CEDH · CASELAW;CLIN;ENG — 10 juillet 2008

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France - 3394/03 Judgment 10.7.2008 [Section V] Article 5 Article 5-1 Procedure prescribed by law Confinement to ship of crew of foreign vessel arrested on high seas: violation Article 5-3 Brought promptly before judge or other officer Period of 16 days’ detention before detainees were brought before a judicial authority following the arrest of their vessel on the high seas: no violation [This case was referred to the Grand Chamber on 1 December 2008] Facts : The applicants, who were Ukrainian, Romanian, Greek and Chilean nationals, were crew members on a merchant ship named the Winner , flying the Cambodian flag. As part of the international effort to combat drug trafficking, the French authorities were informed that the ship might be carrying large quantities of drugs. The French authorities accordingly had the ship intercepted at sea, off Cape Verde, and redirected to Brest harbour (France). Law : Article 5 § 1 – International law lay down the principle of freedom of navigation on the high seas, although ships remained subject to supervisory and coercive measures by other ships from the same flag State. Ships sailing under the flag of a different State might, however, board a ship, even without the prior consent of that ship’s flag State, when there was reasonable ground to suspect that the ship concerned was carrying slaves or engaging in piracy or unauthorised broadcasting, was without nationality or, though flying a foreign flag or refusing to show its flag, was, in reality, of the same nationality as the ship investigating it, or when such boarding was provided for in specific treaties. The Investigation Division of the Court of Appeal had relied on international conventions to which Cambodia was not party. Its approach was based on legal provisions which, at the material time, provided for the French authorities to be able to board ships (in addition to French ships) outside their territory only if the ships concerned were flying the flag of a country party to the Vienna Convention (which Cambodia had not ratified) or were properly registered in one of those States – at the request or with the agreement of the flag State – or if the ships were flying no flag or were without nationality. It was open to doubt, however, whether the Winner actually fell into any of the above categories. In its present form the law was aimed more generally at ships whose flag State had asked the French authorities to take action or had agreed to them taking action. Lastly, the argument that those legal provisions applied to the case in issue and should have been complied with was based on a contradiction, the Government having maintained that at the time of the interception the Winner had not been flying a flag, while at the same time stating that they had first obtained confirmation from the Cambodian authorities that the ship was registered in Cambodia, and it was clear from the judgment of the Investigation Division that it had been identified as the Winner before any move was made to intercept it. However, the French authorities had acted with the prior consent of Cambodia. The interception and boarding of the Winner by the French authorities had thus had a legal footing in the Montego Bay Convention. By contrast, that convention did not provide a legal basis for the detention complained of. For one thing, there was no specific provision in the law for deprivation of liberty of the type and duration of that endured by the applicants. It referred instead to supervisory and coercive measures provided for under international law and under that convention. The same applied to international law and the Vienna Convention. They did not afford adequate protection against arbitrary infringements of the right to liberty. None of their provisions expressly addressed the deprivation of liberty of the crew members of an intercepted ship. It followed that they did not regulate the conditions of deprivation of liberty on board ship, including the possibility for the detainees to contact a lawyer or their relatives. Nor did they place the detention under the control of a judicial authority. It was true that the measures taken in application of the law had been taken under the supervisory authority of the public prosecutor and the parties concerned had received copies of the official reports recording the offences. And no questioning or body searching had been permitted on board. However, the public prosecutor was not a judicial authority for the purposes of the Court’s case-law as he lacked the independence vis-à-vis the executive required to qualify as such. It could not be said, therefore, that the applicants had been deprived of their liberty in a lawful manner. Conclusion : violation (unanimously). Article 5 § 3 – The applicants had not been brought before a judge or other officer authorised by law to exercise judicial power until they had appeared before the liberties and detention judge ( juge des libertés et de la détention ), to be remanded in custody, that is to say after fifteen or sixteen days’ deprivation of liberty. Now, in its decision in the case of Rigopoulos v. Spain (dec.), no.   37388/97, 2   January 1999 (Information Note no.   02), the Court had pointed out that such a delay was, in principle, incompatible with the requirement for prompt action expressed in the terms “brought promptly before a judge” used in this provision. Only wholly exceptional circumstances could justify it, while nothing could dispense the States from their obligation, in all circumstances, to afford persons under their jurisdiction sufficient safeguards against arbitrary deprivations of liberty. In the case of the Winner it had been materially impossible to bring the applicants physically before a judge or other legal officer any more promptly. Lastly, on their arrival in port after thirteen days’ detention at sea the applicants had been placed in police custody for two days in some cases and three days in others, before being brought before an officer authorised by law to exercise judicial power, so the total duration of their deprivation of liberty remained comparable to that complained of by the applicant Rigopoulos . However, the placement in police custody and the duration thereof were explained by the needs of the investigation, considering the number of applicants involved and the need to use interpreters to question them. It did remain true that the applicants’ detention on board the Winner had not been under the supervision of a judicial authority (the public prosecutor did not qualify as such) and that they had not enjoyed the protection against arbitrariness that such supervision afforded. These considerations did not, however, alter the fact that the duration of the deprivation of liberty endured by the applicants had been justified by the wholly exceptional circumstances outlined above. Conclusion : violation (four votes to three). Article 41 – Non-pecuniary damage: finding of a violation sufficient.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes