The transfer to Spain of the arrested pirates requested by a court

(BRUSSELS2) A magistrate from the public prosecutor's office of the Audiencia nacional (the court specializing in major criminal cases) has requested the provisional detention of the two pirates arrested on Sunday by the Spanish frigate Canarias off the coast of Somalia (read about the arrest). She also requested the immediate transfer to Spain for the fact of illegal detention, theft with violence and the use of weapons. The judge of the Audienca nacional, Balthazar Garzon - famous for his positions on terrorism and who was on duty on Sunday - opened legal proceedings for the crime of kidnapping and acts of terrorism in the context of an act of piracy. The judge must be kept informed of the various developments in the case.

A precedent...failed. Spanish justice had already tried to obtain the repatriation of pirates arrested by a Spanish frigate last May. Without success. The pirates had finally been delivered to Kenya (read:The 13 pirates detained by the Spanish Navy handed over to Kenya). Today the situation seems different according to Judge Andreu quoted by El Mundo : the incident involves a boat and Spanish sailors, it occurred outside the Atalanta zone - and the transfer agreement with Kenya is therefore not applicable. I have some doubts about this explanation.

Different situation? If Judge Andreu's first argument - Spaniards are primarily concerned - is entirely justifiable and justifies referral to the Spanish courts; on the other hand, the argument of "outside the Atalanta zone" does not seem very adequate, according to a quick analysis. On the one hand, if the information given publicly is correct, the boat was located in the area covered by Atalanta (which has been extended to the Seychelles). Then the suspect transfer agreement is never binding. The principle is that it is first of all the State which seized the pirates which decides whether to seize or not, then to examine whether another State "victim" (State of the flag, of origin of the hostages or victims ) or the State of origin of the suspects or even another State wants to prosecute. It is only as a last resort that the agreement signed with Kenya comes into play. And, unless the suspects are Kenyan, it does not claim (on the contrary! its prisons are full and justice is saturated) to receive pirates.