The Prosecutor v. T21

Court	Criminal Division of the Court of Appeal of the Hague, The Netherlands
Case number	BY6940 (22‐004017‐11)
Decision title	Appeals Judgment
Decision date	20 December 2012
Parties	The Accused (T21) Public Prosecutor
Other names	‘Choizil’ case
Categories	Piracy
Keywords	kidnapping, piracy, principle of equality, right to a fair trial
Links	Appeals judgment Appeals judgment (original, in Dutch)

Summary

On 26 October 2010, a group of 20 Somalians, armed with machine guns and bazookas, violently attacked a yacht off the Seychelles. They hijacked the South African yacht ‘Choizil’ off the Tanzanian coast after it had left Dar es Salaam en route for South Africa. Because the South African authorities refused to prosecute the captured Somalians, five men who were members of the group were arrested and transferred to the Netherlands in order to be prosecuted.

On 12 August 2011, the Court of First Instance of Rotterdam convicted the five men for piracy and sentenced them for a period between four-and-a-half and seven years. The decision was appealed by the defendants to the Court of Appeal of the Hague.

One of the appellants was T21. On 20 December 2012, the Court of Appeal found that though the accused had not been able to call certain witnesses (namely, other suspects who had been captured together with T21 but were released afterwards), this did not violate his fair trial rights; T21 had been given sufficient means for his defence and the equality-of-arms-principle was found to have been ensured.

The Court of Appeal found the accused guilty for his intentional participation in a group that intended to hijack ships and use them for unlawful purposes and in unlawful ways. The Court further found that the accused had threatened persons on board of the Choizil with force, but, contrary to the Court of First Instance, it was not convinced that he had actually fired any weapon himself. Therefore, the Court of Appeal set aside the decision of the Court of First Instance and replaced it with a new decision on the facts that were proven. The sentence was reduced from six to five years' imprisonment (with credit for time on remand).

The case was the first time a criminal case, in which Somali pirates stood trial, was heard in appeal in the Netherlands.

Procedural history

On 24 November 2010, seven crew members of a ship, inter alia T21, were arrested on suspicion of piracy. On 16 May 2011 and on 12 July 2011, the indictment was changed. On 12 August 2011, the Court of First Instance of Rotterdam issued its decision. T21 was convicted for piracy and was sentenced to six years' imprisonment.

On 24 August 2011, the Public Prosecutor appealed the decision.

8 August 2012 and on 8 October 2012, the Defence counsel applied to the Court of Appeal for a declaration of voidness with respect to the examination in the court of first instance and requested the Court of Appeal to refer the case back to the Court of First Instance. The Court of Appeal rejected the application of the Defence Counsel.

Related developments

The five piracy suspects, among which T21, were part of a group of 20 heavily armed Somalians who were intercepted by the Dutch Navy in November 2010. Because the South African authorities refused to prosecute them, these five were arrested and transferred to the Netherlands in order to be prosecuted.

All five pirates were charged with, among others, involvement in the hijacking of the South African sailing yacht “Choizil”. During this hijacking several pirates were able to escape and two persons who were aboard the ship, Bruno Pelizzari and Debbie Calitz, were taken hostage. They were held for 18 months until they were released.

The Court of First Instance convicted three men of piracy (including T21) and two of hijacking, sentencing them to prison terms ranging from four-and-a-half to seven years. Two of the piracy convictions were published (in Dutch, see here and here. It seemed that there was insufficient evidence available against the other fifteen suspects. In its judgement the court took notion of the harsh circumstances in Somalia, such as armed conflicts and famine. Nonetheless, Judge Jacco Janssen concluded that these circumstances could not be accepted as a justification for committing acts of piracy. Even more so, because of the extreme violence that pirates often use in order to collected ransom moneys.

The legal jurisdiction of the court was not challenged by the defendants. The court already confirmed legal jurisdiction with respect to Somali pirates in a previous judgment (more information on this judgment can be found in this press release).

Next to T21, the other four pirates appealed their convictions as well, and the Court of Appeals issued all five judgments on 20 December 2012. The four judgments of T21's co-suspects are available only in Dutch:

T06 (Case No. 22-004046-11);
T09 (Case No. 22-004015-11);
T14 (Case No. 22-004016-11); and
T17 (Case No. 22-004047-11).

Legally relevant facts

The accused was part of a group involved in the hijacking of the South African sailing yacht ‘Choizil’. The accused was arrested in the Gulf of Aden by a Dutch naval vessel in November 2010.

Core legal questions

Was there sufficient suspicion to arrest the suspect? (p. 8)
Does the decision to prosecute the Accused, whereas other suspects were discharged or released from custody, constitute a violation of the principle of equality? (p. 11)
Was the accused’s fair trial rights violated? (p. 12)

Specific legal rules and provisions

Articles 105 (Power to take action against piracy) and 100 (Obligation of State Parties to corroborate in order to suppress piracy) of the Third United Nations Convention on the Law of the Sea.

Court's holding and analysis

The Court of Appeal held that ‘it has been sufficiently well established that on 23 November 2010 there was a suspicion of involvement in piracy with regard to the Accused to… proceed with the interception of the skiff and the subsequent arrests of the seven crew members on board the skiff’ (p. 9).

In respect of the violation of the principle of equity raised by the Defence Counsel, the Court of Appeal stated that a violation can be established only ‘when there is a deviation from a consistent pattern of decisions in a large number of comparable cases’ (p. 11). In addition, the Court of Appeal held that in order to find a violation, the decision of the Public Prosecutor to prosecute must be unreasonable and arbitrary. The Court of Appeal held that neither condition has been met in the particular case (p. 12).

The Court of Appeal further found no violation of the accused’s fair trial rights on two grounds. Firstly, the Public Prosecutor’s decisions had taken into account the principle of expediency and viability. Secondly, the Defence Counsel had not submitted any request to have the witnesses examined until the appeal proceedings (p. 13).

In respect of the intent of the accused, the Court of Appeal stated that he ‘must have known that he was serving or continued to serve on a ship that – together with other ships ‐ was intended for or was used for the commission of violent acts against other vessels and the persons or property on board these vessels’ (p. 22).

Conclusively, the Court of Appeal held that it is ‘established beyond reasonable doubt that the Accused belonged to a group of persons who intended to hijack ships in the open seas together’ and that he was ‘aware of the fact that the vessel he entered into service on and served on, was intended for the commission of acts of violence’ - but not that the accused had actually fired any weapon himself (p. 24).

The Court of Appeal set aside the decision of the Court of First Instance, issued a new conviction and reduced the sentence from six to five years (p. 29).

Further analysis

S.J. Hansen, ‘The Dynamics of Somali Piracy’, Studies of Conflict and Terrorism, 2012, Vol. 35 (7-8), pp. 523-530;
M. Schoeman & B. Haefele, ‘Organised crime at sea : lessons learned from the Choizil hijacking’, Acta Criminologica, Vol. 25(2), pp. 25-36.