Two suspected pirates detained by German naval forces in a mission off the coast of Somalia on March 3, who were later turned over to Kenyan officials for prosecution, are now suing the government in Berlin for a fair trial.
Attorneys for the men filed a suit on Tuesday demanding that the German government pay for the men's defense and provide support to a group of suspected pirates currently being held in the Shimo La Tewa prison in Mombasa.
In two separate cases filed in two Berlin courts, lawyers representing the defendants are arguing that the German government is responsible for ensuring that the men receive a fair trial. After their capture by German armed forces, the two suspected pirates were handed over to Kenya for prosecution. The lawyers are also demanding they be provided with support from the German embassy in Kenya for two of the nine suspects in custody.
The two detainees belong to a group of nine suspected pirates who attempted to hijack the MV Courier cargo ship, which is operated by a Hamburg-based shipping company that flies under the flags of Antigua and Barbuda and has a mostly Filipino crew. As they were intercepted by a German navy frigate on March 3, the men allegedly fired at the ship using Kalashnikovs and a rocket propelled grenade. After a chase, the men were captured and turned over to Kenyan authorities.
The Kenyans were given jurisdiction for prosecuting the men as the result of a hastily negotiated treaty between Kenya and the European Union. The countries involved in the Atalanta anti-piracy mission knew the arrests could lead to very complicated legal procedures in Europe because of murky jurisdiction in cases that occur in international waters, so they convinced the Kenyans to take responsibility for suspects. In exchange, the EU agreed to give the Kenyans speed boats, helicopters and two modern fire trucks.
But it's precisely that agreement that prompted this week's lawsuit. The EU-Kenya deal stipulates that Nairobi guarantee the proceedings agains the suspects "observe the right to a fair trial." Concretely, the deal also stipulates that suspects have the right to an attorney. If they can't afford this on their own, they are to be provided with a lawyer "free of charge." The problem though, the suspect pirates' attorneys argue, is that this isn't automatically guaranteed by the Kenyan legal system. Germany, they claim, must step in and make sure that this happens.
The lawyers claim that during a recent visit to Kenya, they were provided with only minimal support by the German embassy and that Kenyan authorities refused to provide them with access to their clients or court documents pertaining to the case.
Attorney Schulz said the prisoners were the German government's responsibility, even if Kenya has taken custody of them. "An unfair trial in Kenya would spoil promises made by the German government that rule of law would be adhered to," he said.
The German Foreign Ministry has declined to comment on the suits. However, a diplomatic source within the ministry said there was concern about the case. "By creating a distraction with their show to try to get famous," the diplomat said, "these lawyers are endangering an orderly trial." The source also indicated the suspects would be represented by a Kenya-based defense lawyer. The source said there wasn't much more that Germany could do and that the cases in the Berlin courts had little chance of succeeding.
The first major trial of pirates captured by Europeans could create significant problems for the German Foreign Ministry. Kenyan justice officials are already criticizing the fact that German naval officials sank all of the suspected pirates weapons after capturing them, meaning that key evidence is now missing. It's also unclear whether all of the men were pirates. Several are claiming they were only on board the pirate vessel so that they could hitch a ride to Yemen.
Politically, the trial will also be closely observed. "It's going to be a litmus test for the entire anti-piracy operation," said lawyer Schulz. Jürgen Trittin, Germany's former environment minister and a senior politician with the Green Party, has said he will travel to Mombasa to attend the trial and report back to the German parliament about it. The politician has said that if Kenya is unable to provide a clean trial that adheres to rule of law, that it would endanger the deal with the country.
The commotion over the case, one diplomat with the German Foreign Ministry said, could considerably dampen Kenya's willingness to detain and prosecute pirate suspects.