“The appellant is not right’. This forceful statement was made by Manuel Marchena, president of the Second Criminal Chamber of the Supreme Court and rapporteur of the sentence which has confirmed 16 year and a half imprisonment for six Somali citizens who in October 2012 pestered and fired at the tuna vessel Izurdia (from the Bay of Biscay) off the coast of Somalia.The appellant was the legal representation of Adawe Yusuf Ali, Abdi Ali Salad, Abdilahi Ise Jame, Yahye Omar Ali Hasan, Ali Mahamed Ali and Ali Mahamed Hirse. The six men, along with a minor unaffected by the process, were part of “an assault group or pirate action group organized with materials and elements for boarding and hijacking commercial ships sailing in the Indian Ocean, forming part of an organization.
This organization was based in Harardhere, “engaged in obtaining illegal profits after assaulting, boarding and hijacking ships in the Horn of Africa”, as considered proven by the National Court which convicted the six Somali men for piracy, resistance to arrest and belonging to a criminal group.
According to the defense of the Somali men, the judges misapplied the article of the penal code that criminalizes piracy, since it requires “unfailingly that the ship or aircraft is withdrawn from the possession of their legitimate owners or, at least, making it unfit for the task that it was destined to.” And as the six Somali men failed to seize the ship, and considering that the tuna vessel was not hit or damaged by the shots made, the attack is considered a mere attempt.
But the Supreme Court does not understand it this way. It believes that the crime of piracy does not require effective boarding. This crime may be committed in different ways and if one of them would require the destruction, damage or seizure of a ship, in a second it would be enough “the attack on the people, cargo or property found on board those vessels.”
And in the case of Izurdia it is proven that the accused men harassed and attacked the tuna ship, “there was a seriously intimidating violent action against the people who made up the crew of the tuna vessel, which makes it impossible to consider it an attempted crime,” the judgment of the Supreme Court reads.
Another error those appealing the judgment of the Court pinpoint is that it is not established that the defendants were part of a criminal organization, thus questioning as evidence the SIM cards of the intervened phones, which have registered various money transfers, discussions with the preparations for the landlocked and telephone connections with other leaders in Harardhere. However, the Supreme Court notes that it can not question what is left or not accredited at the hearing in the High Court and it can only be limited to proven facts. And they fit perfectly into the description of criminal group: “Group consisting of more than two people in a stable or indefinitely way, who concerted and coordinated deliver various tasks or functions in order to commit crimes as well as to carry out the repeated commission of offenses.” The Supreme Court assumes the argument of the Hearing that “it is not sensible that the people that have today been accused without other means that those being carried were able by themselves to complete the entire operation” as taking the boat ashore. They needed an organization. That is why they have been convicted.