A German federal court last week rejected Serhiy K.'s request for immunity. K. is accused of participating in the sabotage that blew up the Nord Stream gas pipeline in September 2022. He was arrested in Italy and extradited to Germany late last year.
The defendant's lawyer argues that, even if the charges are true, under international law his Ukrainian client was acting as a soldier attacking enemy infrastructure. But the court refused to grant him immunity.
The Nord Stream 1 and 2 gas pipelines, which directly connected Russia and Germany, were controversial from the start due to their energy dependence on Moscow. They came under even greater scrutiny after Russia's invasion of Ukraine began in February 2022.
The act of sabotage forced Germany to make serious efforts to secure sufficient gas, and heating prices rose sharply. It was for this reason, according to the highest criminal court, that the gas pipeline was “civilian infrastructure,” and the Ukrainian defendant’s claim was rejected.
Moreover, the court stated that international law “does not cover covert actions,” in which there is no evidence — for example, the wearing of a military uniform or written direct orders — that the saboteurs were acting on behalf of state actors.
Therefore, K. will still be tried for "undermining the internal security" of Germany and violating German sovereignty, and an investigation could also be conducted for war crimes due to attacks on civilian infrastructure, the court said in a statement.
Ukrainian operation or Russian one?
There was speculation in the media about whether K. and his alleged accomplices were acting directly or indirectly on behalf of the government in Kiev, or whether the attack on the gas pipeline was another attempt by Moscow to cause confusion.
Both suspects so far, however, are Ukrainian citizens who claim to have acted on behalf of their country. The pipelines have been a problem for Kiev's relations with its European allies, symbolizing its continued energy dependence on Moscow.
At the same time, Russia would gain from sabotage by creating mistrust between Ukraine and its allies, as well as relief from several international lawsuits related to the Nord Stream gas pipeline.
Jens Ferner, a German criminal lawyer who has written about the case, told DW that this is precisely the danger. It could be proven, he suggests, that the suspects were indeed saboteurs, but a conviction could be reached if it is not properly established who gave the order.
For now, the Federal Court states that it “assumes that the action was initiated by the Ukrainian state authorities.”
However, Ferner warns that without access to intelligence and independent investigations, the German justice system is not fully prepared to assess where the warrant came from — which could undermine public trust in the court.
"Not only are the opportunities for gaining insight limited, but the court cannot conclusively confirm the investigator's narrative, nor can the defense refute it," the lawyer says.
"This scenario is now affecting a population already deeply disturbed by disinformation campaigns and unsure of what else to believe," Ferner adds.
Poland does not extradite second suspect
Volodymyr Z, also a Ukrainian citizen, was arrested last year in his apartment near Warsaw, but Polish authorities have so far refused to extradite him, despite an international arrest warrant issued by Germany.
Citing “insufficient information,” a Polish court blocked the suspect’s extradition at a hearing in October, with Polish Prime Minister Donald Tusk declaring at the time: “The case is closed.”
Commentators in both Germany and Poland have suggested that Warsaw has political motives for this outcome, having long been tougher on Russia and seen Berlin as too lenient. Poland has been critical of the Nord Stream pipeline for years. Tusk even said that it was “not in Poland’s interest” to extradite Z.
Furthermore, according to Ferner, the Polish judiciary did not conduct the appropriate legal procedures. Such a decision was not intended to be final, but should have been followed by a request for additional information, which the Polish authorities did not do.
So far, Germany has not appealed to higher EU bodies to have Z. extradited, although it has the right to do so. Foreign Minister Johan Vadeful said that Berlin would respect the Polish court's decision and would not interfere in the legal sovereignty of another country.
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