The Prosecutor v. V15

This case summary is being revised and will be updated soon

Court	District Court of Rotterdam, The Netherlands
Case number	10/960227-12 (ECLI:NL:RBROT:2014:119)
Decision title	Judgment
Decision date	10 January 2014
Parties	The Prosecutor V15
Categories	Piracy
Links	Judgment (in Dutch)

Summary

In October 2012 a group of Somali pirates boarded the Iranian dhow "Mohsen" and took the Iranian and Pakistani crewmembers hostage. They were noted by Dutch navy vessel HNLMS Rotterdam (part of NATO's Ocean Shield anti-piracy operation). When Navy marines approached the ship in inflatable boats (RHIBs) they came under fire from both the Mohsen and ashore. The Rotterdam responded, causing the Mohsen to catch fire, after which it sank. 25 people were rescued out of the water, while at least one pirate died during the exchange of fire.

Of the 25 rescued people, at least four were accused of piracy. They were put on separate trials in the Netherlands and charged with piracy and attempted murder and manslaughter.

In the current case, accused V15 was ultimately acquitted of the piracy and attempted murder and manslaughter charges due to a significant lack of evidence. However, since it was clear that armed violence against the Navy personnel had occurred and taking into consideration that V15 did carry a weapon and had cooperated with the shooters, he was found guilty of complicity in the use of (armed) violence against persons aboard a ship. Considering the grave nature of shooting at unprotected persons in inflatable boats an aggravating factor and weighing this against the harsh living conditions in Somalia and the dire personal situation of V15, the Court sentenced the accused to two years' imprisonment.

Procedural history

The pirates were taken into custody on 24 October 2012, and from 24 to 30 October the pirates as well as the rescued crewmembers of the Mohsen were interviewed aboard the HNLMS Rotterdam, either as witness or as suspect. During 2013 numerous interviews and hearings have taken place in the Netherlands (pp. 5-6).

In December 2013 the final hearings took place, and on 10 January 2014 the Court issued the current judgment.

Legally relevant facts

In October 2012 a group of Somali pirates boarded the Iranian dhow "Mohsen" and took the Iranian and Pakistani crewmembers hostage. On 24 October 2012 Dutch navy vessel HNLMS Rotterdam conducting a routine patrol under the NATO-led anti-piracy operation Ocean Shield, noted the Mohsen. Navy marines decided to inspect the ship and approached it in so-called Rigid Hull Inflatable Boats; when close to the Mohsen, they came under fire from the pirates' ship and from ashore as well. The Rotterdam responded, which caused the Mohsen to catch fire, and eventually the vessel sank. The Navy managed to rescue 25 people out of the water, including a number of pirates. At least one pirate died during the exchange of fire.

Of the 25 rescued people, at least four were identified as (alleged) pirates: V15, the current accused, as well as V14, V17 and V18. The other persons were interviewed as witnesses. The accused were charged with piracy and attempted murder and manslaughter under Dutch law, each in a separate case.

V15 pleaded not guilty and argued that his fair trial rights had been violated, e.g. by not providing him with sufficient possibilities to exercise his right to examine witnesses.

Core legal questions

Would admission of certain evidence violate the accused's right to a fair trial?
Is the accused guilty of piracy?
Is the accused guilty of attempted murder or manslaughter?

Specific legal rules and provisions

Articles 381 and 385b of the Dutch Criminal Code (piracy and use of violence aboard ship or airplane).
Articles 287 and 288 of the Dutch Criminal Code (manslaughter).
Article 289 of the Dutch Criminal Code (murder).
Article 6 ECHR (fair trial).

Court's holding and analysis

Before deciding on whether the accused was guilty or not, the Court had to assess the admissibility of certain evidence. Firstly, the Court acknowledged that mistakes had been made during pretrial investigations - e.g. certain interrogations (aboard the HNLMS Rotterdam) had not been recorded on tape - but these were of such small scale that the accused was not harmed in his defence, and the defence had failed to prove otherwise. Regarding the accused not being able to hear certain witnesses (G01-G05 and G16), the Court found that he had been able to hear and examine G01 and G02. Furthermore, while the accused had indeed not been able to hear the witnesses G03-G05 and G16, this does not immediately lead to exclusion of their statements from evidence; their statements can still be used if and insofar they are adequately supported by additional evidence. However, regarding the statements of G01 and G02 the Court found that their probative value - due to the fact that some interviews were conducted over satellite-telephone, which made it highly difficult for translators/interpreters to hear and understand what was being said; additionally, because many interviews had taken place in the days immediately after the incident, G02 declared multiple times that he could not focus since both his brothers (crew members of the Mohsen) had been injured) - was limited. Their statements could only be used if and insofar adequately supported by additional evidence.

Bearing this in mind, the Court came to the following conclusion. It is unclear where the Mohsen was hijacked and when the accused had boarded the ship; moreover, his role in the hijacking of the Mohsen and his relation to the (unknown and unnamed) pirate ship used to board the Mohsen are unclear. Therefore he was acquitted of the piracy charges. For the same reasons he was acquitted of the murder and manslaughter charges. Nevertheless, taking into account the facts that there had been intentional shooting at the Navy personnel and that the accused was carrying a weapon, knew that the Mohsen had been hijacked, and had knowingly and actively cooperated with the shooters, the Court found that the accused had put himself in a situation where the actual (unlawful) use of the weapon against persons was a substantial risk (p. 12).

The accused was found guilty of complicity in the intentional use of violence against persons aboard a ship, and - taking into consideration the extremely harsh conditions of living in Somalia, the dire personal situation of the accused, but also considering the grave nature of using armed violence against unprotected persons in a small boat ("sitting ducks", p. 14)) - sentenced him to two years' imprisonment.