JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS, BONELLO, ZUPANČIČ, FURA, SPIELMANN, TSOTSORIA, POWER AND POALELUNGI

1. We disagree with the majority’s view that there has been no violation of Article 5 § 3 of the Convention. The applicants complained that they had not been brought “promptly” before a judge or other officer authorised by law to exercise judicial power after their vessel had been intercepted by the French authorities. Since the Court has already held that the applicants’ arrest and detention until their arrival in Brest had no legal basis and was, therefore, in violation of Article 5 § 1 of the Convention, it could have decided that there was no need to examine, separately, the applicants’ complaint under Article 5 § 3 in respect of the period concerned [1] . This, however, it chose not to do.

2. At the outset, we emphasise that we are as opposed to the scourge inflicted upon society by those involved in illegal drug trafficking as is the majority. Where we differ is in our unwillingness to endorse unnecessary abridgements of fundamental human rights in the fight against that scourge. Such abridgements add nothing to the efficacy of the battle against narcotics but subtract, substantially, from the battle against the diminution of human rights protection.

3. It is undisputed that the applicants were not brought before the investigating judges until thirteen days after their arrest. The Government’s argument that the rerouting of the ship under the supervision of the Brest public prosecutor should be regarded as being a sufficient guarantee against arbitrariness within the meaning of Article 5 § 1 is not convincing, as such supervision cannot be considered to meet the requirements of either Article 5 § 1 or Article 5 § 3 of the Convention in the light of the principles set out in the judgment itself (see paragraphs 123 et seq.) and the jurisprudence of the Court [2] .

4. In Brogan and Others v. the United Kingdom (29 November 1998, § 62, Series A no. 145-B) the Court held that a period of detention in police custody amounting to four days and six hours without judicial review fell outside the strict constraints permitted by Article 5 § 3, notwithstanding the fact that it was aimed at protecting the community as a whole from terrorism. It has also found in Öcalan v. Turkey ([GC], no. 46221/99, ECHR 2005-IV) that a period of seven days’ detention without being brought before a judge was incompatible with Article 5 § 3.

5. We acknowledge that the Court in Rigopoulos v. Spain ((dec.), no. 37388/97, ECHR 1999-II) found that a period of sixteen days was not incompatible with the notion of “promptness” as required under Article 5 § 3 of the Convention in view of the “wholly exceptional circumstances” that were involved therein. In that case, the Spanish customs authorities, in the context of an international drug trafficking investigation, intercepted on the high seas a vessel flying the Panamanian flag and its crew was detained for as long as it took to escort the vessel to a Spanish port. In our view, however, the facts in Rigopoulos are entirely distinguishable from those of the instant case. Most significantly, in Rigopoulos , there was an independent Central Investigating Court and not a public prosecutor supervising the proceedings on board the ship on the day of interception. The very next day its crew members were informed of their situation and advised of their rights. Within two days the court had ordered the crew to be remanded in custody. On the following day they were apprised of that decision and invited to name the persons they wanted to have informed of their detention. This information was communicated to the respective embassies of the States of which the crew members were nationals. Three days after the boarding, the independent investigating court issued an order regularising the crew’s situation in accordance with the Spanish Code of Criminal Procedure. One week after the interception, the applicant had access to the services of a lawyer. Finally, it must be noted that the lawfulness of the detention with regard to Article 5 § 1 was never in issue in the Rigopoulos case.

6. We do not exclude the possibility that there may, at times, exist “wholly exceptional circumstances” which might justify a period that is, in principle, at variance with the provisions of Article 5 § 3. However, in our view, such circumstances would need to be established, clearly, and to be more than simply “special” or “exceptional”. The notion of “wholly exceptional circumstances” connotes, if not “insurmountable” or “insuperable”, then, at least, circumstances in which the authorities could not reasonably envisage or execute any other measures in order to comply with their obligations under the Convention.

7. The Government argued that the weather conditions at the relevant time and the poor state of repair of the Winner accounted for the very slow speed of the vessel and, thus, for the protracted period of time that passed before its crew was brought before a judge. Such factors may explain the delay involved, but they do not justify it. There was no evidence adduced before the Court that the French authorities had even considered, let alone examined, any other options which would have enabled the applicants to have been brought promptly before a judge.

8. In our view, it seems that various possibilities were open to the French authorities which they might have considered as a means of ensuring respect for and vindication of the applicants’ rights under Article 5 § 3. For example, from the moment the frigate Lieutenant de vaisseau Le Hénaff set out from Brest to intercept the Winner (which had been under observation by the American, Greek and Spanish authorities on suspicion of transporting illegal drugs, thus leading to a request by the Central Office for the Repression of Drug Trafficking (“the OCRTIS”) for authorisation to intercept), it was reasonably foreseeable that the services of a judicial officer would be required during the course or in the immediate follow-up to the planned interception. In such circumstances, some consideration might have been given to having a judge join the frigate in Brest, or even later in Spain, when the OCRTIS experts went on board.

9. Alternatively, some consideration might have been given to transporting the crew back to Brest on board a naval vessel. (We note that, having left Brest, it took the Lieutenant de vaisseau Le Hénaff only six days to reach the location of the Winner ). Having regard to the state of repair of the intercepted vessel, it is surprising that the authorities decided to keep its crew on board when they must have known that, as a result, it would take a long time to bring them before a judge. Nor, indeed, would it appear that any thought was given to airlifting those deprived of their liberty to France. This option has been used by the French authorities in cases of piracy on the high seas and it might also have been considered in this one.

10. The above examples, which are not exhaustive, demonstrate that there were, at least, other possibilities open to the French authorities which, if pursued or even explored, might have enabled them to comply with their Convention obligations. Such alternative measures as outlined herein may be considered as extraordinary or far-reaching but when fundamental human rights are at stake exceptional circumstances may, indeed, call for exceptional measures. In this case, far from doing everything possible to bring the applicants promptly before a judge, there is no evidence at all that the above or any alternative measures were even contemplated. Rather, notwithstanding the vessel’s poor state of repair and its incapacity to travel at speed, the crew was simply detained on board the Winner while it made its way, slowly, back to Brest. Thus, it seems to us that the least favourable measure (in terms of travel time) was chosen by the authorities and that any other option would have been preferable in order to ensure compliance with the requirement of promptness contained in Article 5 § 3 of the Convention.

11. We could have accepted a dilution of the protection of personal liberty had it been the result of some material impossibility on the part of the authorities to respect the requirements of Article 5 § 3. We cannot accept it when the authorities had within their power alternative ways to ensure respect for fundamental rights but chose, rather, to do next to nothing about it. Had the French authorities invested a fraction of the resources used to ensure the success of the operation in order to ensure its legality , then this complaint would not have arisen.

12. We cannot follow the majority’s apparent reliance on the subsequent conviction of some of the applicants (not all of them) as a justification for the delay in bringing those detained before a judge. We do not subscribe to the view that respect by the State for the fundamental rights of the individual is dependent upon reciprocity of respect on the part of the individual for the State’s criminal law. What is required at the prologue to a criminal trial hardly depends upon its epilogue.

13. In conclusion, we cannot agree that, in the circumstances of this case, it was necessary to keep the applicants in detention for thirteen days, without any proper legal framework, before bringing them before a judge or other officer authorised by law to exercise judicial power. The French authorities, very laudably, made every effort to place on board the Lieutenant de vaisseau Le Hénaff impressive technical and military manpower to ensure the capture and detention of the suspects. It is regrettable that they made no effort at all to place the proceedings under some form of judicial control which would have ensured that the capture and detention of the suspects was as legitimate as it was successful.

1. Paladi v. Moldova [GC], no. 39806/05, § 76, 10 March 2009.

[2] . Baranowski v. Poland , no. 28358/95, § 57, ECHR 2000-III, Goral v. Poland , no. 38654/97, § 57, 30 October 2003, and Ciszewski v. Poland , no. 38668/97, § 30, 13 July 2004.