idea what it was about. His area of responsibilities were kidnappings. Why he - 'the driver', as he was called by one lawyer - ended up signing the file notes remained a mystery.

Juvenile accused are out on bail!

After two years in custody, the three under-age defendants have today been finally released on bail – a step that was long overdue. While most German juvenile accused are usually released after a few months, these three have been detained since Easter, 2010.  Until now, the court had rejected all applications for a release on bail, despite the fact that a youth facility has been available for some time and despite a very positive report from the prison management.

The three are now in a youth facility where they have enjoyed their first day of freedom. We are asking the media to respect their wish for privacy.

The trial will continue on Monday, 16 April. The next trial date after that is Wednesday, 18 April (additional date).

Summary of 5 – 7 December 2011

It is becoming more and more obvious that the court is not willing to allow any defence witnesses. In the last couple of weeks a number of attempts were made by the defence to summon Somali residents as witnesses to prove that the accused were forced to participate in the attack of the Taipan. All these applications have been declined by the court on the grounds that it would be too difficult to track the witnesses down (the absence of a functioning postal service and a registration system in Somalia were cited several times), that it would be too difficult to get visas for them, that they wouldn't be able to travel, or that obtaining the visas would involve having to pay a bribe and German court couldn't do that. 

Now the defence has tried to address these issues and to counter these claims. One lawyer presented detailed information about a plane owned by the German intelligence service BND, which has been used in the past to fly members of the Taliban from Afghanistan to Germany for negotiations – an operation that was not hindered by the absence of a registration system in Afghanistan, the lack of a postal service or the lack of visas. The lawyer listed the registration details of the plane, who owned it and where it was currently located. But the judge is not interested in knowing about the plane, he's only interested in finding out how the lawyer found out.

Then another lawyer presented a list of the crew members (including passport numbers) of the Dhow that was used as the 'mothership' by the pirates. Any of these people would be valuable witnesses for the defence. Again, the judge doesn't want to hear about it and claims that such a list can't exist. And now it's the prosecutor who demands to know how the lawyer obtained the information.     

And again, the three under-age defendants were refused bail. As before, everything that is presented for their release – a very positive report by the prison staff, an offer of accommodation by a youth organisation – has been used as arguments why they can't be released. According to the judge, the three are enjoying privileges in prison (e.g. access to a TV) which aren't available in the youth facility. Therefore they would be better off in prison than outside.

And another accusation which has been made before has been made again: the judge alleged that people who show solidarity with the accused would also be prepared to help the accused escape. This time, this accusation was made in a written statement by the judge, which was handed to the defence in a non-public part of the meeting and was not published at the time. Most of the lawyers were visibly upset at this procedure, because it meant that the defendants themselves would not have access to these allegations. A heated argument between the defence and the judge ensued. The judge refused to have the statement translated verbally or in writing – after all “in other circumstances also, the accused don't always understand everything”.

Court Report Day 59 – 23 November 2011

The day starts with a rather intrusive photographer from the tabloid paper “Bildzeitung” taking close-up photos of the accused before the trial starts. As soon as he has left, three defendants complain that that neither they nor their lawyers had been informed and that they do not want their photos taken. An incident earlier this year, where the brother of one of the accused had been murdered as a result of a newspaper report about the trial, shows that their concerns are justified. The judge replies, saying that the photographer had been given permission under the condition that the faces would be pixilated – a rule he had set very early on in the trial, and which has not always been obeyed by newspapers. One of the lawyers asks whether the name signs on the tables would be pixilated as well.

But then the judge surprises everyone by announcing that was considering to bring in a witness from Mogadishu, after already having declined an application by the defence to do so. The witness could testify that one of the accused had been press-ganged, according to the defence. The judge reports about a long telephone conversation he has had with a Somali professor in Oslo about the safest way to get the witness out of Somalia and to Hamburg.

Finally, the lawyer for one of the younger defendants applies to hear the psychiatrist of the youth prison, who could testify that it is impossible to treat the psychological problems of the defendant over such a length of time by medication only. The lawyer also states that the foreigners authority had give a written assurance that the under-age defendants would receive a temporary residence permit, if released. So the judge's assessment that they would be released in to an illegal status was rubbished.

Day 58 - 21.11.11: More bizarre reasons for keeping the accused in remand

This happened after the lawyers of the 3 under-age accused explained why their clients must be released - after having been imprisoned for 18 months and 58 days of court.

Today, the judge found a new reason why the defendants – who have now been remanded for one and a half years – still can't be released on bail. Previously, he had claimed that there was flight risk, despite the fact that none of the accused had shown any desire to be in war-torn Somalia at the moment. Then he used the fact that some people had organized solidarity events for the accused against them, claiming that these people would aid their escape. Now he's on to something new:

the defendants don't have residency in Germany – and they can't possibly be released into an illegal status!

So, first they are brought here against their will and locked up. Then the fact that they don't have any social relations in Hamburg is a reason why they have to be isolated further. And now the fact that they are here is reason enough why they can't be released. In its Kafkaesque argument, the court says that, if they were released, they would be here illegally. Therefore they would have to be deported. But that would mean they would abscond, so therefore they can't be released. The fact that the three under-age defendants would in all likelihood receive a temporary permit (“Duldung”) is only a minor factor here.  

So what is the legal status of the 10 accused? Are they being held illegally? A prison cell is not an extra-territorial place - so surely if they live on German soil, that must mean that they have some sort of residency status. 

New application as result of denial of bail

The court has declined the application for bail for the three under-age defendants on the grounds that there are people in Hamburg who have shown empathy for the accused, who could then aid their flight. In response to this, the defence has applied for disclosure of the sources of this information. The court has reserved its decision.

"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.

Report from day 18 - 23 February 2011, afternoon

The age report for the youngest defendant is read out. The x-ray examination has resulted in an estimated age of 12 - 23 years (+/- 2 years). The analysis of wisdom teeth has resulted in an estimate of 25 years of age. 

Then a psychological report about the defendant is read out, which says that he is mature enough to distinguish right from wrong and to act accordingly. The result is that he no longer gets bail.

Defence counsel Jung submits an application to dismiss the work of the expert witness Dr Fuhrmann, who was involved in the process of age determination. Furhmann had described in a public newsletter in 2002 how to write a report about a person's age in a way that makes it hard to be challenged in court. A report should be written in a way that removes any doubt about the procedures, in order to ensure the integrity of the expert. For the defence, this proves that the aim was not to establish the correct age of the accused but rather to defend the expertise. Monetary gain was the driving motive. 

The minutes of the hearing in June was read out, in which the defendants complain about being locked in single cells. In Holland, and even on the Dutch frigate, they were kept together. They experienced the isolation as special hardship. 

The defence also point out that the accused have fear of being executed in Germany, and ask the judge to explain officially that there is no capital punishment in German law in order to remove their fears. 

Report from Day 13

Day 13 – 24 January 2011

A testimony backfires

The day starts badly. The judge announces that he will read the decision on the bail application for Yousuf M. The defence counsels complain that – with the exception of Yousuf's lawyer – they  weren't informed. The judge's excuse is that there are only two fax machines in court and it wasn't possible to send the decision to all 20 counsel without blocking the machines for all other trials.

The bail application has been declined. Many reasons are mentioned, ranging from the accused's ability to distinguish right from wrong to the crime not just being attempted but actually carried out. His age also plays a role – the court assumes that he is more than 17 years old. A lot of it is justified with Yousuf's own testimony in court a week earlier. The caution that 'everything you say may be used against you' turns out to be true once more.

Report from Day 12

Day 12 – 19 January 2011

Today, one of the crew members from Sri Lanka is supposed to give evidence but the court hasn't been able to track him down. The German embassy in Colombo doesn't believe that the authorities there will pass the request on. The court will pay for his flight to Hamburg.

So without the main witness, the judge decides to deal with a number of other things. One subject is the bail application of the defendant Yousuf  M., which can't be decided without the report from the Youth Court Aid. Incidentally, it's representative, Mr Koopmann, happens to drop in that day. Koopmann says, he generally supports bail for the accused but comes up with a number of concerns about the accommodation (not in a regular youth home because of the bad company there). He has had a number of conversations with the accused (with an interpreter) in order to ascertain his ability to distinguish right from wrong. He points to the civil war that has been going on in Somalia for 20 years and the general lawlessness there. Therefore his culpability is questionable. In addition, he was urged by adults to participate, which would have been difficult to withstand. But because the general situation in Somalia can't be compared to Germany, he doesn't think he is competent to make a judgement. Instead he recommends to consult a youth psychiatrist who is also familiar with the situation in Somalia.

Then one of the accused complains that, despite 3 pairs of glasses, he can't see properly. He was given the glasses following a medical examination - without a translator. The judge decides to assign him a translator as a 'seeing aid' when pictures or documents are shown.

Court closes early due to everything being out of schedule. During the afternoon, the bail applications will be discussed in camera.

Report from Day 11

Day 11 – 17 January 2011

First, the second officer of the Taipan is giving more evidence. Some photos are shown on whoich he claims to see a person pointing a bazooka at the ship.

Then there is the bail application of the defence for the three youngest defendants. If bail is granted, there is the possibility for them to be housed in a council youth housing facility. Counsel Getzmann points out that they are in a catch-22 situation: in order for the bail application to be granted, they have to prove that the housing facility accepts them, which is only possible if they are not in prison. The application will be decided outside of the main hearings.