Information Note on the Court’s case-law 128

March 2010

Medvedyev and Others v. France [GC] - 3394/03

Judgment 29.3.2010 [GC]

Article 1

Jurisdiction of states

Responsibility of states

Territorial jurisdiction in respect of arrest of foreign vessel on high seas

Article 5

Article 5-1

Deprivation of liberty

Procedure prescribed by law

Confinement to ship of crew of foreign vessel arrested on high seas: violation

Ar ticle 5-3

Brought promptly before judge or other officer

First appearance before a judge thirteen days after initial detention following arrest of vessel on high seas: no violation

Facts – The applicants, Ukrainian, Romanian, Greek and Chilean nationals, were crew members on a merchant ship named the Winner , registered in Cambodia. In the context of the international effort to combat drug-trafficking, it came to the attention of the Frenc h authorities that the ship might be carrying large quantities of drugs. In a diplomatic note dated 7 June 2002 Cambodia gave its agreement for the French authorities to take action. The French naval authorities accordingly had the Winner intercepted on th e high seas off Cape Verde and escorted to the French port of Brest.

In a judgment of 10 July 2008 a Chamber of the Court unanimously found a violation of Article 5 § 1 in that the applicants had not been deprived of their liberty “in accordance with a pro cedure prescribed by law”. It also found, by four votes to three, that there had been no violation of Article 5 § 3. It noted that the applicants had not been brought before “a judge or other officer authorised by law to exercise judicial power” within the meaning of Article 5 § 3 until they were brought before the liberties and detention judge to be placed in detention pending trial, that is, after fifteen or sixteen days’ deprivation of liberty. However, it considered that the duration of the applicants’ detention had been justified by wholly exceptional circumstances.

Law – Article 1: As 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, the applicants had effectively been within France’s jurisdiction for the purposes of Article 1.

Conclusion : applicants within jurisdiction (unanimously).

Article 5 § 1: a) Appli cability – The applicants had been placed under the control of the French special forces and deprived of their liberty throughout the voyage as the ship’s course had been imposed by the French forces. Their situation after their ship was boarded thus amoun ted to a deprivation of liberty within the meaning of Article 5.

b) Merits – In cases concerning drug-trafficking on the high seas public international law upheld the principle that the flag State – in this case Cambodia – had jurisdiction.

The Montego Ba y Convention*did not provide any legal basis for the action taken by the French authorities in this case. As Cambodia was not party to the Montego Bay Convention, it could not have been acting under its provisions when it sent its diplomatic note of 7 June 2002. Nor did France’s request for cooperation from the Cambodian authorities fall within the scope of that convention, as it was not based on France’s suspicion that a ship flying the French flag was engaged in drug-trafficking. Furthermore, it had not b een shown that there was any constant practice on the part of the States capable of establishing the existence of a principle of customary international law generally authorising the intervention of any State which had reasonable grounds for believing that a ship flying the flag of another State was engaged in illicit traffic in drugs. Nor could it reasonably be argued that the possibility for a warship to board a ship it had reasonable ground to suspect was without nationality applied to the present case, where the circumstances did not support that hypothesis.

Concerning the relevant French law, apart from the fact that its main purpose was to transpose the international treaties, and in particular the Vienna Convention**, into domestic law, it could not o verride the treaties concerned, or the principle of the exclusive jurisdiction of the flag State. Thus, as Cambodia was not a party to the conventions transposed into domestic law, and as the Winner was not flying the French flag and none of its crew membe rs were French nationals, there had been no grounds for French law to be applied. Nor could it be argued that French law satisfied the general principle of legal certainty, as it failed to meet the requisite conditions of foreseeability and accessibility: it was unreasonable to contend that the crew of a ship on the high seas flying the Cambodian flag could have foreseen – even with appropriate advice – that they might fall under French jurisdiction in the circumstances of the case. Furthermore, although th e purpose of the Montego Bay Convention was, inter alia , to codify or consolidate the customary law of the sea, its provisions concerning illicit traffic in narcotic drugs on the high seas – like those of the complementary Vienna Convention, organising int ernational cooperation without making it mandatory – reflected a lack of consensus and of clear, agreed rules and practices in the matter at the international level.

However, independently of the Montego Bay and Vienna Conventions, and of French law, Camb odia had consented in a diplomatic note to the intervention of the French authorities. Although the Montego Bay Convention did not apply to the present case, it did not prevent States from envisaging other forms of collaboration to combat drug-trafficking at sea. Moreover, diplomatic notes were a source of international law comparable to a treaty or an agreement when they formalised an agreement between the authorities concerned, a common stance on a given matter or even, for example, the expression of a un ilateral wish or commitment. The diplomatic note in question thus officialised the Cambodian authorities’ agreement to the interception of the Winner . The text of the diplomatic note mentioned “the ship Winner , flying the Cambodian flag”, the sole object o f the agreement, confirming the authorisation to intercept, inspect and take legal action against it. Evidently, therefore, the fate of the crew was not covered sufficiently clearly by the note and so it was not established that their deprivation of libert y was the subject of an agreement between the two States that could be considered to represent a “clearly defined law” within the meaning of the Court’s case-law. The diplomatic note did not meet the “foreseeability” requirement either. Nor had the Governm ent demonstrated the existence of any current and long-standing practice between Cambodia and France in the battle against drug-trafficking at sea in respect of ships flying the Cambodian flag; on the contrary, Cambodia had not ratified the relevant conven tions, and the use of an ad hoc agreement by diplomatic note, in the absence of any permanent bilateral or multilateral treaty or agreement between the two States, attested to the exceptional, one-off nature of the cooperation measure adopted in this case. In any event the foreseeability, for an offender, of prosecution for drug-trafficking was not to be confused with the foreseeability of the law relied on as the basis for the intervention. Otherwise any activity considered criminal under domestic law woul d release the States from their obligation to pass laws having the requisite qualities, particularly with regard to Article 5 § 1 of the European Convention and so deprive that provision of its substance.

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. The fact remained that when a flag State, like Cambodia in this case, was not a party to the Montego Bay or Vienna Conven tions , the insufficiency of such legal instruments, for want of regional or bilateral initiatives, was of no real consequence. In fact such initiatives were not always supported by the States, in spite of the fact that they afforded the possibility of acti ng within a clearly defined legal framework. In any event, for States that were not parties to the above-mentioned conventions one solution might be to conclude bilateral ormultilateral agreements with other States. Having regard to the gravity and enormit y of the problem posed by illegal drug-trafficking, developments in public international law which embraced the principle that all States had jurisdiction as an exception to the law of the flag State would be a significant step in the fight against illegal trade in narcotics. This would bring international law on drug-trafficking into line with what had already existed for many years now in respect of piracy.

In view of the above and of the fact that only a narrow interpretation was consistent with the aim of Article 5 § 1, the deprivation of liberty to which the applicants were subjected between the boarding of their ship and its arrival in Brest was not “lawful” within the meaning of Article 5 § 1, for lack of a legal basis of the requisite quality to sati sfy the general principle of legal certainty.

Conclusion : violation (ten votes to seven).

Article 5 § 3: The arrest and detention of the applicants had begun with the interception of the ship on the high seas on 13 June 2002. The applicants were not place d in police custody until 26 June 2002, after arriving in Brest. Before the Grand Chamber, and for the first time since the beginning of the proceedings, the Government submitted substantiated information concerning the presentation of the applicants, that same day, to the investigating judges in charge of the case. The fact remained that the applicants were not 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 – until thirteen days after their arrest. At the time of its interception the Winner had been on the high seas off the Cape Verde islands, and therefore a long way from the French coast. There was nothing to indic ate 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 Winner , which made it impossible for it to travel any faster. In addition, the applicants did not cla im that they could have been handed over to the authorities of a country nearer than France, where they could have been brought promptly before a judicial authority. As to the idea of transferring them to a French naval vessel to make the journey faster, i t was not for the Court to assess the feasibility of such an operation in the circumstances of the case. Lastly, after arriving in France the applicants had spent only about eight or nine hours in police custody before being brought before a judge. That pe riod of eight or nine hours was perfectly compatible with the concept of “brought promptly” enshrined in Article 5 § 3 and in the Court’s case-law. (See Rigopoulos v. Spain (dec.), no. 37388/97, 12 January1999, Information Note no. 2)

Conclusion : no violat ion (nine votes to eight).

Article 41: EUR 5,000 to each applicant in respect of non-pecuniary damage.

* United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, which entered into force on 16 November 1994.

** United Nat ions Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988, which entered into force on 11 November 1990.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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