The "Cygnus" Case (Somali Pirates)

• Jurisdiction: Holanda
• Date: 17 Junio 2010
• Court: Local Court (Netherlands)

The Netherlands, Rotterdam District Court

(Wolterink, Presiding Judge; Janssen and Van den Enden, Judges)

The ‘Cygnus’ Case (Somali Pirates)1

Jurisdiction — Universal jurisdiction — Piracy — Pirates apprehended by warship of one State but tried by courts of another — Whether any barrier to exercise of jurisdiction

Sea — High seas — Piracy — United Nations Convention on the Law of the Sea, 1982 (‘UNCLOS’), Article 105 — Whether UNCLOS conferring exclusive criminal jurisdiction on the flag State of the capturing warship — Universal jurisdiction of national courts not displaced — Matters to be considered in sentencing pirates

Terrorism — Treaties — Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 — Jurisdictional provisions — Jurisdiction over allegations of piracy

Human rights — Detention before charge — Piracy — European Convention on Human Rights, 1950, Article 5 — Application in high seas maritime law enforcement — Application when suspect transferred between jurisdictions — Violation of the right to be brought promptly before a judicial authority — Joint State responsibility — Whether violation sufficiently grave to be a bar to prosecution — European Convention on Human Rights, 1950, Article 6 — Application when suspect transferred between jurisdictions — No violation of the right to legal assistance — Legal assistance provided at the time of legal procedures requiring assistance — The law of the Netherlands

Summary: The facts:—On 2 January 2009, five Somali nationals (‘the defendants’) in a skiff in the Gulf of Aden allegedly attacked the MV Samanyolu, a vessel registered in the Netherlands Antilles, firing upon it with automatic weapons and a rocket launcher. The crew of the MV Samanyolu fired signal flares at the attacking vessel, causing it to catch fire. The defendants leapt overboard and were rescued by the Danish warship Absalon. The defendants were then held aboard the Absalon without formal arrest or charge. On 14 January 2009, the Danish authorities requested that the Netherlands take

the defendants for criminal investigation and prosecution. A Dutch police investigation, called ‘Cygnus’, was opened and the Netherlands issued an order for the defendants' arrest and transmitted a European Arrest Warrant to the Danish authorities. On 30 January 2009, the Danish authorities replied that Danish extradition law did not apply and Denmark wished to transfer the defendants into the custody of the Netherlands without an extradition process. The transfer went ahead on 10 February after Netherlands police had arrested the defendants on the orders of the Public Prosecutor. The defendants were then brought before an Investigating Magistrate on 11 February 2009. Lawyers were assigned to them.

At trial before the District Court of Rotterdam, the defendants were charged with piracy. The defendants contended that they had only acted in self-defence; that the Netherlands lacked jurisdiction over any offence; and that their prosecution should be barred due to human rights violations, notably the failure to bring them promptly before a judicial authority and to provide them with legal aid prior to their arrival in the Netherlands. They also contended that their sentencing for any crime of piracy would be arbitrary, or a violation of the principle of equal treatment, as many pirate suspects encountered by naval vessels patrolling the Gulf of Aden were disarmed and sent on their way without being charged.

Held:—The defendants' pleas were rejected. All five defendants were convicted of being the crew of a vessel intended for and used to commit acts of violence on the high seas against other vessels and any persons and/or property on board (i.e. piracy).

(1) The defendants had been witnessed attacking the Samanyolu by a helicopter from the Absalon before their vessel was fired upon by the crew of the Samanyolu. Accordingly, the plea of self-defence could not be sustained (pp. 505–6).

(2) The Netherlands had universal jurisdiction over piracy in accordance with the principles of international law reflected in the United Nations Convention on the Law of the Sea (‘UNCLOS’) and the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988. Although UNCLOS Article 105 referred only to the jurisdiction of the flag State of the arresting warship to prosecute a pirate, that did not create an exclusive jurisdiction barring the exercise of jurisdiction by other States, although in cases lacking a connection with Dutch interests a Dutch court might not be the appropriate forum for the exercise of such jurisdiction (pp. 494–5).

(3) There had been a violation of the defendants' rights under Article 5 of the European Convention on Human Rights (‘the ECHR’), because there were no exceptional circumstances justifying the forty days that it had taken to bring the defendants before a judicial authority. The Netherlands had become responsible for the defendants on 16 January, when it had agreed to Denmark's request to prosecute them. The violation was not, however, sufficient to justify barring prosecution (pp. 497–501).

(4) While the defendants were not offered legal aid before 11 February 2009, there were no criminal procedures initiated before this date requiring legal aid. There was thus no violation of the ECHR, Article 6 (pp. 501–2).

(5) While many suspected pirates encountered by naval vessels in the Gulf of Aden were released without charge, others had been prosecuted. It could not be concluded, therefore, that the prosecution of these defendants was arbitrary (p. 496).

The following is the text of the judgment of the Court:

Court Hearing

This judgment was rendered following the investigation during the Court hearings on 25 May 2010, 26 May 2010, 27 May 2010, 1 June 2010 and 3 June 2010.

Charge

The suspect was charged with the offence mentioned in the summons in the manner in which this has been amended during the Court hearing in accordance with the request of the Public Prosecutor. The text of the amended summons has been attached to this judgment as Enclosure I. This enclosure forms part of this judgment.

The charge, in summary, is that the suspect committed piracy in the Gulf of Aden as master and/or crew member, in a sole capacity or in association with others.

Demand of the Public Prosecutor

Public Prosecutor Baan (LIM) and Public Prosecutor Ferdinandusse (LIM) (hereafter: the Public Prosecutor) demanded:

• • acquittal of the part of the summons relating to participation in piracy as a master;

• • to find proved, the part of the summons relating to participation in piracy as crew member;

• • that the suspect be sentenced to a term of imprisonment of 7 years minus the time spent in pre-trial custody.

Admissibility of Prosecution

Jurisdiction

The question must be addressed whether the Netherlands has jurisdiction. A negative outcome should bar the Public Prosecutor from prosecution in this particular case.

Firstly, it must be noted that the legislature of the Netherlands has vested so-called universal jurisdiction for criminal proceedings in cases of piracy (Article 381 of the Criminal Code (further to be referred to as: Sr)).

Paragraph 4, opening lines and paragraph 5, in so far as is relevant here, stipulates that the Criminal Code of the Netherlands applies to anyone committing any of the criminal offences described in the Articles 381 up to and including Article 385 Sr outside of the Netherlands.

The issue must also be considered, notwithstanding this explicit legal basis for jurisdiction, whether regulations of international law would interfere with a prosecution of the suspect in the Netherlands. Article 94 of the Constitution of the Netherlands describes that regulations prescribed by law shall not apply if such application is not compatible with regulations of Conventions which have a universal binding force, or with decisions by international institutions. It must be noted here that, as is made clear in jurisprudence of the Hoge Raad (Supreme Court of the Netherlands) (see: Hoge Raad 18 September 2001, NJ 2002, 559, LJN AB1471 and Hoge Raad 8 July 2008, LJN BC7418), the Judge may not test the law of the Netherlands against any unwritten law, but solely against written international law.

In this case, with regard to this testing as described above, the following two Conventions are relevant, with the Netherlands being a party to these Conventions:

• • The Verdrag van de Verenigde Naties inzake het recht van de zee (United Nations Convention on the Law of the Sea), (further to be referred to as: UNCLOS) and

• • the Verdrag tot bestrijding van wederrechtelijke gedragingen gericht tegen de veiligheid van de zeevaart (Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation), (further to be referred to as: SUA).

UNCLOS

Article 105 UNCLOS stipulates—in summary, and in so far as is relevant here—that on the high seas any State may seize a pirate ship and arrest the persons on board, and that the judge in that State may decide upon the penalties to be imposed. This provision invests a universal jurisdiction in the State that carries out the arrest of the suspect of piracy. That this jurisdiction would be exclusive in the sense that this would prevent the execution of universal jurisdiction based on the national law of other States cannot be concluded from the text of the provision, nor is there any other clue that this would have been intended.

SUA

Article 6(1) and (2) SUA stipulate the cases in which States must or can establish jurisdiction for any punishable offences set forth in the Convention. Article 6(5) explicitly states that the Convention does not exclude any jurisdiction carried out in accordance with national law in criminal matters. This leads to the conclusion that the arrangement of universal jurisdiction of Article 4, opening lines and paragraph 5 Sr does not...