FIFTH SECTION

CASE OF MEDVEDYEV AND OTHERS v . FRANCE

( Application no. 3394/03 )

JUDGMENT

STRASBOURG

10 July 2008

THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 29/03/2010

This judgment may be subject to editorial revision.

I n the case of Medvedyev and Others v . France ,

The European Court of Human Rights ( Fifth Se ction), sitting as a Chamber composed of :

Peer Lorenzen, Pr e sident, Jean-Paul Costa, Karel Jungwiert, Renate Jaeger, Mark Villiger, Isabelle Berro-Lefèvre, Mirjana Lazarova Trajkovska, ju d ges, and Claudia W esterdiek , S ection Registrar ,

Having deliberated in private on 13 May and 17 June 2008,

Delivers the following judgment, which was adopted on the last-mentioned date :

PROC E DURE

1 . The case originated in an application ( no. 3394/03) against the French R e publi c lodged with the Cour t on 19 De cemb er 2002 under A rticle 34 of the Convention for the Protection of Human Rights and Fu ndamental Freedom s (“the Convention ” ) by two Ukrainian nationals, M r Oleksandr Medvedyev and Mr Borys Bilenikin, four Romanian nationals , M r Nicolae Balaban, Mr Puiu Dodica, Mr Nicu Stelian Manolache and Mr Viorel Petcu, a Greek national, M r Georgios Boreas, and two Chilean nationals, Mr Sergio Cabrera Leon and Mr Guillermo Luis Eduar Sage Mart í nez, ( “the applicants” ).

2 . The applicants were repr e sent ed by Mr Patric e Spinosi, a member of the Conseil d ' Etat and the Court of Cassation Bar . The French Go vernment (“the Go vern ment” ) were repr e sent ed by M rs Edwige Belliard, Director of Legal Affai rs, Ministry of Foreign Affairs .

3 . On 11 January 2006 the Cour t d e cid ed to communi cate the application to the Government . Applying A rticle 29 § 3 of the Convention , it decided to rule on the admissibility and merits of the application at the same time .

4 . T he Greek, Romanian and Ukrainian Government s were invited to submit written comments , i n accordance with Article 36 § 1 of the Convention , but declined to do so .

5 . A hearing took place in public in the Human Rights Building, Strasbourg , on 13 May 2008 ( Rule 54 § 3 of the Rules of Court ).

There appeared before the Court :

(a) – for the Government

M rs Anne-Françoise Tissier, Deputy Head of Human Rights, Legal Affairs Department, Ministry of Foreign Affairs , A gent ,

M r Mostafa Mihraje, Foreign Affairs Adviser, Human Rights Section, Legal Affairs Department, Ministry of Foreign and European Affairs , Counsel ,

Mr François Martineau, Head of the Maritime Law Office, Naval Commission C entral Directorate ,

M r Elie Renard, magistrat, Department of Criminal Affairs and Pardons , Ministry of Justice ,

M r Serge Segura, Deputy D irect o r of Maritime Law , Fisheries and the Antarcti c, Legal Affairs Department, Ministry of Foreign and European Affairs , Advisers .

(b) – for the applicants

M r Patrice Spinosi, counsel .

The Court heard addresses by Mr Spinosi and M rs Tissier and their replies to questions put to them by its members.

THE FACTS

I. THE CIRC UM STANCES OF THE CASE

6 . The applicants were crew members on a merchant ship named the Winner , flying the Cambodian flag .

7 . 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 .

8 . By diplomatic telegram dated 7 June 2002, the French embassy in Phnom Penh informed the Mi nistry of Defence in Paris that , in response to a request from the Central Office for the Re pression of Drug T ra f fic king ( “ OCRTIS ” ) for aut h orisation to intercept the Winner , and at the embassy ' s request, the Cambodian Minist er of Foreign Affairs had personally given his Government ' s agreement .

The Government produced a diplomatic note dated 7 June 2002, a d dress ed by the Cambodian Minist ry of Foreign Affairs to the French Embassy in Phnom Penh, stating :

“The Ministry of Foreign Affairs and I nternational C oop e ration ( ... ) , referring to its note no. 507/2002 dated 7 June 2002, has the hon o ur formally to confirm that the Royal Government of Cambod ia aut h orise s the French aut h orit ie s to intercept , inspect and take legal action against the ship Winner , flying the Cambodian flag ( ... ) belonging ( ... ) to the Marshall islands . ( ... ) »

9 . The command er of the frigate Lieutenant de V aisseau Le H e naff was instructed by the French naval authorities to intercept the Winner .

10 . On 13 June 2002 , at 6 a . m . , the frigate spotted a merchant ship travelling at slow speed through the waters off Cape Verde . It was not flying a flag, but was identified as the Winner . Its nationality was verified in accordance with international law and , as a security me asure , a speedboat was lowered into the water . The merchant ship suddenly changed course, in an attempt to evade the frigate . When attempts were made to contact it on the international radio frequency , it remained silent . At the same time, the crew jettisoned packages over the stern into the sea . The frigate then identi fied itself and asked the Winner to stop , while signalling the international code SQ ( “ stop or I shall open fire” ) ; no answer came and the ship was still not flying a flag, so a warning shot was fired, followed by further shots to stop it. At the same time the speedboat was ordered to recover the parcels that had been jettisoned. It only managed to recover one. Upon subsequent verification it was found to contain 80 to 100 kg of a narcotic substance resembling cocai ne.

11 . Three more parcels were thrown overboard . As the freighter had still not stopped and was manoeuvring to prevent the speedboat from pulling alongside , France ' s M aritime Prefect for the Atlanti c ordered the frigate to fire directly at the Winner ' s bow . This caused the Winner to stop , and an armed commando team boarded it and took control of it by armed force . One of the crew members, who sustained a bullet wound, was evacuated onto the frigate, where he was treated by the ship ' s doctor before being transferred to Brest hospital, where he died a week later . The rest of t he crew were confined to their quarters on board the Winner under military guard. A tug was sent out from Brest , under orders from the Maritime P refect and at the request of the public prosecutor in Brest , to tow the Winner into Brest harbour , escorted by the frigate Commandant Bouan .

12 . On 13 June 2002, at 11 a .m. , the Brest public prosecutor referred the case to OCRTIS for examination under the flagrante delicto procedure. It emerged that the Greek coastguard had had the Winner under observation in connection with international drug trafficking in which Greek nationals were involved .

13 . On 24 June 2002, the Brest prosecutor ' s office opened an investigation into charges , against persons unknown, of leading a group with the aim of produc ing , making , import ing , export ing , transport ing , holding , supplying , selling , acquiring or illegally using drugs and conspiring to import and export drugs illegally . Two investigating judges were appointed .

14 . On 26 June 2002, at 8. 45 a . m . , the Winner entered Brest harbour under escort. The crew and cargo were handed over to the police , acting under instructions from one of the investigating judges , who imm e diate ly notified the persons concerned that they were being placed in police custody and informed them of their rights.

15 . The Government submit ted that the two investigating judges went to see each of the detainees after twenty-four hours and after forty-eight hours to inform them that their police custody was being extended.

16 . On 28 June 2002, M r Viorel Petcu, Mr Puiu Dodica, Mr Nicolae Bal a ban and Mr Nicu Stelian Manolache were charged and remanded in custody pending trial . On 29 June 2002 so were Mr Oleksandr Medvedyev, Mr Bory Bilenikin, Mr Georgios Boreas, Mr Sergio Cabrera Leon, Mr Guillermo Luis Eduar Sage Mart í nez and two other crew memb ers ( Mr Oleksandor Litetski and Mr Symeon Theophanous).

17 . The above eleven persons applied to the Investigation Division of the Rennes Court of Appeal to have the evidence disallowed ; relying in particul ar on A rticle 5 of the Convention, they complain ed that the Winner had been arrested illegally and that their detention on board for thirteen days had also been illegal . In a judgment of 3 O ctob er 2002, the court dismissed their appeal and held that there were n o grounds for disallowing the e vidence .

18 . In its judgment the Investigation Division pointed out that the international effort to combat drug trafficking was governed by the United Nations Single C onvention on Narcotic Drugs of 30 March 1961, the United Nations C onvention on the Law of the Sea, sign ed at Montego Bay on 10 December 1982 , and the United Nations C onvention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances , sign ed in Vienn a on 20 De cem ber 1988, all of which had been ratified by France. It considered that although Cambod ia had not sign ed the Vienn a C onvention , Article 17.3 of which provided for de rogations from the tradition a l princip l e of the “law of the flag State” , that did not prevent the French aut h orit ie s from “requesting Cambod ia ' s coop e ration to obtain aut h orisation to intercept the Winner in order to put a stop to the drug trafficking in which all or par t of its crew were suspected of engaging” , based on A rticle 108 of the Montego Bay C onvention and “with reference” to the C onvention of 30 March 1961. According to the Investigation Division , as the provisions of the Vienna Convention did not apply to Cambod ia , i t was for that State ' s authorities to ask the French authorities for the i nformation they needed in order to determine , as they alone were entitled to do, whether the request for assistance was well founded . The court then held that the diplomati c telegram of 7 June 2002 from the French Embassy established the existence of “an agreement given without restrictions or reservations by the Government of Cambodia for the planned interception and all its consequences , and was authoritative until proven otherwise” .

19 . However, the Investigation Division considered that the agreement in question did not dispense the French authorities from abiding by the rules of procedure set forth in the Vienna Convention and in A rticles 12 et seq. of the Law of 15 July 1994 as amended . Nor, it pointed out, had the French authorities failed in that obligation in the circ umstances . In the light of the reports drawn up by the command er of the Lieutenant de Vaisseau Le H e naff , the Investigation Division found that when the frigate had drawn within sight of the Winner the latter “was flying no flag” and its captain had “not only failed to answer the requests to identify the ship, in breach of the rules of international law, and failed to stop the ship , but [had] responded aggressively with a series of dangerous manoeuvres that jeopardised the safety of the French frigate and the lives of the sailors on the speedboat”, and the crew of the Winner had thrown parcels containing large quantities of coca i ne into the sea . There had therefore been “reasonable grounds”, in the Investigation Division ' s view, to suspect the Winner of drug trafficking, so that “in using force to stop the Winner and taking appropriate me a sures to control and restrain the crew, who were confined to their quarters, and to take over and steer the ship” , the command er of the frigate had “ strict ly observed” the provisions of A rticle 17.4 of the Vienna Convention ( under which he is authorised, when a ship is boarded and searched, “ If evidence of involvement in illicit traffic is found, [to] take appropriate action with respect to the vessel, persons and cargo on board ”) and the provisions of the Law of 15 July 1994 as amended , regulating the use of coercion measures, including , if ne cessa ry, the use of force in the event of refus al by a ship to submit to inspection ( A rticles 1 to 10), and providing for the implementation of the inspection and coercion me a sures provided for in international law in the particul a r case of drug trafficking ( A rticles 12 to 14).

20 . The Investigation Division went on to dismiss the applicants ' argument that A rticle 13 of the Law of 15 July 1994 as amended provided only for assistance me a sures of an administrative nature , which exclu ded any form of coercion in respect of people , as the A rticle mention ed in g ene ral terms that the competent maritime aut h orit ie s had the power to carry out or have carried out “the inspection and coercion me a sures provided for in international law” and A rticle 17.4 c) of the Vienna C onvention concerning drug trafficking express ly mentioned taking “ appropriate action with respect to the vessel, persons and cargo on board ” . Although it accepted that the exact nature of that action was not specified, the Investigation Division considered that the text concerned provided “at least for the competent naval authorities to l imit , if ne cessa ry , the freedom of the boarded ship ' s crew to come and go; otherwise the provision would be meaningless and the safety of the men taking over control of the ship would be seriously jeopardised” . In respect of this last point, it considered that “it cannot be ruled out in the course of such op e rations against internationa l drug traffickers on the high seas that the crew might have weapons hidden away and might seek to regain control of the ship by force”. It concluded that “the fact that the Winner ' s crew were confined to their quarters ( ... ) under military guard so that the ship could be safely taken over and rerouted fell within the appropriate action provided for in A rticle 17. 4 c) of the Vienna Convention” .

21 . Lastly , the Investigation Division consid ered that the Law of 15 July 1994 “ne cessa rily required some departure from ordinary criminal procedure to allow for the sp e cific needs of the effort to combat drug trafficking by ships on the high seas, in keeping with the rules of international law, and for the fact that it was impossib le in practice, bearing in mind the time needed to sail to the new port of destination , to appl y the ordina ry rul es governing detention and the right to be brought promptly before a judge”. Accordingly, the restrictions placed on the mov e ments of a boarded ship ' s crew , as authorised in such cases by the United Nations C onvention sign ed in Vienn a on 20 De cemb er 1988, were not at variance with A rticle 5 § 3 of the Convention and did not amount to unlawful detention . It also noted that in this particular case , as soon as the Winner had docked , its crew had been handed over to the police , immediately informed of their rights and placed in custody , then brought before the investigating ju dge .

22 . An appeal on points of law lodged by the applicants ( complaining in particular of a violation of A rticle 5 § 3 of the Convention) was dismissed in a judgment of the C rimin al Division of the C ourt of C assation of 15 January 2003. According to that court, “in ruling as it did, in so far as Cambod ia , the flag State , [ had ] express ly and without restriction aut h oris ed the French aut h orit ie s to stop the Winner and, in keeping with A rticle 17 of the Vienn a Convention , only appropri ate action had been taken against the persons on board , who [ had been ] lawfully taken into police custody as soon as they landed on French soil , the Investigation Division [ had ] justifi ed its d e cision ” .

23 . In a judgment of 28 May 2005 the Ille- et -Vilaine Special Assize Court found Mr Georgios Boreas, Mr Symeon Theophanous, Mr Guillermo Sage Mart í nez and Mr Sergio Cabrera Leon guilty of conspiracy to illegally attempt to import narcotics and sentenced them respective ly to twenty years ' , eighteen years ' , ten years ' and three years ' i mprisonment; it acquitt ed the other applicants of the charges against them . The parties have not said what the outcome of a subsequent appeal was.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW

24 . France is party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988 , A rticle 17 of which reads as follows :

“ ILLICIT TRAFFIC BY SEA

1. The Parties shall co-operate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea.

2. A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them.

3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorization from the flag State to take appropriate measures in regard to that vessel.

4. In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag State may authorize the requesting State to, inter a l ia:

a) Board the vessel;

b) Search the vessel;

c) If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board.

5. Where action is taken pursuant to this article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State.

6. The flag State may, consistent with its obligations in paragraph 1 of this article, subject its authorization to conditions to be mutually agreed between it and the requesting Party, including conditions relating to responsibility.

7. For the purposes of paragraphs 3 and 4 of this article, a Party shall respond expeditiously to a request from another Party to determine whether a vessel that is flying its flag is entitled to do so, and to requests for authorization made pursuant to paragraph 3. At the time of becoming a Party to this Convention, each Party shall designate an authority or, when necessary, authorities to receive and respond to such requests. Such designation shall be notified through the Secretary-General to all other Parties within one month of the designation.

8. A Party which has taken any action in accordance with this article shall promptly inform the flag State concerned of the results of that action.

9. The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of this article.

10. Action pursuant to paragraph 4 of this article shall be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.

11. Any action taken in accordance with this article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea. ”

France has not , however, signed the “ Agreement on Illicit Traffic by Sea, implementing article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances ”, signed in Strasbourg on 31 January 1995 , which entered into force on 1 May 2000.

25 . Ins erted by Law no. 96-359 of 29 Ap ril 1996 “on drug trafficking at sea and adapting French l e gislation to A rticle 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienn a on 20 December 1988 ” , section 13 of Law no. 94-589 of 15 July 1994 “on conditions governing the exercise by the State of its powers to carry out checks at sea” reads as follows (version applicable at the material time ):

“Where there exist reasonable grounds to suspect that one of the vessel s referred to in section 12 and sailing outside territorial waters is engaged in illicit drug traffic king , command er s of State vessels and of aircraft responsible for surveillance at sea shall have the power – under the aut hority of the M aritime Prefect , who shall inform the Public Prosecutors ' Office – to carry out, or have carried out the inspection and coercion me a sures provided for under international law and under this law . ”

Section 12 of the law ( in the version applicable at the material time ) stipulates that section 13 appli es , not only to ships flying the French flag but also “to ships flying the flag of a State P art y to the Vienn a C onvention of 20 De cemb er 1988 other than France, or lawfully registered in such a State , at the request or with the agreement of the flag State” ( in the version amended by Law no. 2005-371 of 22 Ap ril 2005, Section 12 refers to “ships flying the flag of a State which has requested intervention by France or agreed to its request for intervention ” ) and “to ships displaying no flag or having no nationality” . It adds that “ the investigation and establishment of drug trafficking offences committed at sea , and prosecution and trial there for ” are to be governed by the following provisions (version applicable at the material time ):

“ Chap ter I . - Mea sures taken at the request or with the agreement of a State Party to the above-mentioned Vienna Convention of 20 December 1988

Section 14

I. – Whe re he de cide s to search the ship , at the request or with the agreement of a State Party to the above-mentioned Convention , the command er may have any narcotic substances found on board seized, together with any objects or documents which appear to be linked to drug trafficking .

They shall be placed under seal in the presence of the cap tain of the ship or any person found on board the ship.

II. - The command er may order the ship to be rerouted to an appropri ate position or port whe n more thorough in spec tion is required that cannot be carried out at sea.

The ship may also be rerouted to a point located in international water s if the flag State express ly requests it , with a view to taking control of the ship .

III. – A report on the me a sures taken in application of A rticle 17 of the Vienna C onvention , and the produ c ts, obje c ts or documents plac ed under seal , shall be handed over to the aut h orit ie s of the flag State when no further judicial action is taken on French soil .

Chap ter II. – Powers of the French courts

Section 15

Persons accused of drug trafficking on the high seas and their accomplices may be prosecuted and tried by the French courts when bilat e ra l or multilat eral agreements or special arrangements have been conclu ded between States P arties to the Vienna C onvention .

Such special arrangements shall be transmi tted through diplomati c channel s to the French aut h orit ies , together with any information capable of giving rise to a suspicion that a ship is engaged in drug trafficking .

A cop y of these documents shall be forwarded by any means and without delay to the public prosecutor.

Section 16

Police officers acting in accordance with the provisions of the Code of Criminal Procedure, customs officers and, when specially so authorised under conditions laid down by a decree of the Conseil d ' Etat , command er s of State vessels , naval officers on board such vessels and command er s of State aircraft responsible for patrolling the seas , shall all be empowered to establish that drug trafficking offences are being committed and bring the offenders to justice in the following manner :

I. – The relevant public prosecutor shall be given prior notification, by any means, of the ope rations envisag ed with a view to investigating and establishing the offences .

The offences shall be placed on record and the record thus made shall be authoritative unless proven otherwise. The report drawn up shall be communicated to the public prosecutor without delay and at the latest within fifteen days following the ope rations. The interested party shall be given a copy .

II. – Subject to the aut h orisation of the public prosecutor (except in cases of extreme urgency), searches may be made and narcotic substances seized as well as obje c ts o r documents that appear to be linked to an offence under the le gislation on narcotic substances , or to serve to commit such an offence . Such aut h orisation shall be communicated by any means .

The substances , obje c ts o r documents seized shall imm e diate ly be placed under seal .

S earches may be carried out and items seized on board the ship outside the times laid down in A rticle 59 of the Code of Criminal Procedure . ”

26 . Fran ce is also party to the Single C onvention on Narcotic Drugs of 30 March 1961 , A rticle 35 of which reads as follows :

“ Having due regard to their constitutional, legal and administrative systems, the Parties shall:

a) Make arrangements at the national level for co-ordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such co-ordination;

b) Assist each other in the campaign against the illicit traffic in narcotic drugs;

c) Co-operate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co-ordinated campaign against the illicit traffic;

d) Ensure that international co-operation between the appropriate agencies be conducted in an expeditious manner; and

e) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution, the transmittal be effected in an expeditious manner to the bodies designated by the Parties; this requirement shall be without prejudice to the right of a Party to require that legal papers be sent to it through the diplomatic channel;

f) Furnish, if they deem it appropriate, to the Board and the Commission through the Secretary-General, in addition to information required by article 18, information relating to illicit drug activity within their borders, including information on illicit cultivation, production, manufacture and use of, and on illicit trafficking in, drugs; and

g) Furnish the information referred to in the preceding paragraph as far as possible in such manner, and by such dates as the Board may request; if requested by a Party, the Board may offer its advice to it in furnishing the information and in endeavouring to reduce the illicit drug activity within the borders of that Party. ”

27 . A rticles 108 and 110 of the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982 , read as follows :

“ Article108 : Illicit traffic in narcotic drugs or psychotropic substances

1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.

2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic. ”

“ Article 110: Right of visit

1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:

(a) the ship is engaged in piracy;

(b) the ship is engaged in the slave trade;

(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;

(d) the ship is without nationality; or

(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship ' s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

4. These provisions apply mutatis mutandis to military aircraft.

5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service. ”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION

28 . The applicants claimed that they had been arbitrarily deprived of their liberty. First of all, they had been detained on board the Winner for thirteen days under the guard of French military forces without their de tention being supervised by any judicial aut h orit y , so they had not been brought “promptly” before a judge, as required by Article 5. They also complained of the lack of clarity of the text s on which their de privation of liberty had been based . They relied on A rticle 5 of the Convention , paragraphs 1 and 3 of which read as follows :

“ 1. Everyone has the right to libert y and security of person . No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law :

( ... )

c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ;

( ... )

3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

( ... ) ”.

A. Th e parties ' submissions

1. The Government

29 . The Government emphasised the need, when examining the circumstances of the case, to take into account the imp e rati ve s of the effort to combat illicit trafficking in drugs and the collective respons i bilit y incumbent on the States in this field . They added that it was in order to assume its share of that responsibility that France had acted in this case , mobilis ing two naval vessels for several days at its own expense.

30 . T he Government agreed , however, that on bo a rd the Winner , the applicant s had been de priv e d of their libert y , within the meaning of A rticle 5 of the Convention, for thirteen days ( from 13 June 2002, when the ship was intercept ed , to 26 June 2002, when it docked in Brest harbour ). They consid er ed that this de privation of libert y met the requirements of that provision , however, pointing out that it had been “in accordance with a procedure prescribed by law”, as required under paragraph 1 of Article 5 .

31 . In that connection the Government r e f e r r e d to three international conventions . First of all, the Montego Bay C onvention on the Law of the Sea , of 10 December 1982 , A rticle 108 of which established the princip l e of coop e ration between States to combat illegal drug trafficking by ships on the high seas i n violation of international conventions, as it provided for a State that had s e ri o us r ea sons to suspect that a ship flying its flag w as engaging in such trafficking to seek the cooperation of other States to put a stop to it; and A rticle 110 aut h orise d the States to board a ship at sea if they had reasonable grounds to suspect that it was without nationality . Secondly, the Convention on Narcotic Drugs of 30 March 1961 , which had been ratifi e d by France and sign e d by Cambodia, under A rticle 35 of which the Parties agreed to a ssist each other in the campaign against the illicit traffic in narcotic drugs . And thirdly, the Vienn a C onvention of 20 De cemb er 1988 against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (no t ratifi e d by Cambodia ), which organise d and improved the coop e ration provided for in the Montego Bay Convention . In particul a r the Vienna Convention provided explicit ly , when there were “reasonable grounds to suspect illicit tra ffic” , for a Party to request permission to board a foreign ship from the authorities of the ship ' s flag State and, if permission was granted, to search the ship and, if evidence of an offence was found, to “ take appropriate action with respect to the vessel, persons and cargo on board ”.

32 . T he Government admitted that Cambod ia had not ratifi e d the Vienna Convention, but there was nothing to prevent France and Cambodia from drawing inspiration from it and, based on A rticle 108 of the Montego Bay Convention and on the C onvention of 30 March 1961, concluding an ad hoc agreement whereby the Cambod ian authorities aut h oris ed France to board the Winner and take custodial me asures . According to the Government , the rules of international law allowed a State temporarily to exercise its jurisdiction over a vessel that normal ly came under the juri s diction of a nother State if the latter aut h orise d it , even by “diplomatic note” as in the instant case . Referring to the Aegean Sea Continental Shelf judgment of the I nternational C ourt of J ustice ( Gr ee ce v . Tur key judgment of 19 D e cemb er 1978) , they submitted that questions of form were not conclusive .

33 . The Government also based their arguments on Law no. 94-589 of 15 July 1994 on conditions governing the exercise by the State of its powers to carry out checks at sea , under section 13 of which, w here there exist ed reasonable grounds to suspect that a vessel flying the flag of a State Party to the Vienna Convention or – like the Winner – flying no flag, and sailing outside territorial waters , wa s engaged in illicit drug trafficking, commanders of State vessels responsible for surveillance at sea had the power to carry out, or have carried out , “ the inspection and coercion measures provided for under international law and under this law ” . Lastly , the Government pointed out that A rticle L. 1521-5 of the Defence Code , as amended by Law no . 2005-371 of 22 Ap ril 2005, now provided, “during transit subsequent to rerouting , ” for ships ' command er s to “take the necessary and appropriate coercion me a sures to ensure the safety of the ship and its cargo and of the persons on bo a rd ” .

34 . According to the Government , by referring to “ the inspection and coercion measures provided for under international law and under [the Law of 15 July 1994 ] ” and to “ appropriate me a sure s” , the applicable law was precise enough to constitute a basis for deprivation of liberty that met the requirements of A rticle 5 § 1 of the Convention. In any event, in engaging in illicit drug trafficking on the high seas the applicant s must have realised that their ship might be intercept e d by any State combating that scourge. In addition, in aut h oris ing France “ to intercept, inspect and take legal action against ” the Winner , the Cambodia n authorities also – n e cessa rily – aut h oris e d the French authorities to reroute the ship towards France and confine its crew members to their quarters .

35 . Furthermore , referring to the Rigopoulos v . Spain decision of 12 January 1999 ( no. 37388/97, Re ports of Judgments and D e cisions 1999-II), the Government maintained that , having regard to the exception al circ um stances of the c as e, it should be consid e r e d that the applicant s had been “brought promptly before a ju d ge or other office r authorised by law to exercise judicial power”, as required by A rticle 5 § 3 of the Convention.

36 . They submitted that the applicants ' detention on board the Winner had lasted only as long as had been strictly n e cessa ry for the ship to be escorted to a French port . As in the Rigopoulos case , it had not been materially possible for the authorities to bring the applicant s before an investigating judge any sooner in view of the distance to Brest (3 , 500 km) and the fact that, given the weather conditions and the poor state of repair the Winner was in, it was incapable of speeds faster than 5 knots . It was true that, unlike the position in the Rigopoulos case , it had not been possible to apply to the liberties and detention judge to authorise the applicant s ' placement in custody , as that could only have been done after an investigation had been opened, which was only possible after the judge had heard the interested parties . However, the Government submitted that under the French law applicable to interception at sea , firstly the de privation of libert y concerned had taken place under the supervision of a “ competent legal authority ” , the public prosecutor , and secondly , the applicant s had had the benefit of the g uarante es specific to that particular proc e dure . On this last point the Government mentioned that , under the proc e dure concerned , no questioning of suspects was possible – “in order to guarantee th e hearings that would be held subsequently, in a judicial context” –, body searches were not permitted , the public prosecutor was inform e d in advance of the op e rations envisag e d for the purpose of detecting and establishing the offence , and the parties concerned received copie s of the reports of th o se op e rations. In the instant case, the Government emphasised , the Brest Public Prosecutor ' s Office had constant ly been kept inform e d as of 7 June 2002, and had itself aut h oris e d the searches and seizures and, on 24 June 2002, opened an investigation “to make sure that all the rights of the d e fen c e were safeguarded in a clear judicia l framework” ; moreover , as soon as the ship was intercept ed , the captain of the Winner had received a copy of the reports drawn up by the French navy and been kept inform e d of all the op e rations in real time , and the search es of the ship and crew had been conducted in his pr e sence.

37 . Lastly , the Government maintained that the C ode of Criminal P roc e dure had been applied to the letter when the crew members arrived in Brest on 24 June 2002 and were remanded in custody as part of an investigation opened in respect of drug offences committed by persons unknown . The Government stressed that the int e res ted parties had been handed over, upon arrival, to the police – acting on judicial instructions – , who had taken them into custody and informed them of their rights. The two investigating ju d ges had visited them after twenty-four and forty-eight hours to notif y each of them that their detention was being extended . As to the police custody itself , consid e r ing in particul a r the number of applicant s and the need to use the services of interpr e te r s to question them, it had been justifi e d throughout by the needs of the investigation .

38 . I n conclusion, the Government asked the Court to reje c t the application as “manifestly ill-founded” .

2 . The applicant s

39 . The applicant s conteste d the Government ' s submission that their detention on board the Winner had been “in accordance with a procedure prescribed by law” within the meaning of A rticle 5 § 1.

40 . Firstly , they alleged , they had been deprived of their liberty without any justification under international or domestic law .

41 . The y submitted that the Montego Bay C onvention was not applicable in the instant case : under A rticle 108 a State that had serious reasons to suspect that a ship flying its flag was engaging in drug trafficking was entitled to seek the cooperation of other States to put a stop to it , but in the instant case the requesting State was France, not Cambodia . Cambodia ' s mere acceptance could not be likened to a request made to France for cooperation in boarding a ship flying the Cambodian flag , which was the only scenario provided for in A rticle 108 of the Montego Bay Convention . As to the Vienn a Convention of 20 D e cemb er 1988, it was not binding on Cambod ia , which was not party to it , so it could not be used to justify the boarding of ships flying the Cambodian flag on the high seas.

42 . On the matter of a “ so-called ad hoc bilateral agreement” between France and Cambodia , it would appear, based on the Government ' s own submissions, that it covered only a “request for interception ”, and that the Cambodian authorities merely aut h orise d a “boarding operation” ; in other words, even assuming that the purported agreement did have legal force even though it was based on a mere diplomatic note – which, moreover, had not been adduced in the domestic proceedings – , it would only have justified the interception of the Winner , not the d e tention of its crew .

43 . Law no. 94-589 of 15 July 1994 was likewise inapplicable , the applicants alleged, in so far as while ships ' command er s had the power under sections 12 and 13 , outside territorial waters and where there was a suspicion of drug trafficking , to carry out, or have carried out “ the inspection and coercion measures provided for under inter national law and under this law ” , this applied only to ships flying the French flag or the flag of a nother State Party to the Vienna Convention of 20 December 1988 , or lawfully registered in such a State, and to ships displaying no flag or having no nationality . According to the applicant s, however, the Winner did not fit into any of these cat e gories. They pointed out in particul ar that the Government were contr a di c t ing themselves in stating, on the one hand , that pr ior to the interception they had requested the aut h orisation of Cambod ia, which was considered to be the flag State, and on the other hand that the ship had been flying no flag or was wi thout nationalit y . It was clear, in their opinion , that at the time of the interception the French authorities had identifi e d the Winner and there had never been any doubt as to the identity of the ship being boarded or its nationalit y .

44 . The applicant s ' case thus differ ed from the Rigopoulos case cited above , which concern ed the interception by the Spanish authorities of a Panamanian ship and the taking of coercive me a sures against the crew , both Spain and Panam a being P arties to the Vienn a C onvention and therefore bound by A rticle 17 thereof .

45 . Secondly , in any event , the aforementioned provisions of domestic and international law were not suffi ci ent ly explicit regarding the custodial me a sures that could be considered to qualif y as lawful within the meaning of A rticle 5. The applicant s pointed out in this connection that section 13 of the Law of 15 July 1994 stated simply that the maritime authorities had the power to take “ the inspection and coercion measures provided for under international law ”, and that A rticle 17.4 c) of the Vienn a C onvention provided only for the taking of “ appropriate action with respect to the persons on board ” . Law no. 2005-371 of 22 Ap ril 2005, which henceforth explicit ly empowered command er s to take coercive me a sures amounted, according to the applicants, to an “ implicit avowal” of the inadequacy of the law in force prior to that point in time .

46 . In respect of A rticle 5 § 3, the applicant s pointed out that in the above-cited Rigopoulos case , where the C ourt had found a complaint similar to theirs manifest ly ill-founded , the custodial me a sure in issue had been taken by an “officer authorised by law” within the meaning of that provision . The same could not be said in their case . Even assuming that the public prosecutor had been kept informed, throughout the journey, about the op e rations taking place on board the Winner , that did not make him “an “officer authorised by law to exercise judicial power” within the meaning of A rticle 5 § 3. On that point, r e f e r ring, inter alia , to the Huber v . Switzerland judgment of 23 O ctob er 1990 (s e rie s A no. 188), the applicant s pointed out, in particular, that the French public prosecutor lacked the ind e pend e nce in respect of the ex e cuti ve to qualify as such an officer , the French prosecution service being placed under the aut h orit y of the Government , via the Ministry of Justice .

47 . Furthermore , the applicant s submitted , in the Rigopoulos case the authorities had done their best to remain within the framework of Spanish legal proc e dure ; i n particul a r, the investigating judge had taken care, within the three days following the interception , to issue an ord er stating that upon expiry of the 72-hour legal time-limit after which a person detained should be released or brought before the appropriate judicial authority , the situation of the crew members who had been detained should be r e gularise d and they should be placed in detention pending trial . Nothing had prevented the French authorities from doing the same thing in their case , by contact ing a ju d ge by t e l e phone to obtain his agreement to the crew members being kept in d e tention on bo a rd the Winner and inform ing them of their rights and of the offences of which they were suspected , and allowing them to contact their lawyers and notify their families . Moreover , the applicant s submitted that upon their arriv al in Brest they had been plac e d in custody for between forty-eight and seventy-two hours , as if they had just been arrested, whereas they had already been detained for thirteen days on bo a rd ship . Between fifteen and sixteen days had thus passed before they were brought before an “officer authorised by law to exercise judicial power” .

B. T he C ourt ' s assessment

1. Admissibility

48 . The C ourt notes that the application is not manifest ly ill-founded within the meaning of A rticle 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds , and that it must therefore be d e clare d admissible .

2. Merits

49 . First of all , the C ourt points out that it shares the Government ' s view that it must be borne in mind that the action taken by the French authorities against the Winner and its crew was taken in the context of France ' s participation in the effort to combat international trafficking in drugs . As it has repeatedly stated , in view of the ravages caused by drugs , the Court understands that the authorities of the Contracting P arties should treat those who contribu t e to the propagation of this scourge with great firmness . However , l e gitim at e as it may be , the end does not justify the use of no matter what means : the States must secure to everyone within their juri s diction the rights and freedoms defined in the Convention and the addition al Protocol s they have ratifi e d , in all circ um stances and with only those restrictions provided for in those same texts . In view of the “paramount importance ” attached to A rticle 5 of the Convention ( see McKay v . the United Kingdom [GC], judgment of 3 O ctob er 2006, no. 543/03, ECHR 2006-X, § 30), they must be particularly vigilant in this respect when , as in the instant case , a de privation of libert y within the meaning of that provision is in issue.

50 . Having made that clear , the C ourt notes , on the one hand , that it is not disputed that between 13 June 2002 ( the date on which the Winner was intercept ed ) and 26 June 2002 ( when it arriv e d in Brest harbour ) the Winner and its crew were under the contr ol of French milita ry forces , so that even though they were outside French territo ry , they were within the juri s diction of France for the purposes of A rticle 1 of the Convention. It further notes that the parties agree that throughout that p e riod on board the Winner – and the subsequent police custody – the applicant s were dep riv e d of their libert y within the meaning of A rticle 5 of the Convention, “for the purpose of bringing them before the competent legal authority” ( A rticle 5 § 1 ( c)).

51 . That is also the opinion of the C ourt , which also refers to the Rigopoulos decision cited above .

52 . The parties disagree, on the other hand, as to whether the applicant s ' detention on board the Winner was “in accordance with a procedure prescribed by law” as required by A rticle 5 § 1 of the Convention , and whether, in conform ity with paragraph 3 of that A rticle, the y had been “brought promptly before a judge or other officer authorised by law to exercise judicial power” .

a. A rticle 5 § 1

53 . The C ourt reiterates that A rticle 5 § 1 primarily requires any arrest or detention to have a legal basis in domestic law . However, these words do not simply refer back to domestic law ; they also relate to the qualit y of the “law” , requiring it to be compatible with the rule of law , a concept inh e rent in all the A rticles of the Convention. In order to ascertain whether a de privation of libert y has complied with the “ princip l e of compatibility with domestic law” , it falls to the C ourt to assess not only the l e gislation in force in the field under consid e r ation, but also the quality of the other legal rules applicable to the persons concerned , including, where applicable, those with their origin in international law . Quality in this sense implies that where a national law authorises de privation of libert y, it must be sufficiently accessible and pr e cise , in order to avoid all risk of arbitrariness. In any event it must afford adequate legal protection and the legal certainty n e cessa ry to prevent arbitrary interferences by publi c authorities with the rights guaranteed by the Convention ( see Amuur v . France , judgment of 25 June 1996, Reports of Judgments and D e cisions 1996-III, §§ 50 and 53).

54 . The C ourt notes that international law establishes the princip l e of freedom of navigation on the high seas , subject to the powers of inspection and coercion of ships by those of their flag State . The ships of other States may, however, carry out such inspections , even without the prior agreement of the flag State , where there are serious reasons to suspect that a ship is engaged in the slave trade , in piracy or in unauthori s ed broadcasting , or is without nationality or , though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship carrying out the inspection ( see, inter alia , A rticle 110 of the Montego Bay C onvention , cited above ), or when specific treaties provide for it . A rticle 17 of the Vienn a Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances ( cited above ), on “ illicit tra f fic by sea”, provides, for example , beyond coop e ration between the P arties to suppress illicit tra f fic by sea (paragraph 1), for the possibilit y for any Party “ which has reasonable grounds to suspect ” that a vessel flying the flag or displaying marks of registry of another Party is engaged in illicit traffic to so notify the flag State, request confirmation of registry and, if confirmed, “ request authori s ation from the flag State to take appropriate measures in regard to that vessel ” (paragraph 3). Under p aragraph 4 of A rticle 17 the flag State may authori s e the requesting State to b oard and search the vessel and, “if evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board ” .

55 . Next , the Law of 15 July 1994 “on conditions governing the exercise by the State of its pow ers to carry out checks at sea” , as amended by the Law of 29 Ap ril 1996 “on drug trafficking at sea and adapting French legislation to Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988 ” empowers the command er s of State vessels responsible for surveillance at sea , w here there exist “ reasonable grounds to suspect ” that a vessel sailing outside territorial waters and flying a French flag or the flag of a Party to the above-mentioned Vienna Convention, or lawfully registered in such a State , is engaged in illicit drug trafficking , to carry out, or have carried out, under the authority of the Maritime Prefect, who must inform the Public Prosecutors ' Office, “ the inspection and coercion measures provided for under international law ” and under th e law of 15 July 1994 . As to the me a sures that can be taken “ at the request or with the agreement of ” a Party to the above-mentioned Vienna Co nvention of 20 December 1988 by virtue of that law, section 14 mention s “ searching the ship ”, “having any narcotic substances found on board seized, together with any objects or documents which appear to be linked to drug trafficking ” and having them placed under seal, and “ order ing the ship to be rerouted to an appropriate position or port whe n more thorough inspection is required that cannot be carried out at sea ” .

56 . The C ourt notes that the Investigation Division of the Rennes C ourt of A ppe a l found that as C ambod ia was not party to the above-mentioned Vienna Convention , the me a sures taken by the French authorities against the Winner and its crew at sea , notwithstanding the “ traditional principle of the ' law of the flag State ' ” , had no legal basis in the d e rogations from that princip l e provided for under A rti cle 17 § 3 of the Vienna C onvention. The Investigation Division did consid e r , however, that that did not prevent the French authorities from “requesting Cambodia ' s cooperation to obtain authorisation to intercept the Winner to put a stop to the drug trafficking in which all or part of its crew were suspected of engaging” . In the Division ' s opinion the action taken by the French authorities was justifiable under A rticle 108 of the Montego Bay C onvention , which calls for States to “ cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions ” and stipulates that “ Any State which has reasonable grounds for believing that a ship flying its flag is engaged in [ such traffic ] may request the cooperation of other States to suppress [it] ” , and “ with reference” to the Single Convention on Narcotics of 30 March 1961 ( A rticle 35 of which lays down the princip l e of mutu al assistance between the P arties in the campaign against the illicit traffic in narcotic drugs ). According to the Investigation Division , the action taken in this case against the Winner and its crew had its legal basis in the “ agreement given without restrictions or reservations ” to the French authorities by the Government of Cambodia “ for the planned interception and all its consequences” , within the bounds, of course, of the rules of procedure set forth in the Vienna Convention and the Law of 15 July 1994 on conditions governing the exercise by the State of its powers to carry out checks at sea , “ sections 12 et seq. of which d e fin e the powers of command er s of State vessels and regulate the investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor, by the French authorities” . The Investigation Division was convinced that “in using force to stop the Winner and taking appropriate measures to control and restrain the crew, who were confined to their quarters, and take over and steer the ship”, the commander of the frigate had “strictly observed” the provisions of that law and of Article 17.4 of the Vienna Convention .

57 . The C ourt is not fully convinced by this approach . Firstly , because it refers to international conventions to which Cambod ia is not part y . And s econdly , because it relies on legal provisions which, at the material time, provided for the French authorities to take action outside territorial waters only against French ships or “ ships flying the flag of a State Party to the Vienna Convention of 20 December 1988 [which Cambodia has no t ratified, as stated earlier] ... or lawfully registered in such a State, at the request or with the agreement of the flag State” and “ships displaying no flag or having no nationality ”. There is some doubt in this case, however, whether the Winner fitted into any of those categories. The C ourt also notes that the present version of the Law of 15 July 1994 (as amended by Law no. 2005-371 of 22 April 2005 ) , refers more generally to “ships flying the flag of a State which has requested intervention by France or agreed to its request for intervention”) . This change in the law seems to suggest that the law as applicable at the material time was found to be lacking in so far as it referred only to States P arties to the Vienn a Convention . The C ourt also note s , like the applicant s, that the Government ' s submissions concerning the applicability of, and compliance with, the said l e gislative provision s are based on a contradiction. The Government submitted that at the time of the interception the Winner had not been flying a flag , while at the same time asserting that the French authorities had sought confirmation from the Cambodian authorities that the ship was registered in Cambodia , and the judgment of the Investigation Division showed that the ship had been identified as the Winner before the op e rations commenced .

58 . It is true that the French authorities acted with the prior agreement of Cambodia , as atteste d by the diplomatic note of 7 June 2002 , in which the Cambodian M inist er of Foreign A ffairs formally confirm ed that his Government “ aut h orise d the French authorities to intercept , inspect and take legal action against the Winner ” . The C ourt is willing in this connection to follow the reasoning of the Investigation Division in so far as it consid e r s that, having regard to A rticle 108 of the Montego Bay Convention , the interception and boarding of the Winner by the French authorities had a legal basis in that agreement . However , consid e r ing the wording of the diplomatic note , it has strong doubts whether it can be deduced from it, as the Investigation Division did , that the agreement covered not only the “planned interception” but also “all its consequences”, including the thirteen days ' detention imposed on the crew members on board the ship .

59 . In other words , the C ourt considers that it cannot be deduced from the agreement that the d e tention in issue had a l e gal basis for the purposes of A rticle 5 § 1 of the Convention.

60 . It must be said, furthermore, that the law of 15 July 1994 makes no more specific provision for de privation of libert y of the type and dur ation of that to which the applicant s were subjected . Sections 12 to 14 of the law refer to the taking of “ the inspection and coercion measures provided for under international law and under this law ” ( section 13). As stated earlier, however, the me a sures pr o v ided for by the law itself are limited to identifying and boarding the ship, seizing any narcotic substances found on board and placing them under seal, and possibly rerout ing the ship to an appropriate position or port whe n more thorough inspection is required that cannot be carried out at sea (or to a point located in international waters if the flag State expressly requests it, with a view to taking control of the ship ).

As to international law , first of all A rticle 17 of the Vienn a C onvention – to which the Investigation Division refers in this connection – merely provides, in paragraph 3 , for the intervening State to “ take appropriate measures ” in regard to th e vessel concerned and, in paragraph 4 , for the boarding and searching of the vessel and “i f evidence of involvement in illicit traffic is found ” , the taking of “ appropriate action with respect to the vessel, persons and cargo on board ” (A rticle 17 § 4.c.) . And secondly , the Government mention no provision of international law that is more specific on this question .

61 . Furthermore , the C ourt consid ers that the above-mentioned legal provisions do not afford sufficient protection against arbitra ry violations of the right to liberty . None of th os e provisions refers specifically to de priv ing the crew of the intercept e d ship of their libert y . It follows, therefore, that they do not regulate the conditions of de privation of libert y on board ship , and in particular the possibilit y for the persons concerned to contact a lawyer or a family member . Nor do they place the detention under the supervision of a judicial authority ( see , mutatis mutandis , the Amuur judgment, cit e d above , § 53). It is true, as the Government point ed out , that me a sures taken under the Law of 15 July 1994 are taken under the supervision of the p ublic p rosecutor , who is inform ed by the Maritime Prefect ( section 13 of the law ) and “ given prior notification, by any means, of the operations envisaged with a view to investigating and establishing the offences ” ( section 16 of the law ); in addition , the interested parties receive copie s of the records establishing the offences ( ibid . ) and , according to the Government , no questioning of suspects was possible on board ship and body searches were not permitted . It must be acknowledged , however, that the public prosecutor is not a “ competent legal authority” within the meaning the C ourt ' s case-law gives to that notion : as the applicant s pointed out , he lacks the independence in respect of the executive to qualify as such ( see Schiesser v . Switzerland , judgment of 4 D e cemb er 1979, s e rie s A no. 34, §§ 29-30).

62 . Accordingly , and having r e gard in particular to the “ scrupulous adherence to the rule of law ” required by A rticle 5 of the Convention ( see McKay , cited above , same r e f e rences ), it cannot be said that the applicants were deprived of their libert y “in accordance with a procedure prescribed by law” , within the meaning of paragraph 1 of that provision .

63 . That being so , there has been a violation of A rticle 5 § 1 of the Convention.

b. A rticle 5 § 3

64 . The Court must also examin e the question the dur ation of the de privation of libert y suffered by the applicant s raises in respect of A rticle 5 § 3 of the Convention : thirteen days on board the Winner plus two or three days – depending on the cas e – of police custody in Brest. On this last point the Government submit ted , it is true, that the two investigating ju d ges went to see each of the detainees after twenty-four hours and after forty-eight hours to inform them that their police custody was being extended . However , that assertion, in support of which the Government have adduced no evidence , is corroborated neither by the statement of facts made in the judgment of the Investigation Division of the Rennes Court of Appeal of 3 O ctob er 2002 , nor by any other documentary evidence . Be that as it may, it must be noted that the applicant s were not brought before “ a ju d ge or other officer authorised by law to exercise judicial power” within the meaning of A rticle 5 § 3 until they were brought before the liberties and detention judge to be placed in detention pending trial ( on 28 June 2002 for some and 29 June for others ) , that is, after fifteen or sixteen days ' deprivation of liberty .

65 . As the C ourt pointed out in the Rigopoulos decision cited above , such a lapse of time is in princip l e not compatible with the concept of “brought promptly” laid down in Article 5 § 3 of the Convention . O nly “ wholly exceptional circumstances ” could justify such a period , it being understood that nothing could dispense the C ontracti ng P arties of the obligation to secure in all circumstances to all persons within their juri s diction proper safeguards against arbitrary deprivations of liberty .

66 . The Rigopoulos c ase c oncern ed the interception at sea by Spanish customs officers of a ship flying the Panamanian flag and transport ing cocai ne, and the d e tention of its crew – including the applicant , the ship ' s captain – for sixteen days , the time it took to escort the ship to a Spanish port . The C ourt found the complaint under A rticle 5 § 3 manifestly ill-founded , holding that “ having regard to the wholly exceptional circumstances of the ... case, the time which elapsed between placing the applicant in detention and bringing him before the investigating judge cannot be said to have breached the requirement of promptness in paragraph 3 of [ Article 5 ]” . The circ um stances taken into consideration included the fact that the distance to be covered was “ consid e rable ” ( the ship was more than 5,500 km from Spanish territory when it was intercept ed ) and that a delay of forty-three hours caused by the resistance put up by certain members of the crew “[could] not ... be attributed to the Spanish authorities ”. The Court accordingly consider ed “ that it was therefore materially impossible to bring the applicant physically before the investigating judge any sooner ” . It further noted that once he had arrived on Spanish soil , the applicant had immediately been transferred to Madrid by air and that he had been brought before the judicial authority on the following day. Lastly , it consider ed unrealistic the applicant ' s suggestion that , rather than Spain , the ship could have been divert ed to a British island, Ascension Island , located approximately 1,600 km from where the vessel was boarded .

67 . When the Winner was boarded, it too was at sea , a long way from the French coast , at a distance comparable to that in the Rigopoulos case , and there was no evidence that getting it to France had taken any longer than n e cessa ry . Moreover , the applicant s have not suggested that it would have been possible to hand them over to the authorities of a country closer than France , where they might have been brought promptly before a competent legal aut h orit y . The instant case thus has a lot in common with the Rigopoulos case : here too, it was materially impossible to bring the applicant “ physically ” before such an authority any sooner .

68 . While it is true that the instant case differs in that upon their arriv al in Brest, after thirteen days ' d e tention at sea , the applicant s were plac e d in police custody for two days in some cases and three days in others , before they were brought before “ a ju d ge or other officer authorised by law to exercise judicial power” within the meaning of A rticle 5 § 3 of the Convention , the total duration of the de privation of libert y they thus endured remained comparable to that complained of by Mr Rigopoulos. Furthermore , the C ourt considers reasonable the Government ' s argument that the police custody and its duration were justified by the needs of the investigation , considering the number of applicant s and the need to use the services of interpreters to question them . The fact remains that the d e tention impos e d on the applicant s on bo a rd the Winner was not under the supervision of a “competent legal authority” within the meaning of A rticle 5 ( the public prosecutor did not qualify as such ; see paragraph 61 above ), while Mr Rigopoulos had been detained “ on the orders and under the strict supervision ” of the Madrid Central Investigating Court ; unlike him, the applicants in the instant case did not enjoy the protection against arbitrariness that such supervision affords . However, that consideration , which the C ourt duly examin e d with reference to paragraph 1 of A rticle 5, does not change the fac t that the duration o f the applicant s ' detention was justifi e d by the “ wholly exceptional circumstances ” described above , and in particular the time it inevitably took the Winner to reach France .

69 . That being so , there has been no violation of A rticle 5 § 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

70 . A rticle 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocol s thereto , and if the intern al law of the High Contracting Part y concerned allows only partial reparation to be made , the C ourt shall, if necessary, afford just satisfaction to the injured party . ”

A. D a mage

71 . The applicant s claimed 10 , 000 euros (EUR) each in respect of non-pecuniary damage .

72 . The Government consid ered the sums claimed “ excessive, unj ustifi e d and devoid of any causal relationship with the complaints lodged” .

73 . The C ourt consid ers that the applicant s undoubtedly sustained non-pecuniary damage , but that the finding of a violation it has reached constitute s in itself sufficient just satisfaction .

B. Costs and expenses

74 . The applicant s claimed EUR 5 , 000 for their costs and expenses before the C ourt . They produced a request for an advance for that sum , drawn up by their co unse l on 25 S eptemb er 2006 .

75 . The Government invite d the C ourt to reject the applicant s ' claim .

76 . The C ourt notes that the applicant s have produced valid documentary evidence in support of their claim . Considering that the sum claimed is not excessive , it accepts it and awards the applicant s joint ly EUR 5 , 000 in respect of costs and expenses .

C. Default interest

77 . The C ourt considers it appropri at e that the default interest should be base d on the marginal lending rate of the European C entral Bank, to which should be added three percentage points .

FOR THESE REASONS , THE COURT

{0> 1. Declare , à l’unanimite, the requête recevable ; <}88{> 1. Declares the application admissible unanimously; <0}

{0> 2. Dit , à l’unanimite, qu’il y a eu violation of l’article 5 § 1 of the Convention ; <}86{> 2. Holds unanimously that there has been a violation of Article 5 § 1 of the Convention; <0}

{0> 3. Dit , par quatre voix contre trois, qu’il n’y a pas eu violation of l’article 5 § 3 of the Convention ; <}85{> 3. Holds by four votes to three that there has been no violation of Article 5 § 3 of the Convention; <0}

{0> 4. Dit, à l’unanimite, que the constat of violation of l’article 5 § 1 fournit en soi a satisfaction equitable suffisante pour the dommage moral subi par the applicants ; <}63{> 4. Holds unanimously that the finding of a violation of Article 5 § 1 constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants; <0}

{0> 5. Dit , à l’unanimite, <}97{> 5. Holds unanimously <0}

{0> a) que l ’ State defendeur doit verser aux applicants conjointement, dans the trois mois à compter of the jour où l’arrêt sera devenu definitif conformement à l’article 44 § 2 of the Convention, 5 000 EUR (cinq mille euros), plus tout montant pouvant être dû à titre of impôt par the applicants, pour frais and depens ; <}73{> (a) that the respondent State is to pay the applicants jointly , within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicants ; <0}

{0> b) qu’à compter of l’expiration dudit delai and jusqu’au versement, ce montant sera à majorer of a interêt simple à a taux egal à celui of the facilite of prêt marginal of the Banque centrale europeenne applicable pendant cette periode, augmente of trois points of pourcentage ; <}72{> (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; <0}

{0> 6. Rejette , à l’unanimite, the demande of satisfaction equitable pour the surplus. <}80{> 6. Dismisses unanimously the remainder of the applicants ' claims for just satisfaction. <0}

{0> Fait en français, puis communique par ecrit the 10 juillet 2008 en application of l’article 77 §§ 2 and 3 of the règlement. <}78{> Done in French, and notified in writing on 10 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. <0}

{0> Claudia Westerdiek <}99{> Claudia Westerdiek <0}              {0> Peer Lorenzen <}56{> P. Lorenzen , <0} {0> Greffière <}100{> Registrar <0} {0> President <}99{> Pr e sident <0}

{0> Au present arrêt se trouve joint, conformement aux articles 45 § 2 of the Convention and 74 § 2 of the règlement, l’expose of l’opinion partiellement dissidente of the juge Berro-Lefèvre, à laquelle se rallient the juges Lorenzen and Lazarova Trajkovska. <}59{> In accordance with Article 45 § 2 of the Convention an d Rule 74 § 2 of Rules of Court , the partly dissenting opinion of Judge Berro-Lefèvre , joined by Judge Lorenzen and Judge Lazarova Trajkovska , is annexed to this judgment. <0}

P .L. C.W.

partly dissenting opinion of Judge Berro-Lefèvre, joined by Judge Lorenzen and Judge Lazarova Trajkovska

I do not share the majorit y ' s opinion that there has been no violation of A rticle 5 § 3 of the Convention in this case , where it is not disputed that the applicants ' d e tention lasted thirteen days on board the Winner , plus two or three days , depending on the applicant, of police custody in Brest.

In the Rigopoulos case the C ourt found the complaint under A rticle 5 § 3 manifestly ill-founded , taking into account the wholly exception al circ um stances of the case , and the fact that it was materially impossible to bring the applicant physically before the investigating judge any sooner .

When the Winner was boarded, it too was a long way from the French coast and there is no evidence that escorting it to France took any longer than necessary . Here too it was materially impossible to bring the applicant s physically before a judicial authority any sooner .

However , what distingu ishes the pr e sent cas e from the Rigopoulos case is that , upon their arrival in Brest, after thirteen days ' d e tention at sea , the applicant s were placed in police custody for two days in some cases and three days in others before being brought before a judge or other officer authorised by law to exercise judicial power , formally notified of the charges and plac e d i n d e tention pending trial . That action was taken against the whole crew, irrespective of the degr e e of the applicants ' involvement in the alleged tra ffic, and indeed I note that some of them were acquitt ed by the Ille-et - Vilaine S pecial Assize Court .

I see no reasonable explanation – and the Government ' s arguments on this point fail to conv inc e me – why the applicant s were not placed under investigation and brought before the liberties and detention judge as soon as they arrived in Brest, considering that the boarding operation had been planned for several weeks , an investigation had been opened and investigating ju d ges had been appointed on 24 June 2002.

Bearin g in mind the thirteen days ' deprivation of liberty the applicant s were subjected to on board the Winner , I consid er that the two or three additional days they spent in police custody do not meet the requirement of promp tness present in the wording of Article 5 § 3 . One of the aims of that requirement of promptness is to protect people against lengthy d e tention at the hands of the police or the administrative authoritie s.

What distingu ish e s the instant case even more from the Rigopoulos case is the fact that the d e tention impos e d on the applicant s was not under the supervision of “ a judge or other officer authorised by law to exercise judicial power ” , but under that of the public prosecutor , who , as explained in the judgment (paragraph 61) in reference to A rticle 5 § 1 , does not qualify as such an officer according to the Court ' s case-law ( Sch iesser v . Switzerland , judgment of 4 D e cemb er 1979, s e rie s A no. 34, §§ 29-30, and Huber v . Switzerland , judgment of 23 O ctob er 1990, s e rie s A no. 188 ), whereas in the Rigopoulos case the applicant had been detained under the strict supervision of the Madrid Central Investigating Court – a sp e cial i nvestigating court ind e pend e nt of the ex e cuti ve .

After the first seventy-two hours of custody Mr Rigopoulos was imm e diate ly, on the basis of a reasoned order , plac e d i n d e tention pending trial while the ship was rerouted , so that in his case his detention was under judicial supervision once the initial legal p e riod of police custody expired .

The crew of the Winner , by contrast, did not enjoy the protection against arbitrariness that such supervision affords . The judgment points out this shortcoming in paragraph 68, but draws no conclusion from it in respect of A rticle 5 § 3, referring simply to the “ exception al circ um stances ” of the case .

I appreciate that where drug trafficking is concerned the national authorities must treat those who contribute to the propagation of this scourge with great firmness ( see , for ex a mple, the judgments in the cases of Maslov v . Au stria , [GC], no. 1638/08, of 23 June 2008, § 80 ; Dalia v . France , of 19 February 1998, Reports 1998-I § 54; and Baghli v . France , of 30 N ovemb er 1999 , no. 34374/97 , ECHR 1999-VIII , § 48 ).

However , as the pr e sent judgment rightly says in paragraph 49, the end does not justify the use of no matter what means .

The C ourt has constantly reiterated the importance of the provisions of A rticle 5 in the Convention system : they embody a fundamental human right , namely the protection of individu als against arbitra ry interference by the State with their freedom ( see in particular Saadi v . the United Kingdom [GC], judgment of 29 January 2008, no. 13229/03, ECHR 2008- ... , § 63 ; Winterwerp v. the Netherlands , judgment of 24 O ctobe r 1979, S e rie s A no. 33, § 37 ; and Brogan and Others v . the United Kingdom , judgment of 29 No vemb er 1988, S e rie s A, no. 145-B, § 58 ).

In this particular case France did not have a legislative framework that afforded sufficient protection against arbitra ry deprivation of libert y , and in my opinion no exception al circ um stance justifi e d a fifteen- or sixteen-day delay before the applicants were brought before a competent legal authority .

That being so, I consider that there has been a violation of A rticle 5 § 3 of the Convention.