Germany's highest criminal court, the BGH, last week rejected a claim by Serhii K.* that he should enjoy "combatant privilege" in the case against him. K. is accused of being part of a conspiracy to charter a private yacht, dive down to the depths of the Baltic Sea and blow up a section of gas pipeline in September 2022. He then made his way to Italy, where he was caught and extradited to Germany late last year.

K.'s lawyer had argued that under international law, his Ukrainian client was acting as a soldier attacking enemy infrastructure. The Nord Stream 1 and 2 pipelines were controversial from the outset. Delivering natural gas from Russia to Europe via Germany, they were heavily criticized for increasing European reliance on Moscow for its energy. They came under even more scrutiny after the Russian invasion of Ukraine began in February 2022.

The act of sabotage sent Germany scrambling to secure enough fuel to keep the country warm for the winter, and sent heating prices skyrocketing across the country. It's for this reason that the pipeline was "civilian infrastructure," according to the BGH, that K.'s appeal was rejected.

Moreover, the court wrote, the international law in question "does not cover covert action," where there is no proof, via military uniform or written direct orders, for example, that the saboteurs were working on behalf of state actors

Therefore, K. will still be tried for "violating the internal security of the federal republic of Germany," and flouting German sovereignty, and may even be investigated for committing a war crime for attacking civilian equipment, the BGH wrote in a statement.

Ukrainian operation or Russian false flag?

There has been speculation in the media as to whether K. and his alleged co-conspirators acted directly or indirectly on behalf of the government in Kyiv, or whether the pipeline attack in another elaborate attempt from Moscow to sow confusion. Both suspects are Ukrainian nationals who have claimed to be acting on behalf of their country. The pipelines were an issue for Kyiv's relationship with its European allies, representing continued energy dependence on Moscow.

At the same time, Russia would stand to gain two things from the sabotage: creating mistrust between Ukraine and its allies, and freedom from several international lawsuits related to the Nord Stream pipelines. And Moscow has a long-documented history of engaging is complex disinformation campaigns.

Jens Ferner, a German criminal lawyer who has written about the case, told DW that "that is precisely what is so dangerous: that acceptance of the verdict fails because of this question," of who was truly behind the explosion in the Baltic Sea.

For now, the BGH has said it is "assuming that it was initiated by Ukrainian state authorities." But Ferner cautioned that without access to comprehensive intelligence data, and independent investigations, the German judicial system is not fully prepared to rule on where the order came from — something that could undermine public confidence in the court.

"Not only are the possibilities for gaining insight limited, but the investigators' narrative can neither be conclusively verified by the court nor falsified by the defense. This obvious scenario now affects a population that is already deeply unsettled by disinformation campaigns and unsure of what it can still believe," Ferner said, speaking of how Germany has also been affected by Russian disinformation in recent years. He suggested that clearer, more accessible information from the BGH as to how it reaches its conclusions could help mitigate this issue.

Poland reluctant to extradite second suspect

Volodymyr Z.*, also a Ukrainian national, was arrested in his apartment near Warsaw last year, but the Polish government has so far refused to hand him over despite an international arrest warrant issued by Germany.

Citing "insufficient information," at a hearing in October, a Polish court blocked the suspect's extradition, and Polish Prime Minister Donald Tusk then declared: "The case is closed."

It has been suggested by commentators in both Germany and Poland that Warsaw has political motivations for this outcome, having long been more hawkish on Russia and considering Berlin too soft in comparison. Poland had also been openly critical of the Nord Stream pipelines for years before the attack. Tusk has even said that it is "not in Poland's interest" to extradite Z.

Additionally, according to Ferner, the Polish judiciary has not followed through with proper legal procedures. Such a ruling is not meant to be final, but followed by a request for more information, which Polish authorities have not done. Indeed, a Polish court had already accepted the European arrest warrant as valid.

So far, Germany has not appealed to higher EU bodies to move Z.'s case forward, though it has the right to do so. Foreign Minister Johann Wadephul said that Berlin will respect the Polish court's decision and not interfere with another country's legal sovereignty. a

* In accordance with the German press code, Deutsche Welle refrains from publishing the full name of criminal suspects.

Edited by Rina Goldenberg

While you're here: Every Tuesday, DW editors round up what is happening in German politics and society. You can sign up here for the weekly email newsletter, Berlin Briefing.