The Prosecutor v. V01

This case summary is being revised and will be updated soon

Court	Court of Appeal of The Hague, The Netherlands
Case number	22-004920-12 (ECLI:NL:GHDHA:2014:1006)
Decision title	Appeals Judgment
Decision date	21 March 2014
Parties	The Prosecutor V01
Categories	Piracy
Keywords	NATO, Operation Ocean Shield, piracy, Somalia
Links	Appeal Judgment (in Dutch)

Summary

The current judgment is one out of nine in a piracy case before the Dutch courts. By the end of 2010, a number of Somali men in a skiff took over the Iranian dhow 'Feddah' somewhere near the Gulf of Aden, in order to use it as base of operations to further hijack bigger ships at open sea. Unfortunately for them, Dutch Navy vessel HMS Tromp was in the neighbourhood as part of NATO's anti-piracy operation Ocean Shield. When Navy marines approached the apparently suspicious Feddah in two inflatable boats, several pirates started firing their machine guns and RPG's at them. An exchange of fire ensued, killing two pirates and injuring another six. In total, sixteen were captured, of whom seven were released soon after. Nine others, including V01, were prosecuted for piracy (in the form of sea robbery) and unlawfully attacking Navy personnel.

In first instance, V01 and the other suspects were acquitted from the charges of attemped murder/manslaughter of Navy personnel, since it could not be established who had shot, while it had become clear that certain suspects had intentionally refrained from shooting as they wanted no trouble with the Navy. However, by intentionally and knowingly cooperating to take over the Feddah and aiming to use it to hijack other ships, the suspects had indeed committed acts of piracy and were sentenced to four years and six months' imprisonment.

The judgment and sentence were confirmed in appeal. However, the Court of Appeal emphasised the extraordinary nature of anti-piracy operations: because of their inherently military nature, certain irreparable formal defects were given no (substantial) consequences in the current case, where the outcome may have been different in a 'regular' case.

Procedural history

On 12 October 2012, the District Court of Rotterdam convicted V01 for complicity in piracy - by intentionally performing acts of violence, including shooting with automatic rifles and rocket-propelled grenades (RPG's), against Iranian dhow Feddah, its crew and its cargo - and sentenced him to four years and six months' imprisonment (in Dutch). That day eight of V01's fellow pirates were convicted as well, and received equal prison sentences.

Seven convicted pirates - including V01 - appealed against the judgment. The prosecutor appealed too, finding the sentences too low as compared to his proposed ten years.

Related developments

While all nine appellants were tried in separate cases, their (and the prosecutor's) complaints were identical and so were their convictions. Only one of the other judgments has been published (The Prosecutor v. V02, in Dutch only).

Legally relevant facts

Between 10 December 2010 and 1 April 2011, in or around the Gulf of Aden, Iranian dhow 'Feddah' was approached by another vessel. The latter vessel's crew shot automatic rifles and rocket-propelled grenades at the Feddah, and ultimately boarded the ship, took hostage of the crew, and took over the Feddah.

When Dutch navy vessel HMS Tromp - as part of NATO's operation Ocean Shield - approached the Feddah, the Feddah appeared suspicious and RHIBs (Rigid Hull Inflatable Boats) were deployed to take a closer look. When the navy marines came closer to the Feddah, its "new" crew started to shoot at them. In the ensuing exchange of fire two of the attackers were killed and six were wounded. A total of sixteen persons were taken into custody on 2 April 2011. Ten of them were eventually accused of piracy and robbery at sea, interrogated aboard the HMS Tromp and eventually put on trial (before the Distrct Court of Rotterdam) when the ship arrived in the Netherlands. V01 was alleged to be the captain of the pirates.

Core legal questions

The defence issued multiple grounds of appeal against the trial judgment. These come down to the following: the prosecution should have been declared inadmissible due to grave and irreparable violations of due process principles (para. 8.1), including that the Feddah was unlawfully approached, the accused was unlawfully detained, the interrogations aboard the HMS Tromp were not in conformity with the law and violated the accused's fair trial rights, and the prosecution has, by giving priority and prevalence to interests of the Dutch Navy/(ministry of) Defence, unduly neglected the rights of the accused.

The prosecution appealed against the acquittal for attempted murder of Navy personnel.

Specific legal rules and provisions

Articles 381 and 385a 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).
Articles 5 and 6 ECHR (right to freedom and to fair trial).
Articles 105 and 110 UNCLOS (piracy).
UN Security Council Resolutions 1814, 1816, 1838, 1846, 1851, 1897 and 1950.
The Transitional Federal Government of Somalia's authorisation of Dutch naval anti-piracy operations in Somalia's water.

Court's holding and analysis

In a primary consideration the court empahsised the underlying issue of the current case, namely, the cooperation between the military and the prosecution in piracy cases and the inherent conflicts between their respective interests. While anti-piracy operations like the EU's Atalanta and NATO's Ocean Shield are primarily military operations, they may involve the arrest and trial of suspected pirates; but the interests of due criminal proceedings are to be considered in the light of the primary military nature of the operations. This means that formal defects during proceedings do not necessitate the prosecution to be found inadmissible. This will normally only happen if the prosecuting authorities have gravely violated due process principles to intentionally or negligently prejudice the suspect's right to a fair trial. Less fragrant defects may be remedied by exclusion of certain evidence (para. 8.4).

In the light of these considerations, the court went on to deal with accused's grounds of appeal. Firstly, it was noted that the Dutch Navy was not acting on its own but in the context of NATO operation Ocean Shield. Furthermore, based on Articles 105 and 110 UNCLOS (regarding piracy in international waters) and on multiple Security Council Resolutions (regarding piracy in Somalian water), the HMS Tromp was authorised to approach the Feddah (para. 8.4.1.3). These articles also authorise the capture of suspected pirates (para. 8.4.2.3) and seizure of their properties including weaponry, ammunition, mobile phones and a skiff (para. 8.4.3.3).

The interrogation/hearing of several suspects - both aboard the HMS Tromp and, later on, in the Netherlands - was not aurally or audiovisually recorded; this, the court found, was indeed an irreparable formal defect, but since there was no wilful intent or negligence on the side of the prosecution, there was no need to exclude the outcome of the interrogations from evidence. They would, however, be considered carefully and with regard to other evidence (para. 8.4.4.3). The same goes for the fact that the first interrogations aboard the HMS Tromp were executed by a military (ISTAR: Intelligence, Surveillance, Target Acquisition & Reconnaissance) officer. Here the court also gave importance to the inherent military nature of the operation (indeed, there was no prosecutor on board) and the possibility of the defence counsel to hear the ISTAR officer. With regard to any suspect's right to legal counsel from the first police interrogations onwards, the court noted that from 6 April onwards, when the suspects arrived in the Netherlands - when the extensive, contentious interrogations took place - they were provided with legal counsel. This, together with the extraordinary circumstances under which they were captured - at sea - made up for the (arguably inevitable) initial lack of legal assistance aboard the HMS Tromp (para. 8.4.6.3). Furthermore, the court rejected the defence's argument that the dismissal of seven of the sixteen Somalis found aboard the Feddah (or rather, the fact that the other nine were not dismissed) formed a violation of the principle of equality and prohibition of arbitrariness. In principle, it is up to the prosecution to decide whether or not to prosecute an individual, and in the current case the court could not find any reason to assume the prosecution had acted arbitrarily (para. 8.4.7) or in violation of the equality of arms principle (para. 8.4.8). With regard to the military aspects of the case, the court ruled that the military personnel had acted within their mandate and that, despite the NATO Rules of Engagement falling under state sectrets, the defence had had enough opportunities to hear Navy personnel about their actions (para. 8.4.9.3). And finally, with regard to the inability of the ministries of Justice and Foreign Affairs to track certain witnesses as requested by the defence, it was noted that this inability could not be attributed to the Dutch authorities (para. 8.4.10.3).

As such, the court agreed with the first instance court that the prosecution was, indeed, admissible. It agreed with the first instance conviction as well: while it could not be established who had shot at the navy personnel aboard the RHIBs (as required to establish intent for murder or wilful negligence for manslaughter) - leading to the acquittal of all suspects from the attempted murder/manslaughter charges - it found that V01 had, together with his fellow suspects, intentionally and jointly, taken part in the taking over of the Feddah and that they had aimed to use it to hijack other ships. V01 was therefore sentenced to four years and six months' imprisonment.

Instruments cited

Dutch Code of Criminal Procedure, 15 January 1921 (in Dutch only).
European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, 213 UNTS 222, 4 November 1950.
UN Convention on the Law of the Sea (UNCLOS),Montego Bay, Jamaica, 10 December 1982, entry into force 16 November 1994.
UN Security Council Resolutions:
- 1814 (2008) [on the relocation of the UN Political Office for Somalia (UNPOS) from Nairobi to Somalia], S/RES/1814(2008), 15 May 2008;
- 1816 (2008) [on acts of piracy and armed robbery against vessels in territorial waters and the high seas off the coast of Somalia], S/RES/1816(2008), 2 June 2008;
- 1838 (2008) [on acts of piracy and armed robbery against vessels in territorial waters and the high seas off the coast of Somalia], S/RES/1838(2008), 7 October 2008;
- 1846 (2008) [on repressing acts of piracy and armed robbery at sea off the coast of Somalia], S/RES/1846 (2008), 2 December 2008;
- 1851 (2008) [on fight against piracy and armed robbery at sea off the coast of Somalia], S/RES/1851 (2008), 16 December 2008;
- 1897 (2009) [on acts of piracy and armed robbery against vessels in the waters off the coast of Somalia], S/RES/1897 (2009), 30 November 2009;
- 1950 (2010) [on acts of piracy and armed robbery against vessels in the waters off the coast of Somalia], S/RES/1950(2010), 23 November 2010.

Related cases

For another piracy case before the courts of the Netherlands (the accused of which happened to be captured two weeks after the first instance judgment of the current case) see The Prosecutor v. V15, District Court of Rotterdam (The Netherlands), of 10 January 2014.