Nord Stream gas pipeline sabotage, no to extradition of former Ukrainian official

The Court of Appeal's go-ahead for the extradition to Germany for the former Ukrainian official seriously suspected of taking part in the sabotage of the Nord Stream 1 and Nord Stream 2 pipelines. Baltic Sea facilities northeast and southeast of Bornholm Island (Denmark), which were detonated with time-detonators after the installation of devices, was cancelled with a delay.

The Court of Cassation filed its grounds, in which it upheld the defence's arguments and stopped the execution of the European Arrest Warrant. For the Supreme Court, the Court of Appeal made an error in the legal qualification of the facts, qualifying them as terrorism, when the charge brought by the requesting country was sabotage in violation of the Constitution. By virtue of the requalification of the crime, the territorial judges violated the right of defence of the suspect, who was not able to participate in the hearing in camera, but only by videoconference, a modality not provided for the crime charged by the authorities of the Federal Republic of Germany.

Moreover, the Court of Appeal did not assess, and it will have to do so on appeal, whether the functional immunity that is triggered in the case of sabotage attributable to acts of war is applicable to the suspect. The Court of Appeal denied the violation of the ne bis in idemEuropean principle, rejecting the defence's request to obtain documentation from the Danish authorities on the closure of the proceedings against the suspect "observing that the request was based on press reports, even authoritative ones, which showed that Denmark - wrote the judges - had rejected the request to proceed for the facts connected to the

The action, for which the surrender of the former Ukrainian officer, who was born in the Russian Federation, was requested, 'was aimed at preventing the supply of gas from Russia to Germany, because the gas pipelines reached the filling stations of Lubmin, which was supplied in this way for about half of its annual needs'. For the defence, it was therefore not an act of terrorism, because it was not aimed at civilian victims, but a military target, to be hit on the precise order of a state at war, in which martial law was in force. The plaintiff's lawyer recalled that functional immunity of perpetrators of acts of war is among the fundamental principles of the Constitutional Charter.

The Supreme Court therefore annulled the decision with reference, inviting the Court of Appeal to consider specific aspects: "The defence promptly objected to the nullity of the hearing in chambers, which was held in violation of the surrendering person's right to assistance and intervention," reads the judgement, "a violation that is preliminary and, therefore, essential for the purposes of examining the further grounds of appeal, both in relation to linguistic assistance and access to the documents of the surrender proceedings, and in relation to the further defence deductions concerning the relevance of the question of the violation of bis in idem, the alleged functional immunity concerning the performance of an "act of war", carried out iure imperii against a legitimate target and, finally, the risk of being subjected to inhuman and degrading treatment in the event of surrender.