Day 77 of the Trial

The trial has been separated today into two parts: part one consists of the 3 under-age defendants and 2 of the adults, the other part consists of the remaing 5 adults. The split was due to two factors. One was information received from the German police in India, who had confirmed that the full addresses of the crew of the dhow HudHud, which was allegedly used as the mothership, were known. This means that they can be called as witnesses. This has been applied for (repeatedly) by the lawyer of the oldest defendant. The other factor deciding the severance was a ruling by a higher court that the youngest of the accused would have to be released from custody by the end of March. 

For the judge there were two opposing needs: the need to finalize the trial for the under-age defendants by the end of March and the need for the Indian witnesses to be heard. Therefore the judge decided to reward two of the adult defendants, who had given full admissions early on in the trial, by assigning them to the group that will finish early. The trial for the remaining five will continue with the examination of the witnesses. We suspect that the reason why the four adults, who hadn't applied to have the Indian witneses heard have been grouped together with the one other  defendant is that the judge is expecting that the Inidan witnesses may contradict the stories of these four.  We say: FREEDOM to all!

When all seemed to have been settled, the lawyer of the youngest accused stated that his client had grown by 4 cm while in prison. This is significant because at the beginning of the trial, his 'official' age had been determined by dubious methods of the forensic institute of the Hamburg University Hospital, and was found to be 'fully grown'. Because fully grown people don't normally just grow by 4 cm, this indicates that the process of age assessment may have been flawed. This could have ramifications on the trial, because the court had operated on the assumption of the 'official' age of the defendant.  But maybe the judge will find a way to declare his body to have grown illegally and everything will be in order.

Prosecution is more cynical than we imagined

During her two hour long closing address, state prosecutor Friederike Dopke demanded long prison sentences for all the  

for the Prosecutor the "expert" age determination are more valid than the somali birth certificate or the letter of the mother confirming his age.

defendants today. For most of the adult defendants, she demanded 10 years, for one she demanded 7 years because of his 'good conduct' during the trial, and for one defendant she demanded 11 years. For the three juvenile defendants, she demanded 
four years, five years and five years and six months. 

We can't say that we are surprised about this. All the way through the trial, the prosecution has made it clear that they are not 
willing to believe anything the defendants say. The prosecution objected to hearing any defence witnesses and they objected to 
any application the defence made. They made absolutely no effort to investigate the circumstances that may have led the 
defendants to attack the Taipan. We had the impression all along that the closing address was written before the trial had 
started. 

What did surprise us, however is the cynicism displayed in the reasoning for the long sentences for the under-age defendants 
(one of whom produced a birth certificate showing that he was only 13 at the time of the alleged offence, but the Prosecution prefers to believe the German "Expert" in Age determination who decided that he is older than what his mother says)): only by being 
imprisoned in Germany for a along period of time could they receive some education! The situation in Somalia didn't allow for 
this. This statement, which also shows a staggering degree of racism, is particularly cynical because throughout their two year 
long imprisonment in Hamburg, the teenagers have received almost no German language lessons, despite an offer of free 
lessons from a teacher. This offer was declined by the prison management on the basis of equal opportunity: if the Somali 
inmates were to receive these language lessons, then all other inmates would also be entitled. With this in mind, it is easy to 
imagine how  the three might be denied entry to any courses the prison might offer - due to their lack of German language skills. 

trying to avoid getting  fotografed against your will

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. 

Age Determination

Disputes about the process of “Age Determination” have a history in Hamburg. The process has been used for decades to ascertain if refugees arriving in Germany are minors (people under the age of 18) or adults. This distinction is important from a legal perspective: minors are granted a number of protections that adults aren't. Minors have a right to attend school and cannot be deported as easily as adults (according to the Dublin II agreement, adult refugees can immediately be deported back to the country of their first entry into the EU). The state has an obligation to care for children, which it doesn't have for adults.

The process of 'age determination' is therefore, in reality, one of 'making people older'.