All Go for Atalanta

A few comments regarding the verdict.

“I am feeling a great injustice,” said one of the defendants. “The freedom of international maritime trade is affected,” said the judge.

The 'Piracy' trial against 10 Somali that has been dragging on for almost two years finally came to an end on October 19, 2012. After 105 trial days, the verdict came rather suddenly.

Two days earlier, after the defendants had had their 'last words', one of them announced having another witness. The witness was supposed to prove that another defendant who had promoted himself to the status of 'crown witness' was in fact lying. But, as with most applications made by the defence, this one was also declined.

Then, for the sixth time, the judge declared the trial to be over and proceeded to announce the verdict.

He spoke calmly for four hours, after a lengthy break so that the media and the chief prosecutor could attend the performance. Guilty of kidnapping and armed assault on a shipping vessel.

Time and place of the incident: April, 2010, 500 nautical miles off the coast of Somalia on board the German-flagged container ship MV Taipan.

The sentences: two years imprisonment for the under-age defendants, who have already served two years in remand and are therefore free. Between six and seven years for the others. Even the 'crown witness' was given six years, despite the prosecution having asked for a discount of four years for him compared to the others.

The detailed reasoning of the corroborating and the exonerating circumstances for each defendant sounded like a summing up of the criticism that observers had voiced all along: the destruction of fishing grounds by foreign fishing fleets, illegal waste dumping and colonial justice.

The judge even spoke of “subsistence piracy” - a term that certainly was not part of his vocabulary prior to the trial. Many of those present were surprised by the obvious learning curve.

The prison sentences are based on two arguments. Firstly, the assumption that the defendants had not been forced to participate as they had claimed. This argument had been made possible by the court's refusal throughout the trial to hear even a single witness who could have supported the defendants' version of the events. Secondly, the allegedly professional equipment and military style of the attack, supposedly proven by the skiffs and the weapons used, as well as the damage done to the Taipan.

Anyone who has seen the pictures of the accused at the time of their arrest, dressed in flip-flops and t-shirts, will wonder what a non-military group would look like in the eyes of the judge. And to what degree the damage sustained by the Taipan was caused by the covering fire from the Dutch frigate during their operation was never investigated.

There were many aspects where the judge had to admit that even 105 trial dates were not sufficient to reveal the truth. It was never established who entered the Taipan first, who took control of the helm, and who actually fired shots.

However, the judge acknowledged that the accused had not been the ones who had planned the attack and that they had no intention to kill.

The timid attempt of the court to acknowledge the difficulties inherent in applying German judicial concepts to events that took place off the coast of Somalia did not stop it from handing down long prison sentences. Instead, the sentencing sounded in parts like emotional assault.

Two items made it clear how the court was willing to risk re-traumatising the defendants.

One of the defendants had stated his age as 13 years. Had the court accepted this, he could not have been held in custody and he could not have been tried in a criminal court in Germany. Therefore every attempt was made to make him older. His birth certificate, school records and even an affidavit by his own mother were ignored on the basis that Somalia was not a functioning state, therefore it could not have issued valid documents.

Instead, the dubious methods of the Hamburg forensic institute were employed. After his arrival in Hamburg, the accused was taken there to have his age assessed. There was no translator present and his hands and feet were in cuffs. His was gestured to put his hand under an x-ray machine. The young Somali, who had never seen modern medical equipment, assumed that his hand was about to be chopped off.

Another one of the accused has been suffering from mental health issues for a long time. His small son had been kidnapped in Somalia to force repayment of debt. He had claimed that the reason he had participated in the attack on the Taipan had been to earn money to release his son. However, he had not repeated this in his closing words.

For the judge, this meant that his claim was implausible. The accused was expected to repeat the traumatising story in order to be credible. The thought that it may have been unbearable for him to tell the story again did obviously not cross the judge's mind.

All this indicates that the entire programme, including the sentencing had been primarily driven by the desire to publicly justify a multi-million Euro military presence. The most powerful nations do not deploy dozens of well equipped war ships in order to stop a hand full of flip-flop wearing pirates. These ships are deployed to control the flow of goods between the producer and consumer regions.

Trial over – prison sentences passed down

The trial has finally come to an end. The judge passed down prison sentences ranging from two years for the under-age accused to between six and seven years for the older ones. The 'crown witness' was sentenced to six years.

The prosecution had demanded between four and five years for the under-age defendants and between six and 12 years for the others.

For all defendants, the time they have already been detained is subtracted from the sentences. For the under-age defendants this means they will not have to go back inside.

For the adult defendants this means that two years and six months will be taken into account.

More info to follow.

Emotional words in court

Court Report Day 104 – 17 October 2012

The last closing addresses and emotional words from the accused.

The last closing addresses were given by the lawyers for one of the under-age accused. They largely followed the arguments of their predecessors but also stressed that the trial had officially been a youth trial. However this did not show during the trial.

Then the accused each made a personal statement. They all spoke about their families, their situation in Somalia, hunger and war and what drove them to participate in the attack on the Taipan, for which they apologised.

They talked about how desperate their were in custody not being able to help their families. “Without the help of my lawyers, my family wouldn't be alive anymore,” said one of them.

Some talked about how they have been thinking about suicide.

They all seemed to be afraid of the future, when they might be imprisoned. “I won't have a lawyer then,” said one of them.

One of the accused caused a stir when he told the court that the 'crown witness' had taken control of the Taipan. The defence of another accused asked the court to investigate this statement, which would have meant re-opening the trial. The court rejected the application.

On Friday, 19 October, the trial will in all likelihood finish and the verdict and sentences will be passed.

Court Report Day 103 – 15 October 2012

There are two more closing addresses outstanding, which will likely be held on Wednesday, 17 Oct, meaning the verdict and sentencing might take place on Friday, 19 October.

First, the defence for the 'crown witness' read a statement by their client. He apologised to the court, saying that during the last trial date he had been outraged and unwell. He didn't want to talk about his family. The names he had originally given were correct, later on he had given wrong names out of fear. His cousin had been killed in a car accident in Somalia, and it was possible that he had referred to him as 'brother', which was common.

A phone number stored on his phone was that of his father, another number did belong to one of the organisers of the attack, but he had only wanted to use it contact his family, but never actually used it.

He didn't want to talk about what had happened prior to the attack on the Taipan. He maintained that he had been the translator and not the leader, naming another accused as the actual leader.

That person's defence then made two applications. The first one was to hear as an expert witness a security expert who had written an article about piracy attacks and the role of safe rooms. The witness could verify, according to the defence, that the accused never had a chance of taking the crew hostage and that therefore the charges should be reduced to attempted hijacking, rather than hijacking.

The second application was to hear a London lawyer who had negotiated with pirates and knew the clan structures in Somalia. He would be able investigate the relatives of the 'crown witness' in London. This was important because the 'crown witness' had always denied having a brother in London, and the court was obliged to investigate his credibility.

Both applications were declined and the judge declared, once again, the end of the trial. In addition, the prosecutor stated that the 'irritations' that had been caused by the 'crown witness' last time had been sufficiently clarified.

This was then followed by more closing addresses, which mostly referred to the speeches that have already been given.

The defence for the accused who had been the first to make a statement in court stated that their client's role had been to bail the skiff during the attack. He had therefore not carried a weapon. He had been acting out of dire necessity because he had seen no other way to feed his family. “Who knows how we would have acted,” asked the defence.

The defence claimed that the court and the prosecution had been out of their depth during this trial. The defendant's wish to be kept together with other Somali-speaking prisoners had been used against him and he had been kept in isolation as a result. The defence concluded by asking for a prison sentence of four years.

The defence for another accused criticised the court for holding the trial here. The lawyer had changed his opinion on this and was now convinced that the trial should have been held closer to the defendant's family. He was also convinced that the decision to extradite the accused to Germany had been a political one.

Referring to the Indian crew of the dhow Hudhud, he criticised the court for not exploring the possibilities to having them interviewed in India, instead having been driven by the media who had claimed that the trial was costing too much.

The lawyer said he was especially outraged about the court's refusal to grant his client bail with the argument that he was better of in prison in Germany then free in Somalia. He demanded his client be acquitted.

The remaining closing addresses will be heard on Wednesday, 17 October 2012.

Court Report Day 102 – 27 September 2012

The judge declared that the court would - once again - revert to gathering evidence. This was due to an application made in August 2010 – before the trial even began – by the accused who had become the 'crown witness' later on. The application stated that the accused had heard that his brother had died in a car accident and he had therefore applied for permission to phone his father.

However, the name and signature on this application were different from the name the accused had later given the court. The judge said that both the name and the reasons given for the phone call were in contradiction to what the accused had later told the court. When asked to explain the differences, the accused said that he could only remember making the application but couldn't remember any details.

The accused then became agitated and asked why things that were written two years ago would be relevant today, which prompted the judge to repeat his questions.

The court then took a break but never resumed because the 'crown witness' was declared unfit for trial for the rest of the day.

The following trial date (which would have been day 103) was also cancelled due to illness of the 'crown witness'.

The next scheduled trial date is Monday, 15 October 2012.

Court Report Day 101 – 19 September 2012

The closing address of the second lawyer for one of the under-age defendants which was started at the last date, was continued. The lawyer argued that his client had acted out of pure necessity to survive. He had been seriously under-weight when he arrived in Hamburg. A prison sentence would be reflective of colonial justice which only served the interests of the ship owners.

Next was the defence for the accused who had been named as the alleged leader by the 'crown witness'. They followed up on the previous address by accusing the court of having this trial in order to protect the shipping routes for German merchants. They also raised the question of what purpose a sentence was supposed to serve. They pointed to a fracture in the trial, which according to them had occurred after the Norwegian expert witness Hansen had been heard. From then on the court had refused to approve any witnesses for the defence and had only seemed to be interested in closing the case. The court's refusal to hear a witness from Somalia had been justified with excuses such as that the time frame for a visa application had been unclear or that it was not known whether the witness had been vaccinated.

Cannon fodder in an undeclared war

Court Report Day 100 – 17 September 2012

Three defence lawyers had, as one of them said, “the dubious honour” to give their closing address on the 100th day of the trial.

First up was the defence for the accused whose son had been kidnapped. The defence quoted from a recent article in the magazine Spiegel which said that the case could not really be tried in Germany. They then explained the situation of the accused and of his family in Somalia and pleaded for the sentence not to exceed four years.

Then the defence for one of the under-age accused spoke. He said that what the West called piracy was seen in Somalia as an act of self-defence against illegal fishing and waste dumping. The aid the West was giving to Somalia was a drop in the bucket and the illegal fishing removed more protein from the Somali diet than the aid delivered. The reputation of piracy in the West was bad because it challenged the capitalist logic of free trade. Many nations were interested in the resources around the Horn of Africa. The Swiss government had described Atalanta as an undeclared war. Was the court trying to justify Atalanta? According to the UN, the illegal fishing had caused one million Somali to flee their country. The European border agency FRONTEX would then ensure that these refugees never reached Europe. This was neocolonialism.

100 days of trial – no reason to celebrate

After 100 long and torturous days in court the trial is finally coming to a close. Today for the 100th time the accused walked trough the tunnel that connects the remand prison with the court building. For the 100th time twenty lawyers assembled, three translators drove long distances to get to court and four jury members left their lives behind and spent up to eight hours in room 337 of the Hamburg criminal court building. And for the 100th time the guards dozed off during the proceedings.

For the 100th time members of the public (including two observers from a shipping company) sat behind the glass separating the public from the court and listened via the speaker system.

Court Report Day 99 – 7 September 2012

Today four more defence lawyers gave their closing addresses (one other simply referred to his address given in January). This means that 7 of the 20 lawyers have given their addresses.

Lawyers for the defendant claiming to have been hired as a mechanic to repair outboard motors, demanded that the charges against their client be dropped. They argued that the accused came from a social and legal background that was not at all comparable to that in Europe, therefore he couldn't be tried here. Violence, they said, was an everyday occurrence in Somalia, including violence between the different clans – the exact opposite of the legal framework in Germany.

Furthermore, although fish poaching and toxic waste dumping were no longer the immediate reasons for piracy, piracy was caused by them. For that reason, piracy was well accepted and seen as legitimate within large parts of the population, unlike in Germany.

Day 98: Trial ending – prosecution has given closing address

Court Report Day 98 – 6 September 2012

First, the court declined the pending application from yesterday to require the prosecution to supply the minutes of the conversations they have had with the 'crown witness'. One of the defence lawyers then announced that they had filed an appeal with the higher court (Oberlandesgericht) and demanded that the trial be paused. This also was declined by the judge who simply proceeded and announced that all the evidence had been heard and that the court would now hear the closing addresses.

Then the prosecutor gave his closing address – in record time of about half an hour. He demanded the same sentences as in February, the only change was that the 'crown witness' should be given two years less, which should be added to the alleged 'ring leader'. This would mean between four and five and a half years for the under-age defendants and between six ('crown witness') and twelve years ('ring leader') for the others. 

After lunch the defence for the youngest accused gave their closing address. They pointed to the dubious methods of age assessment and to the personal circumstances of the defendant, who had been born in a refugee camp, had lost his father and had participated in the attack on the Taipan so he could feed his mother and his siblings. They also criticised the prosecution for not taking into account the positive development of the accused since he has been in Germany. They asked for a maximum penalty of two years, which would have been served by the time spent in custody.

The closing addresses will be continued Friday, 7 September 2012, 9 am.

Court Report Day 97 – 5 September 2012

Today, the prosecution admitted having spoken with the 'crown witness' outside of the court hearings - something the prosecutor had so far refused to comment on. He would, however, not say how many of these conversations had taken place and what the subject had been, stating only that it had nothing to do with the current trial.

An application by the defence to the court to formally request the minutes of these conversations was declined. A second application, asking the court to find out if the prosecution had promised anything to the 'crown witness' will be decided at the next hearing. The defence lawyer argued that the question of credibility was crucial, because it was effectively the word of the 'crown witness' against the word of the other accused.

The lawyer continued to argue that the only subject of value to the prosecution which the 'crown witness' would have been able to talk about was the organisational structure of the Somali pirates – which would prove his leadership role in the attack.

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.

Court Report Day 93 – 21 June 2012

Today, the Indian journalist R. was interviewed again. First he told the court that he had the phone number of the alleged pirate leader Dhaghaweyne (who had not been on the Taipan and had not been arrested). He was sure that it was Dhaghaweyne's private number, but he hadn't talked to him yet. He read the number out loud and everyone, including the press, wrote it down.

But then R. didn't want to reveal the names and addresses of his relatives in India, who he said he had visited prior to interviewing the crew of the Hudhud. He was also very vague in answering the question of whether he had had a conversation with the crew prior to the filmed interview, during which he may have suggested their answers.

Lastly, he revealed that during the conversation he had had with the German federal police, there had been two more police officers present. Because there had been contradictions between R.'s recollection of the conversation and the notes made by one of the officers afterwards, the court reluctantly agreed to an application by the defence to have these other two police officers heard in court.

Because the unofficial 'crown witness' X had stated that he would not answer questions from the other defence lawyers, they applied to the court to take over a list of 20 questions they had compiled for X and ask them as questions from the court. The court will decide about this at the next hearing. Both the court and X denied that there had been any out-of-court agreement between X, the prosecution and the judge regarding his statements.

This was the last trial date before the summer holidays, the next date is July 12. The judge noted that this may sound strange to those who are held in custody

Court Report Day 92 – 20 June 2012

An even shorter trial date today – just one announcement by the judge.

As was expected, the judge declined the application by the defence to hear the Norwegian academic Stieg Hansen for a second time, in order to verify statements made by the 'crown witness'.  The defence had argued that Hansen had knowledge of tribal networks and knew informants in Somalia that would enable him to verify or otherwise what the accused had said. The judge himself had spoken to witnesses in Somalia on the phone, but was not willing to hear them in court because he said they could not be identified.

The judge countered the argument saying that referring to these tribal networks was only showing that there were no institutions in Somalia that were “orderly and not corrupt”. Even Hansen would not be able to positively identify any witnesses. This was in contrast to the Indian witnesses, who had been identified by Interpol. He did not respond to the accusation that the court was applying different standards to defence witnesses and to prosecution witnesses.

The journalist R. will be appearing one last time in court on 21 June, starting at 8:30 am.

Court Report Day 91 – 15 June 2012

Another short day in court.

One of the defence lawyers submits a lengthy application regarding hearing Stig Hansen, the Norwegian academic who had given evidence about the social situation Somalia at the beginning of the trial. The court had rejected the application to hear him again after allegations were made that the 'crown witness' had lied about his past. The application today was another attempt to have Hansen heard, on the grounds that the court had rejected hearing anyone from Somalia. The defence pointed out that the court had cited difficulties serving summons to people in Somalia and not being able to positively identify them as reasons not to hear any witnesses from Somalia. However, when it came to the Indian crew of the dhow, the court was happy to hear their statements via the Indian journalist without knowing being able to identify them. The court might apply different standards for witnesses for the prosecution and those for the defence.

Three other defence lawyers joined the application, the prosecutor wanted it rejected. The court will make a decision at the next hearing.

Then the judge presented a note from the French police, saying that they had no finger or palm prints from the 'crown witness'.

Finally, the court announced new trial dates, all the way to the end of November:

September 2012
Wed, 05.09.
Thu, 06.09.
Fri, 07.09.
Wed, 12.09.
Fri, 14.09.
Mon, 17.09.
Wed, 19.09.
Thu, 27.09.
Fri, 28.09.

October 2012
Mon, 15.10.
Wed, 17.10.
Fri, 19.10.

November 2012
Thu, 01.11.
Wed, 07.11.
Thu, 08.11.
Wed, 14.11.
Wed, 21.11.
Thu, 29.11.

No trial on Thursday, 14 June

The next trial date on Thursday, 14 June has been cancelled.

Court Report day 90 - 6 June 2012

More contradictions and how the statements of Indian witnesses, who didn't want to appear in court, still ended up in court.

The day started with a non-public viewing of the video the journalist R. had made with two of the Indian crew from the dhow Hudhud in India. The two had stated that they didn't want to appear in court, didn't want to leave the country and, later, also didn't want to be interviewed in the German consulate. It is unclear whether the court even told them that the recordings of their conversation with R. would be used in court, let alone ask them. We wonder if the court would have proceeded in the same way if the people concerned had not been mere ship-crew but members of the upper class.

Then the 23 minute video was shown again in public, with a live translation from a teacher of the Urdu language. Sometimes the translator had difficulty understanding everything and had to leave passages out, which he substituted with “dot dot dot”. Both the translator and the journalist blamed this on the fact that the interviewed crew members were 'simple and uneducated people'. However, a few times it were the questions by the journalist, which the translator couldn't understand, and after a few attempts by the translator, the journalist himself translated what he had said in the video.

Development stages of a translation: uneducated - educated - dot dot dot

Therefore the examination of the video took hours, with one or two minutes being played and then the video being rewound and played again.

After a few hours one of the accused voiced what everyone had been thinking: “I have difficulty understanding, maybe the translator is not the right person to translate?”. The judge replied that the court didn't have a choice. However, when the translator for the Dutch captain of the frigate 'Tromp' made a few mistakes, she was swiftly replaced. Obviously this wasn't wanted in this case.

It became obvious that the journalist had asked leading questions, which meant that the 'uneducated' interviewees would give the desired answered. However, at no stage did they state what the German police officer (who had interviewed the journalist) had claimed they said: that they were appalled that some of the accused were able to attend school in Germany. The journalist had already told the court that this wasn't the case, but the police officer insisted. More discrepancies between the video and the statements by the police officer showed, and at one stage the judge said that he didn't know who to believe any more.

Because the showing of the film had taken so long, there wasn't enough time to answer all the questions from the lawyers. However, the journalist had stated before he came to court that he didn't have any more time. The judge got grumpy and told him that he could be forced by subpoena to appear in court. The journalist replied that his legal adviser had recommended that he shouldn't appear in court at all, and that he had only done so because he had promised the judge verbally to do so, and that no one could force him. It was obvious that he was disappointed in the German police officer.

The judge then told him that he would phone him in the morning to make another appointment, asking him, of all things, to think of the accused who have had to endure the proceedings for two years now.

Court Report Day 89 – 04 June 2012

Today, an officer of the German Federal Criminal Office (BKA) gave evidence. The officer had spoken with the Indian journalist R., who had given evidence the week before. They had spoken about the interview R. had made with the crew of the dhow Hudhud. The officer had taken notes of the conversation – however, he had to admit that the notes were taken several days later, and after having had a talk with the officer who was in charge of the investigations around the Taipan.

The officer named the person, whose family had possibly been involved in organising the attack on the Taipan – the journalist had refrained from doing so.

The judge tried to ascertain whether the notes were reflecting what R. had told the officer, or what the Indian crew had told R., but that didn't really become clear. The officer did, however, confirm that the crew had stated that they found it scandalous that the three youngest accused were allowed to go to school in Hamburg. This information had been reported in the papers, but R. had refuted it.