CEDH · PRESS;GCJUDGMENTS;ENG — 29 mars 2010

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France (n o 3394/03)   SHIP’S CREW-MEMBERS WERE UNLAWFULLY DETAINED ON THE HIGH SEAS BUT BROUGHT PROMPTLY BEFORE A JUDICIAL AUTHORITY IN FRANCE   Violation of Article 5 § 1 No violation of Article 5 § 3 (right to liberty and security) of the European Convention on Human Rights     Principal facts   The nine applicants are Oleksandr Medvedyev and Borys Bilenikin, Ukrainian nationals, Nicolae Balaban, Puiu Dodica, Nicu Stelian Manolache and Viorel Petcu, Romanian nationals, Georgios Boreas, a Greek national, and Sergio Cabrera Leon and Guillermo Luis Eduar Sage Martinez, Chilean nationals. They were crew-members of a cargo vessel named the Winner .   In June 2002 the French authorities requested authorisation to intercept the Winner , which was registered in Cambodia, as it was suspected of carrying significant quantities of narcotics for distribution in Europe. In a diplomatic note dated 7 June 2002 Cambodia consented to the intervention of the French authorities. On an order from the Maritime Prefect and at the request of the Brest public prosecutor a tug was sent out from Brest to take control of the Winner and reroute it to Brest harbour. The French Navy apprehended the vessel off the shores of Cap Verde and the crew were confined to their quarters on board under French military guard.   On their arrival in Brest on 26 June 2002, 13 days later, the applicants were taken into police custody and were brought before investigating judges the same day. On 28 and 29 June they were charged and remanded in custody.   On conclusion of the criminal proceedings against the applicants, three of them were found guilty of conspiracy to illegally attempt to import narcotics and received sentences ranging from three to 20 years’ imprisonment. The other six applicants were acquitted.     Complaints, procedure and composition of the Court   Relying on Article 5 § 1, the applicants complained that they had been deprived of their liberty unlawfully, particularly in the light of international law, as the French authorities had not had jurisdiction in that regard. Under Article   5   §   3, they complained that it had taken too long to bring them before “a judge or other officer authorised by law to exercise judicial power” within the meaning of that provision.   The application was lodged with the European Court of Human Rights on 19 December 2002.   In a judgment of 10 July 2008 the Court held unanimously that there had been a violation of Article 5 § 1, taking the view that the applicants had not been deprived of their liberty in accordance with a procedure prescribed by law. It further held, by four votes to three, that there had been no violation of Article 5 § 3, taking into consideration the “wholly exceptional circumstances”, in particular the inevitable delay entailed by having the Winner tugged to France.   On 1 December 2008 the case was referred to the Grand Chamber under Article 43 of the Convention at the request of the Government and the applicants. On 6 May 2009 a hearing was held in public in the Human Rights Building in Strasbourg.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Nicolas Bratza (United Kingdom), President, Jean-Paul Costa (France), Françoise Tulkens (Belgium), Josep Casadevall (Andorra), Giovanni Bonello (Malta), Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia), Lech Garlicki (Poland), Elisabet Fura (Sweden), Khanlar Hajiyev (Azerbaijan), Dean Spielmann (Luxembourg), Sverre Erik Jebens (Norway), Ján Šikuta (Slovakian Republic), George Nicolaou (Cyprus), Nona Tsotsoria (Georgia), Ann Power (Ireland), Mihai Poalelungi (Moldova), Judges,   And also Michael O’Boyle , Deputy Registrar .   Decision of the Court   Article 1   The Court had established in its case-law that the responsibility of a State Party to the European Convention on Human Rights could arise in an area outside its national territory when as a consequence of military action it exercised effective control of that area, or in cases involving the activities of its diplomatic or consular agents abroad and on board aircraft and ships registered in, or flying the flag of, the State concerned.   France had exercised full and exclusive control over the Winner and its crew, at least de facto , from the time of its interception, in a continuous and uninterrupted manner. Besides the interception of the Winner by the French Navy, its rerouting had been ordered by the French authorities, and the crew had remained under the control of the French military throughout the voyage to Brest. Accordingly, the applicants had been effectively within France’s jurisdiction for the purposes of Article 1.   Article 5 § 1   The applicants had been under the control of the special military forces and deprived of their liberty throughout the voyage, as the ship’s course had been imposed by the French military. The Court therefore considered that their situation after the ship was boarded had amounted to a deprivation of liberty within the meaning of Article 5.   The Court was fully aware of the need to combat international drug trafficking and could see why States were so firm in that regard. However, while noting the special nature of the maritime environment, it took the view that this could not justify the creation of an area outside the law.   It was not disputed that the purpose of the deprivation of liberty to which the applicants were subjected while the vessel was being escorted to France had been to bring them “before the competent legal authority” within the meaning of Article 5 § 1 (c). However, the intervention of the French authorities could not, as the Government contended, be justified on the basis of the Montego Bay Convention or under international customary law. Nor were there grounds for French law to be applied, as Cambodia was not a party to the conventions transposed into domestic law, in particular the Vienna Convention, and the Winner had not been flying the French flag.   Cambodia nevertheless had the right to engage in cooperation with other countries outside the framework of the international conventions; the diplomatic note issued by the Cambodian authorities on 7 June 2002 constituted an ad hoc agreement authorising the interception of the Winner , but not the detention of the crew members and their transfer to France, which were not covered by the note. The fact that the French authorities had intervened on the basis of this exceptional cooperation measure – added to the fact that Cambodia had not ratified the relevant conventions and that no current and long-standing practice existed between Cambodia and France in the battle against drug trafficking at sea – meant that their intervention could not be said to have been “clearly defined” and foreseeable.   It was regrettable that the international effort to combat drug trafficking on the high seas was not better coordinated, bearing in mind the increasingly global dimension of the problem. For States that were not parties to the Montego Bay and Vienna Conventions one solution might be to conclude bilateral or multilateral agreements, like the San José agreement of 2003, with other States. Developments in public international law which embraced the principle that all States had jurisdiction whatever the flag State, in line with what already existed in respect of piracy, would be a significant step forward.   Accordingly, the deprivation of liberty to which the applicants had been subjected between the boarding of their ship and its arrival in Brest had not been “lawful”, for lack of a legal basis of the requisite quality to satisfy the general principle of legal certainty. The Court therefore held by ten votes to seven that there had been a violation of Article 5 § 1.   Article 5 § 3   The Court reiterated that Article 5 was in the first rank of the fundamental rights that protected the physical security of an individual, and that three strands in particular could be identified as running through the Court’s case-law: strict interpretation of the exceptions, the lawfulness of the detention and the promptness or speediness of the judicial controls, which must be automatic and must be carried out by a judicial officer offering the requisite guarantees of independence from the executive and the parties and with the power to order release after reviewing whether or not the detention was justified.   While the Court had already noted that terrorist offences presented the authorities with special problems, that did not give them carte blanche to place suspects in police custody, free from effective control. The same applied to the fight against drug trafficking on the high seas.   In this case the applicants had been brought before the investigating judges – who could certainly be described as “judge[s] or other officer[s] authorised by law to exercise judicial power” within the meaning of Article 5 § 3 – 13 days after their arrest on the high seas (the Court regretted the fact that the Government had not submitted substantiated information concerning the presentation of the applicants to the investigating judges until the Grand Chamber stage).   At the time of its interception the Winner had been off the coast of the Cape Verde islands, and therefore a long way from the French coast. There was nothing to indicate that it had taken any longer than necessary to escort it to France, particularly in view of the weather conditions and the poor state of repair of the vessel, which made it impossible for it to travel any faster. In view of these “wholly exceptional circumstances”, it had been materially impossible to bring the applicants before the investigating judges any sooner, bearing in mind that they had been brought before them eight or nine hours after their arrival, a period which was compatible with the requirements of Article 5 § 3.   The Court therefore held by nine votes to eight that there had been no violation of Article   5   §   3.   Article 41 (just satisfaction)   The Court held by 13 votes to four that France was to pay 5,000 euros (EUR) to each of the applicants in respect of non-pecuniary damage and EUR 10,000 to the applicants jointly for costs and expenses. ***   Judges Costa, Casadevall, Bîrsan, Garlicki, Hajiyev, Šikuta and Nicolaou expressed a joint partly dissenting opinion, as did Judges Tulkens, Bonello, Zupančič, Fura, Spielmann, Tsotsoria, Power and Poalelungi. Both separate opinions are annexed to the judgment.   *** The judgment is available in English and French. This press release is a document produced by the Registry. It does not bind the Court. Further information about the Court is available on its   website ( http://www.echr.coe.int ).     Press contacts Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Grand Chamber judgments are final (Article 44 of the Convention).