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A fair trial

Interview: Sven Pöhle / smsApril 18, 2014

A Somali man has been sentenced to 12 years in prison by a German court for a crime committed off the coast of Africa. Oliver Daum, a German law expert, explains why holding the trial in Germany was legal.

The defendant in a courtroom in Osnabrück
Image: picture-alliance/dpa

On May 8, 2010, pirates seized the "Marida Marguerite" off the coast of Somalia. After eight months, they freed the crew and left the ship after receiving a $5-million (3.6-million-euro) ransom. The crew later reported that they were abused and tortured by the pirates. When a 44-year-old Somali man was arrested after attempting to enter Germany illegally last May, his fingerprints allegedly proved he was one of the pirates. He was later tried by a court in the western German city of Osnabrück.

DW: The regional court in Osnabrück has sentenced the Somali national to 12 years in prison for his role in hijacking the "Marida Marguerite" tanker. In a similar case, a court in Hamburg sentenced 10 Somalis to between two and seven years. Did this sentence surprise you?

Oliver Daum: It's surprising when you compare this sentence to the one from the court in Hamburg. Twelve years is a severe punishment, especially since 15 years is the maximum sentence allowed by German law.

The crime happened off the coast of Somalia, the defendant is from Somalia, and witnesses were from India, Bangladesh and Ukraine. Why was the trial held in Germany? Couldn't the defendant have been extradited to Somalia?

The crime was committed on a ship that belonged to a shipping company in Emsland. When a country wants to extend its jurisdiction to a particular crime then it generally needs a legal connection. This connection was established by the tanker belonging to a German shipping company.

Oliver Daum
Oliver Daum is an expert on international marine lawImage: Privat

When German authorities or soldiers take a pirate into custody, they have to ensure that the pirate receives a fair and legal trial. That's why not every pirate is handed over to Somali authorities because, according to our understanding, such a trial cannot always be guaranteed.

Does the Somali government have a right to be involved in cases that concern Somali citizens?

Generally, yes. But when it comes to international law there is not really a way to prioritize among nations that have established a legal connection to the perpetrator. Usually, the normative force of the de facto situation decides and the case is held where the defendant is located.

Is the German legal system in a position to address such piracy trials?

The German legal code does not contain piracy as such as a statutory offense. We have to be satisfied with the offenses that we consider crimes. In this case, it included kidnapping and extortion. That was also the case at the Hamburg trial.

The defense has announced it will appeal. What will happen to the defendant after he has served his sentence - if it comes to that?

After serious crimes like this, foreigners will usually be deported. But we have an obligation not to deport people who are threatened with persecution in their home countries. Proof of the threat of persecution would have to be brought before the appropriate authorities.

The number of pirate attacks around the world has declined, and the EU's Atalanta mission has had a role in that. Is the international community getting a handle on the piracy problem?

Currently, the problem has moved more to waters off western Africa, where the number of pirate attacks has increased. As long as it appears lucrative and Western states are not in a position to meet the needs of the people in these countries, the phenomenon of piracy will continue for the immediate future.

Oliver Daum is a lawyer and is currently conducting research on international marine law at the University of Trier. He is also associated with the Institute for Security Policy at Kiel University.