JOINT PARTLY DISSENTING OPINION OF JUDGES COSTA, CASADEVALL, BÃŽRSAN, GARLICKI, HAJIYEV, Å IKUTA AND NICOLAOU

(Translation)

1. We did not vote for a violation of Article 5 § 1 of the Convention and we should like to explain why.

2. The analysis of the majority of our colleagues is developed in paragraphs 82 to 103 of the judgment. The majority begin by admitting that the purpose of the deprivation of liberty to which the applicants were subjected on board the Winner after it was boarded and while it was being escorted to France was to bring them “before the competent legal authority” within the meaning of Article 5 § 1 (c) of the Convention, and that the parties did not dispute this (see paragraph 82). The majority also acknowledge, implicitly but necessarily as Article 5 § 1 (c) is applicable, that there was “reasonable suspicion” that the applicants had committed one or more offences. This too was not disputed and, indeed, some of the accused were given prison sentences for conspiracy to illegally attempt to import narcotics (see paragraphs 24 and 25).

3. What was at issue, therefore, was whether the deprivation of liberty suffered by the applicants had a “legal basis” under public international law and domestic law, as stated in paragraph 82 of the judgment. The majority of our colleagues found that “a legal basis of the requisite quality to satisfy the general principle of legal certainty” was lacking (paragraph 102 in fine ). This is where the disagreement lies.

4. The boarding of the Winner and the subsequent loss of liberty of its crew during the voyage to Brest (where the applicants were presented before two investigating judges, placed under investigation and remanded in custody, before being tried by a Special Assize Court) had their origin in an international agreement: the diplomatic note of 7 June 2002 or, more precisely, the exchange of two notes on that date, one from the French Republic and the other from the Kingdom of Cambodia. We believe that our Court, which operates in the field of general public international law, should take the existence of that agreement into account, and presume it to be valid unless there is evidence to the contrary (none was adduced in this case).

5. It is explained in the “Facts” part of the judgment that the Winner , a ship registered in Cambodia, had attracted the attention of the anti-drug services of three States (Greece, Spain and the United States of America) when the French Central Office for the Repression of Drug Trafficking (“the OCRTIS”), suspecting it of carrying drugs, requested authorisation to intercept it (see paragraph 9).

6. The request to intercept the Winner , made by the French embassy in Phnom Penh by diplomatic note of 7 June 2002, was thus set in the dual framework of international cooperation and the fight against international drug trafficking. It was in that same framework that the Ministry of Foreign Affairs of Cambodia, the flag State, replied by diplomatic note on the same day. It is important to remember the wording used in that note (quoted in paragraph 10):

“The Ministry of Foreign Affairs and International Cooperation ... has the honour formally to confirm that the royal government of Cambodia authorises the French authorities to intercept, inspect and take legal action against the ship Winner , flying the Cambodian flag ...”

The message is very clear, for both States.

7. It can, of course, be argued that Cambodia’s diplomatic note did not explicitly mention the fate of the ship’s crew; this is pointed out in paragraph 99 of the judgment. It would not be logical, however, to interpret this note so narrowly as to exclude the possibility for the French authorities to take control of the ship and its crew were the inspection to reveal (as it did) the presence of a consignment of drugs. A less literal interpretation was not only confirmed by Cambodia in an explanatory note in 2008 – which there is no reason to believe was mendacious or spurious – but it also seems to be the most reasonable in our opinion, in the context of cooperation between States in the fight against drug trafficking. Besides, it is scarcely possible to dissociate the crew from the ship itself when a ship is boarded and inspected on the high seas. The actions expressly authorised by Cambodia (interception, inspection, legal action) necessarily concerned the crew members.

8. The notion of international cooperation is very important in the Court’s case-law (see, mutatis mutandis , Öcalan v. Turkey [GC], no. 46221/99, §§ 97-99, ECHR 2005-IV). It may be too soon to affirm that new principles of customary international law exist in the field of international drug trafficking (see paragraph 85 of the judgment). But all civilised nations clearly agree that drug trafficking is a scourge, that States must work together to combat it, and that offenders must be arrested and punished, at least where the applicable domestic law so provides, which is evidently the case here. Cambodia’s diplomatic note reflects this will to cooperate and to take legal action against a ship flying its flag but sailing a long way from its coastline (off Cape Verde).

9. It may still be said, it is true, that the diplomatic note did not meet all the conditions laid down in the case-law regarding the quality of the “law” (in particular that of accessibility). But an exchange of diplomatic notes is usually confidential, and must be so if it is to be effective in circumstances such as those in the present case. Nor can foreseeability be appraised in the ordinary manner. The attitude of the Winner (described in paragraph 13), shows that the crew, or at least their leaders, knew the risks they were running in view of the cargo they were carrying: the ship was flying no flag; it suddenly changed course and began steering a course that was dangerous for the French vessel and armed forces; attempts to contact it by radio received no reply; a number of packages were thrown overboard, one of which was recovered and found to contain about 100 kilos of cocaine; and finally, the resistance put up by the crew obliged the French forces to use their weapons. In such conditions, how is it possible to say that the interception, boarding and inspection of the Winner , and the confinement of the crew to their quarters, were unforeseeable?

10. Basically, it is necessary to be realistic in such exceptional circumstances. Cambodia was not party to the United Nations Convention on the Law of the Sea (“the Montego Bay Convention”) and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (“the Vienna Convention”); but that did not prevent it from concluding, as it did, a bilateral agreement with France, as acknowledged in paragraphs 97 and 98 of the judgment. That being so, and bearing in mind that under domestic law the offences of which the applicants were suspected were punishable offences, and that it was not in dispute that the applicants were punished in the proper legal manner, is it necessary to apply the same criteria of “lawfulness” to the legal basis provided by the diplomatic note as are applied in much less exceptional situations? We think not. We believe that the deprivation of liberty imposed on the applicants was not arbitrary, which is, of course, what Article 5 requires above all (see, for example, Winterwerp v. the Netherlands , 24 October 1979, § 39, Series A no. 33, among many other authorities). We believe that the requirement of legal certainty, which was decisive in the finding reached in the judgment (see, by analogy, Baranowski v. Poland , no. 28358/95, § 56, ECHR 2000-III) was, in the circumstances, construed too narrowly. Lastly, is it necessary to point out that although the Winner – with the agreement of the flag State – was undeniably within the jurisdiction of France for the purposes of Article 1 of the Convention, that is no reason to draw conclusions that stretch logic? When there is sufficient concurring evidence to suspect that a ship on the high seas, thousands of miles from the State thus authorised to board it, is engaged in international trafficking to which all countries want to put a stop, it is without a doubt legitimate not to place as narrow an interpretation on the legal basis as one would inside the territory of the State concerned.