CASE OF MEDVEDYEV AND OTHERS v. FRANCE
Preliminary objection dismissed (ratione materiae);Violation of Art. 5-1;No violation of Art. 5-3;Non-pecuniary damage - award
Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Isabelle Berro-Lefèvre;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Renate Jaeger
9. The applicants were crew members on a merchant ship named the Winner, registered in Cambodia. The ship had attracted the attention of the American, Spanish and Greek anti-drug services when the Central Office Against Illegal Drug Trafficking (l’Office Central de Répression du Trafic Illicite des Stupéfiants – “the OCRTIS”), a ministerial body attached to the Central Police Directorate of the French Ministry of the Interior, requested authorisation to intercept it. The OCRTIS suspected the ship of carrying large quantities of drugs, with the intention of transferring them to speedboats off the Canary Islands for subsequent delivery to the coasts of Europe. 10. In a diplomatic note dated 7 June 2002, in response to a request from the French embassy in Phnom Penh, the Cambodian Minister for Foreign Affairs and International Cooperation gave his government’s agreement for the French authorities to take action, in the following terms: “The Ministry of Foreign Affairs and International Cooperation presents its compliments to the French embassy in Phnom Penh and, referring to its note no. 507/2002 dated 7 June 2002, 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 XUDJ3, belonging to ‘Sherlock Marine’ in the Marshall Islands. The Ministry of Foreign Affairs and International Cooperation takes this opportunity to renew its assurance of its high esteem.” 11. In a diplomatic telegram dated the same day, the French embassy in Phnom Penh passed on the information to the Ministry of Defence in Paris. 12. The commander of the French frigate Lieutenant de vaisseau Le Hénaff, which lay at anchor in Brest harbour and had been assigned a mission off the coast of Africa, was instructed by the French naval authorities to locate and intercept the Winner. The frigate left Brest harbour the same day to search for and intercept the Winner, with the French navy commando unit Jaubert, a special forces team specialised in boarding vessels at sea, on board for the duration of the mission. On 10 June 2002, during a technical stopover in Spain, three experts from the OCRTIS also boarded the frigate. 13. On 13 June 2002, at 6 a.m., the French frigate spotted a merchant ship travelling at slow speed through the waters off Cape Verde, several thousand kilometres from France. It was not flying a flag, but was identified as the Winner. The merchant ship suddenly changed course and began to steer a course that was dangerous both for the frigate and for members of the armed forces who had boarded a speedboat. While the Winner refused to answer the attempts of the commander of the frigate to establish radio contact, its crew jettisoned a number of packages into the sea; one of the packages, containing about 100 kilos of cocaine, was recovered by the French seamen. After several warnings and warning shots fired under orders from France’s maritime prefect for the Atlantic went unheeded, the French frigate fired a shot directly at the Winner. The merchant ship then answered by radio and agreed to stop. When they boarded the Winner, the French commando team used their weapons to open certain locked doors. When a crew member of the Winner refused to obey their commands, a “warning shot” was fired at the ground, but the bullet ricocheted and the crew member was wounded. He was immediately evacuated onto the French frigate, then transferred to Dakar hospital, where he died a week later. 14. Under orders from the maritime prefect and at the request of the public prosecutor in Brest, a tug with a military doctor on board was sent from Brest to tow the Winner back to Brest harbour, escorted by the frigate Commandant Bouan. Because of its poor state of repair and the weather conditions, the ship was incapable of speeds faster than 5 knots. 15. The crew of the Winner were confined to their quarters under military guard. The Government submit that when the crew had calmed down they were allowed to move about the ship under the supervision of the French forces. According to the applicants, the coercive measures were maintained throughout the voyage, until they arrived in Brest. 16. 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 involving Greek nationals. 17. On 24 June 2002 the Brest public prosecutor’s office opened an investigation into charges, against persons unknown, of leading a group with the aim of producing, making, importing, exporting, transporting, holding, supplying, selling, acquiring or illegally using drugs and conspiring to import and export drugs illegally. Two investigating judges were appointed. 18. On 26 June 2002, at 8.45 a.m., the Winner entered Brest harbour under escort. The crew were handed over to the police, acting under instructions dated 25 June 2002 from one of the investigating judges, who immediately notified the persons concerned that they were being placed in police custody and informed them of their rights. 19. On the same day, the applicants were presented to an investigating judge at the police station in Brest, to determine whether or not their police custody should be extended. The reports submitted to the Grand Chamber by the Government show that certain applicants met one of the investigating judges (R. André) at 5.05 p.m. (Mr Cabrera Leon), 5.10 p.m. (Mr Sage Martínez), 5.16 p.m. (Mr Balaban), 5.25 p.m. (Mr Manolache), 5.34 p.m. (Mr Petcu) and 5.40 p.m. (Mr Dodica), and the other applicants (Mr Medvedyev, Mr Bilenikin and Mr Boreas) were heard by the second investigating judge (B. Simier) at an unspecified time. The applicants were presented to the same investigating judges again the following day, 27 June 2002 (Mr Sage Martínez at 5.05 p.m., Mr Cabrera Leon at 5.10 p.m., Mr Manolache at 5.20 p.m., Mr Balaban at 5.28 p.m., Mr Dodica at 5.35 p.m. and Mr Petcu at 5.40 p.m.; the times for the other three applicants are not known). 20. On 28 and 29 June 2002 the applicants were charged and remanded in custody pending trial (Mr Petcu, Mr Dodica, Mr Balaban and Mr Manolache on 28 June, and Mr Medvedyev, Mr Bilenikin, Mr Boreas, Mr Cabrera Leon, Mr Sage Martínez and two other crew members – Mr Litetski and Mr Theophanous – on 29 June). 21. The applicants applied to the Investigation Division of the Rennes Court of Appeal to have the evidence disallowed, submitting that the French authorities had acted ultra vires in boarding the Winner, as the ship had been under Cambodian jurisdiction and Cambodia was not party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988, and also that they had not been brought “promptly” before a judge, as required under Article 5 § 3 of the Convention, when the Winner was intercepted. 22. In a judgment of 3 October 2002, the court dismissed their appeal and held that there were no grounds for disallowing the evidence. After retracing the details of the operations, including the fact that “on 13 June at 6 a.m. the French frigate spotted a merchant ship – first on its radar, then visually – travelling at slow speed and flying no flag, and identified it as the Winner”, it pronounced judgment in the following terms: “Considering that the international effort to combat drug trafficking is governed by three conventions: the United Nations Single Convention on Narcotic Drugs of 30 March 1961, the United Nations Convention on the Law of the Sea, signed at Montego Bay on [10] December 1982, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988; while France has signed and ratified all three conventions, Cambodia has not signed the Vienna Convention, Article 17 § 3 of which provides for derogations from the traditional principle of the ‘law of the flag State’. Considering that the applicants wrongly suggest in this case that in keeping with the traditional rule codified in Article 92 of the Montego Bay Convention, the authority of a State on ships on the high seas flying its flag is both full and exclusive and that coercion may be used to ensure that the rules of international law and the State’s own law are respected as Article 108 of that Convention, on ‘Illicit traffic in narcotic drugs or psychotropic substances’, stipulates: 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. Considering that, based on that text and ‘with reference’ to the earlier United Nations Convention of 30 March 1961 against international drug trafficking, the French authorities were within their rights to request Cambodia’s cooperation with a view to obtaining that country’s authorisation to intercept the Winner in order to put a stop to the drug trafficking in which all or part of its crew was suspected of being involved; that as the provisions of the Vienna Convention do not apply to Cambodia, it was for that State to ask the French authorities for all the relevant information concerning the alleged drug trafficking to enable it to assess the merits of the request using its unfettered discretion; that the diplomatic telegram sent by the French embassy on 7 June 2002, which actually mentions the reasoned request submitted by the OCRTIS, suffices to establish the existence of an agreement given without restrictions or reservations by the government of Cambodia for the planned interception and all its consequences, and is authoritative until proven otherwise; that on this point the applicants cannot contend that the document does not meet the formal requirements of Article 17 § 3 of the Vienna Convention concerning bilateral agreements between parties, when they are also arguing that the Vienna Convention is not applicable to Cambodia because it has not signed it; and that the value of the diplomatic document is not affected by the fact that the accused did not know the exact status of the person who signed the message or the person who transmitted the Cambodian government’s agreement to the French embassy. Considering, on the other hand, that in proceeding to intercept the Winner it was the duty of the French authorities to comply with the procedures provided for both in the Vienna Convention signed by France – in particular to ‘take due account of the need not to endanger the safety of life at sea, the security of the vessel and its cargo’ – and in the Law of 15 July 1994, as amended by the Law of 29 April 1996 adapting French law to Article 17 of the Vienna Convention, Articles 12 et seq. of which define the sphere of competence of commanders of naval vessels and the procedures for the search, reporting, prosecution and judgment in the French courts of drug trafficking offences committed at sea. Considering that the reports drawn up by the commander of the Lieutenant de vaisseau Le Hénaff, duly authorised by the maritime prefect for the Atlantic, which are authoritative until proven otherwise, state that when the frigate drew within sight of the Winner, off the Cape Verde islands, the merchant ship was flying no flag and its captain not only failed to answer the requests to identify his ship, in breach of the rules of international law, and to stop his ship, but responded aggressively with a series of dangerous manoeuvres that jeopardised the safety of the French frigate and the lives of the sailors on board the speedboat; that it was also reported that the crew of the Winner were seen to be throwing suspicious parcels overboard, one of which was recovered and found to contain a large quantity of cocaine; that all these elements together amounted to reasonable grounds for the commander of the frigate to suspect that he was in the presence of drug traffickers who had jettisoned their cargo before attempting to escape; and that by using force to board the Winner and taking appropriate coercive measures to control the crew and confine them to their cabins and to take over and sail the ship, the commander of the frigate acted in strict compliance with: – the provisions of Article 17 § 4 of the Vienna Convention under which, if evidence of involvement in illicit traffic is found after a ship has been boarded and searched, appropriate action may be taken with respect to the vessel and the persons and cargo on board, – the provisions of the Law of 15 July 1994 as supplemented by the Law of 29 April 1996, which, in its general provisions (Articles 1 to 10) regulates recourse to coercive measures comprising, if necessary, the use of force in the event of refusal by a ship to submit to control and also, in the particular case of the fight against drug trafficking (Articles 12 to 14), makes provision for the implementation of the control and coercion measures provided for under international law. Considering that, regard being had to the distinctly aggressive conduct of the captain of the Winner in attempting to evade inspection by the French naval authorities, and to the attitude of the crew members, who took advantage of the time thus gained to eliminate any traces of the drug trafficking by deliberately throwing the evidence overboard, the members of the commando unit who boarded the ship found themselves in the presence of large-scale international trafficking and were likely at any moment to come up against a hostile and potentially dangerous crew who could threaten the security of their mission; that they were obliged to use their weapons in response to the resistance put up by one of the ship’s crew; that it cannot be claimed that Article 13 of the Law of 15 July 1994 as amended provides only for administrative assistance measures and excludes any form of coercion in respect of people when it stipulates in general terms that the competent maritime authorities are authorised to carry out or have carried out ‘the inspection and coercion measures provided for in international law’, and Article 17 § 4 (c) of the Vienna Convention against Illicit Traffic in Narcotic Drugs [and Psychotropic Substances] expressly mentions taking ‘appropriate action with respect to the persons on board’; that although the nature of these measures is not specified, the text at least provides for the possibility for the competent naval authorities to limit, if necessary, 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; that it cannot be ruled out in the course of such operations against international drug traffickers on the high seas that the crew may have weapons hidden away and may seek to regain control of the ship by force; that consequently, confining the members of the crew of the Winner – all but the wounded man, who was transferred to the frigate – to their cabins under the guard of the commando unit, so that the ship could be safely taken over and rerouted, fell within the appropriate measures provided for in Article 17 § 4 (c) of the Vienna Convention. Considering that the Law of 15 July 1994 necessarily requires some departure from ordinary criminal procedure to allow for the specific 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 is impossible in practice, bearing in mind the time needed to sail to the new port of destination, to apply the ordinary rules governing detention and the right to be brought promptly before a judge; and, that being so, that the restrictions placed on the movements of the boarded ship’s crew, as authorised in such cases by the United Nations Convention signed in Vienna on 20 December 1988, were not at variance with Article 5 § 3 of the European Convention on Human Rights and did not amount to unlawful detention; and that it should be noted that as soon as the Winner docked in Brest, its crew were handed over to the police, immediately informed of their rights and placed in custody, then brought before the investigating judge. Considering also that the French courts have jurisdiction under the Law of 15 July 1994 as amended. ... the grounds of nullity must accordingly be rejected [and] there is no reason to disallow any other documents from the proceedings, which are lawful.” 23. In a judgment of 15 January 2003, the Court of Cassation dismissed an appeal lodged by the applicants in the following terms: “... in so far as Cambodia, the flag State, expressly and without restriction authorised the French authorities to stop the Winner and, in keeping with Article 17 of the Vienna Convention, only appropriate action was taken against the persons on board, who were lawfully taken into police custody as soon as they landed on French soil, the Investigation Division has justified its decision.” 24. On 28 May 2005, the Ille-et-Vilaine Special Assize Court found three applicants – Mr Boreas, Mr Sage Martínez and Mr Cabrera Leon – and one other crew member, S.T., guilty of conspiracy to illegally attempt to import narcotics and sentenced them respectively to twenty years’, ten years’, three years’ and eighteen years’ imprisonment. However, Mr Boreas and S.T. were acquitted of the charge of leading or organising a gang for the purposes of drug trafficking. The Assize Court acquitted the other six applicants and O.L., another crew member, of the charges against them. 25. In a judgment of 6 July 2007, the Loire-Atlantique Assize Court, examining an appeal lodged by Mr Boreas, Mr Sage Martínez and S.T., upheld the conviction and sentenced them respectively to twenty, twelve and seventeen years’ imprisonment. On 9 April 2008 the Court of Cassation dismissed an appeal on points of law lodged by S.T. and Mr Boreas. 26. In a note of 9 September 2008, in reply to a request submitted by the French embassy in Phnom Penh on 3 September 2008, the Ministry of Foreign Affairs and International Cooperation of Cambodia confirmed that its diplomatic note of 7 June 2002 had “indeed authorised the French authorities to intercept and carry out all necessary operations for the inspection, seizure and legal proceedings against the ship Winner, flying the Cambodian flag, but also against all the members of its crew”. 27. The relevant provisions of the United Nations Single Convention on Narcotic Drugs of 30 March 1961, to which France is a party, read as follows: “Having due regard to their constitutional, legal and administrative systems, the Parties shall: (a) Make arrangements at the national level for coordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such coordination; (b) Assist each other in the campaign against the illicit traffic in narcotic drugs; (c) Cooperate closely with each other and with the competent international organisations of which they are members with a view to maintaining a coordinated campaign against the illicit traffic; (d) Ensure that international cooperation 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.” 28. The relevant provisions of the United Nations Convention on the Law of the Sea (“the Montego Bay Convention”) (to which Cambodia is not a party) read as follows: “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.” “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 unauthorised 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 authorised ships or aircraft clearly marked and identifiable as being on government service.” 29. The relevant provisions of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (“the Vienna Convention”) (to which France is a party but not Cambodia) read as follows: “1. The Parties shall cooperate 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 authorisation 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 authorise the requesting State to, inter alia: (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 authorisation 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 authorisation 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 authorised 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.” 30. The relevant provisions of this agreement, signed by twenty-two member States of the Council of Europe (but not by France) and ratified by thirteen, read as follows: “The member States of the Council of Europe, having expressed their consent to be bound by the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on 20 December 1988, hereinafter referred to as ‘the Vienna Convention’, Considering that the aim of the Council of Europe is to bring about a closer union between its members; Convinced of the need to pursue a common criminal policy aimed at the protection of society; Considering that the fight against serious crime, which has become an increasingly international problem, calls for close cooperation on an international scale; Desiring to increase their cooperation to the fullest possible extent in the suppression of illicit traffic in narcotic drugs and psychotropic substances by sea, in conformity with the international law of the sea and in full respect of the principle of right of freedom of navigation; Considering, therefore, that Article 17 of the Vienna Convention should be supplemented by a regional agreement to carry out, and to enhance the effectiveness of the provisions of that Article, Have agreed as follows: ... Section 3 – Rules governing action 1. Having received the authorisation of the flag State, and subject to the conditions or limitations, if any, made under Article 8, paragraph 1, the intervening State may take the following actions: i. a. stop and board the vessel; b. establish effective control of the vessel and over any person thereon; c. take any action provided for in sub-paragraph ii of this Article which is considered necessary to establish whether a relevant offence has been committed and to secure any evidence thereof; d. require the vessel and any persons thereon to be taken into the territory of the intervening State and detain the vessel there for the purpose of carrying out further investigations; ii. and, having established effective control of the vessel: a. search the vessel, anyone on it and anything in it, including its cargo; b. open or require the opening of any containers, and test or take samples of anything on the vessel; c. require any person on the vessel to give information concerning himself or anything on the vessel; d. require the production of documents, books or records relating to the vessel or any persons or objects on it, and make photographs or copies of anything the production of which the competent authorities have the power to require; e. seize, secure and protect any evidence or material discovered on the vessel. 2. Any action taken under paragraph 1 of this Article shall be without prejudice to any right existing under the law of the intervening State of suspected persons not to incriminate themselves. 1. Where, as a result of action taken under Article 9, the intervening State has evidence that a relevant offence has been committed which would be sufficient under its laws to justify its either arresting the persons concerned or detaining the vessel, or both, it may so proceed. ... 1. Actions taken under Articles 9 and 10 shall be governed by the law of the intervening State ...” 31. This agreement between continental and island States of the Caribbean area (Costa Rica, the Dominican Republic, France, Guatemala, Haiti, Honduras, the Netherlands, Nicaragua and the United States of America) in respect of the Vienna Convention, lays down the conditions of the battle against trafficking in narcotic drugs in the area by introducing broad cooperation and providing for States to be able to consent in advance to intervention by the other States Parties on ships flying their flags. 32. It allows a State Party to take coercive action, even in the territorial waters of another State Party, by delegation of the latter State. There are three possibilities: – systematic authorisation; – authorisation if no answer is received from the flag State within four hours of another Party submitting a request for intervention; – express authorisation for the intervention, which corresponds to the current legal situation under the Vienna Convention. 33. The draft law thus allows the States to consent in advance to the intervention of other Parties on a ship flying their flag or located within their territorial waters. 34. The relevant provisions 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, as amended by Law no. 96-359 of 29 April 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, read as follows (version applicable at the material time): “Part II: Special provisions 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. The investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor shall be governed by the provisions of Part I of the present Law and by the following provisions. These provisions shall apply not only to ships flying the French flag, but also: – to ships flying the flag of a State Party to the Vienna Convention of 20 December 1988 other than France, or lawfully registered in such a State, at the request or with the agreement of the flag State; – to ships displaying no flag or having no nationality. Where there exist reasonable grounds to suspect that one of the vessels referred to in section 12 and sailing outside territorial waters is engaged in illicit drug trafficking, commanders of State vessels and of aircraft responsible for surveillance at sea shall have the power – under the authority of the maritime prefect, who shall inform the public prosecutor’s office – to carry out, or have carried out the inspection and coercion measures provided for under international law and under this Law.” 35. In the version amended by Law no. 2005-371 of 22 April 2005, which was not applicable at the material time, section 12 also refers to ships flying the flag of a State which is not party to the Vienna Convention: “The investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor shall be governed by the provisions of Part II of Book V of the first part of the Defence Code and by the provisions of the present Part of this Law. These provisions shall apply not only to the ships mentioned in Article L. 1521-1 of the Defence Code, but also: – to ships flying the flag of a State which has requested intervention by France or agreed to its request for intervention; – to ships displaying no flag or having no nationality.” 36. In order to allow for the period of transit subsequent to a decision to reroute a vessel, Law no. 2005-371 of 22 April 2005 amended Article L. 1521-5 of the Defence Code, in the chapter on “Exercise of the State’s law enforcement powers at sea”, by adding the following final sentence: “During transit subsequent to rerouting, the officers mentioned in Article L. 1521-2 may take the necessary and appropriate coercion measures to ensure the safety of the ship and its cargo and of the persons on board.” 37. In its report on the draft of this Law, the Foreign Affairs Committee stated (extract from Report no. 280 (2004-05), dated 6 April 2005): “B. THE DRAFT LAW 1. Secure the procedures (a) Delete the reference to the Vienna Convention on drug trafficking In the case involving the Winner, a ship flying the Cambodian flag that was stopped by the French navy off the coast of West Africa, the Court of Cassation did not deem it necessary to rely on the Vienna Convention, to which Cambodia was not party, to find that the stopping of the ship with the consent of the flag State in the particular case of drug trafficking had been lawful. It found it sufficient to rely on Article 108 of the Montego Bay Convention, which provides: ‘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.’ On the other hand, when carrying out the interception, a State Party to the Vienna Convention which stops such a ship – in this case, France – must comply with the rules laid down therein and may thus rely on the provisions of Article 17 of the Vienna Convention, concerning coercion measures. In this case the Court found that the jurisdiction of the flag State was not exclusive when it assented to a request to intervene. It appears preferable, however, to delete the reference to the Vienna Convention, in so far as inspection and coercion measures may be carried out on the strength of other international instruments, including the regional cooperation agreements concluded on the basis of the Vienna Convention, such as the San José Agreement of 10 April 2003 when it enters into force. (b) State exactly what the coercion measures involve The draft law also says that during transit subsequent to rerouting, the duly authorised officers of the State may take the necessary and appropriate coercion measures to ensure the safety of the ship and its cargo and of the persons on board.”