The Regional Court sentenced the accused to seven years' imprisonment for assault on maritime traffic, combined with extortionate kidnapping and particularly serious extortion. The defendant filed a revision based on violation of substantive law and requested reinstatement within the deadline for the reasons for the appeal. The request for restitution is successful. The appeal leads to a restriction of criminal prosecution according to § 154a(2) StPO (Criminal Procedure Code) as well as to the change of the guilty verdict and the confiscation order evident from the operative part. Otherwise it is unfounded within the meaning of § 349(2) StPO.

Held: At his request and at his own expense, the defendant will be granted reinstatement in the previous state against the failure of the deadline to justify the appeal against the judgment of the Regional Court of Zweibrücken on 22 October 2018. The decision of the Regional Court of 4 January 2019 is therefore irrelevant. For the appeal of the accused against the aforementioned judgment:

a) the proceedings are limited to the charge of attack on maritime traffic;

b) the guilty verdict is amended to the effect that the accused is guilty of the attack on maritime transport;

c) the ruling on the collection of the value of offences in the amount of EUR 78,756 is amended by a statement to the effect that the collection is ordered in respect of joint and several debtors.

The further revision is dismissed.

According to the findings, the defendant is a Somali national. He was a member of a group of pirates who boarded the Greek-flagged oil tanker MT S in international waters with assault rifles on May 10, 2012 and overpowered the Filipino, Romanian and Indian crew members. The pirates brought the ship off the coast of Somalia and held it there for about ten months. After the shipping company paid a ransom of USD 13 million, they released the ship and crew. The leader of the pirates divided the ransom among those involved. As a member of the assault team, the defendant received compensation of USD 100,000 (EUR 78,756). After the fact, he traveled to Germany and applied for asylum, where he was arrested.

The procedural restriction occurs because the applicability of the German criminal law to the offences of extortionate kidnapping and particularly serious extortion is doubtful and the conviction of the accused can be prevented by a procedural obstacle. The scope of § 6(3) StGB is limited according to its wording to attacks on air and sea traffic. This competence cannot be extended on the facts to offences of the same type because the necessary close link with the offence of the attack on maritime traffic does not exist (see BGH, judgment of 30 April 1999 - 3 StR 215/98, BGHSt 45, 64, 71; decision of May 17, 1991 - 2 StR 183/90, NJW 1991, 3104; judgment of January 22, 1986 - 3 StR 472/85, BGHSt 34, 1, 2 f).

The application of German criminal law cannot be based on § 6(9) StGB. The obligation to prosecute required under international law can be found in neither the United Nations Convention on the Law of the Sea of 10 December 1982 (UNCLOS) (Federal Law Gazette 1994 II p 1799) nor the Convention to Combat Unlawful Acts against the Safety of Shipping of 10 March 1988 (SUA Convention 1988) (Federal Law Gazette 1990 II p 496) (see LG Hamburg, judgment of 19 October 2012 - 603 KLs 17/10).

The Regional Court correctly assumed that the requirements of § 7(2)(2) StGB [Criminal Code] with regard to the defendant's home country are met. Apart from the fact that Somalia - as the Regional Court found - is a so-called 'failed State' because the judicial system there has collapsed, extradition to this State is not possible because there is no extradition agreement with this State (see RIVAST Appendix II - country section).

However, it has not yet been clarified whether extradition of the accused to another foreign State, namely the home States of the injured crew members and the shipping company, should have been considered. According to the principle of 'substitute criminal justice' contained in § 7(2)(2) StGB, German criminal law applies to the act of a foreigner abroad if the perpetrator affected in the Federal Republic would otherwise remain unpunished because foreign criminal justice cannot take effect. The principle follows from the interest that a foreign criminal, by entering the State that seizes him but cannot extradite him, does not escape fair prosecution (see BGH, decision of 24 July 1985 -2 StR 368/85, NStZ 1985, 545). This principle is only a subsidiary addition to the penal powers of other States (see BGH, decision of 12 July 2001 - 1 StR 171/01, NJW 2001, 3717, 3718). In the case of offences abroad, the German criminal authority should take the place of the foreign State called upon to prosecute it if it cannot or does not want to prosecute the offence (cf Scholten, NStZ 1994, 266, 268). However, it has not yet been clarified whether the accused could be extradited to the home country of an injured crew member who is called upon to prosecute the perpetrator due to the passive personality principle.

The procedural restriction results in an amendment to the guilty verdict. The review of the judgment on the basis of the justification on appeal did not reveal any legal errors to the detriment of the accused in the remainder of the judgment and conviction.

The sentence can remain despite the change in guilty verdict. The Regional Court based the sentence on the penalty framework of § 316c StGB. It did not take into account that the accused had committed several criminal offences during the act. The long detention time of the crew members and the payment of the high ransom could be considered as the culpable effects of the act within the meaning of § 46(2)(2) StGB. In view of these circumstances, this Court can safely rule out that the change in guilty verdict would have had any impact on the sentence.

However, the arrangement of the collection of the value of the proceeds of the crime must be supplemented by joint and several liability. The defendant and the pirate leader had joint disposal over the USD 100,000 (EUR 78,756) that the defendant received from the ransom money collected as compensation for the crime. Both are jointly and severally liable for this amount, which is expressly to be ordered in the judgment (see BGH, judgment of 4 October 2018 - 3 StR 251/18; decision of 2 April 2019 - 3 StR 24/19) .

The minor partial success of the appeal does not make it appear unreasonable to burden the accused with the costs of his legal remedy (cf § 473(4) StPO).