RIGOPOULOS v. SPAIN
Inadmissible
The applicant [Mr Angelos Rigopoulos] is a Greek national. He was born in 1946 and lives in Spain. He was represented before the European Commission of Human Rights (“the Commission”) by Mr J. Molins Otero, of the Madrid Bar. The facts, as submitted by the parties, may be summarised as follows. As part of a judicial investigation into a case of international drug trafficking, Central Investigating Court no. 1 of the Audiencia Nacional was informed that the Archangelos, a vessel flying the Panamanian flag, was on the Atlantic Ocean sailing towards Europe with a cargo of cocaine. After obtaining verbal authorisation from the Panamanian embassy in Spain, in accordance with Article 17 §§ 3 and 4 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, adopted in Vienna on 20 December 1988, the investigating judge, in a decision 20 January 1995, ordered that the vessel, which was on the high seas of the Atlantic Ocean approximately 3,000 nautical miles (5,556 km) from the Canary Islands, be boarded and searched. On 23 January 1995 the crew of a Spanish vessel, the Petrel I, belonging to the customs inspection department boarded the Archangelos. After an exchange of fire with several members of the crew who had barricaded themselves into the engine room, the fourteen-member crew surrendered and the vessel set sail again on 26 January 1995. The members of the crew were nationals of various States, and included two Spaniards and the applicant, the vessel’s captain, who is a Greek national. The applicant was transferred to the vessel belonging to the Spanish customs police, where he was placed under police supervision. After searching the Archangelos, the customs police officers seized sixty-eight packets of cocaine weighing 2,713 kg in all. The narcotic powder was attached to wheels, which were on rails, so that the drug could be very quickly thrown into the sea. On 23 January 1995 the Madrid Central Investigating Court ordered reporting restrictions in respect of the judicial investigation for one month. On 26 January 1995 the Central Investigating Court made an order in which it noted firstly that the Archangelos According to the Government, the arrested members of the crew, including the applicant, had been told on 24 January 1995 that they were being detained and had been informed of their rights. On 27 January 1995 they had been notified of the decision of the investigating judge ordering them to be detained. A record of those measures appears in the Petrel I’s log. They had also been invited to name persons whom they wished to be informed of their detention. The applicant had named a Mrs R.T. The embassies of the States of which the detained crew members were nationals had also been informed of their detention. Additionally, from 31 January 1995 the applicant had had a lawyer in Las Palmas and in Madrid. In that connection, his lawyer had sent him a letter in English on 31 January 1995 informing him that his wife had instructed lawyers in London to defend him. The applicant maintained that the decision of 26 January 1995 had not been sent to him until 2 February 1995, as could be seen from the investigating judge’s decision of that date. Moreover, he had had no communication – even by radio telephone – with the investigating judge during his period of detention on the Petrel I. The applicant claimed that it was not until he had arrived at the port of Las Palmas that he was informed in the manner prescribed by law of his rights as a person in detention. He submitted that the brief entries in the Petrel I’s log were of no evidential value and that in any event, as a Greek national with no interpreter or lawyer, he could not be expected to understand, even vaguely, the content of the decision of 26 January 1995. The Archangelos and the Petrel I arrived in Las Palmas (Grand Canary) at 7.30 a.m. on 7 February 1995. At the port of Las Palmas, a judicial commission took charge of the prisoners. Assisted by an interpreter, the commission informed the applicant of the Central Investigating Court’s decision ordering him to be detained pending investigation. He was informed of his rights in the presence of a lawyer and an English-to-Spanish interpreter. On the same day the members of the crew who had been placed in detention were taken to Madrid by air. On 8 February 1995 they were brought before the relevant judicial authority and questioned in the presence of their lawyers, with interpreters on hand. On 16 and 27 February 1995 the applicant lodged an application for the proceedings to be set aside and for his release, alleging that there had been a violation of his fundamental rights. In a decision of 22 March 1995 the Central Investigating Court dismissed his application. An appeal lodged by the applicant was dismissed by the Second Division of the Audiencia Nacional in a judgment of 23 April 1996. The applicant lodged an appeal (recurso de amparo) with the Constitutional Court. He complained that he had been illegally detained, that he had not been brought promptly before a judicial authority and that he had not been informed immediately and in a way that was understandable to him of his rights or of the reasons for his detention. He relied on Article 17 §§ 1, 2 and 3 of the Spanish Constitution (right to liberty and security). In a judgment of 10 February 1997 the Constitutional Court dismissed his appeal. It declared, by way of a preliminary observation, that, notwithstanding that the applicant had been detained while on the high seas, the enforcement of a judicial decision remained subject to the Spanish Constitution and, in particular, to the duty to respect fundamental rights and freedoms, this being in accordance with the case-law established by the European Court of Human Rights in its judgments in the cases of Drozd and Janousek v. France and Spain (judgment of 26 June 1992, Series A no. 240) and Loizidou v. Turkey (judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI). Dealing first with the complaint based on Article 17 § 1 of the Constitution, the Constitutional Court noted that the boarding and searching of the Panamanian vessel had been authorised by the Central Investigating Court (after that court had been informed that the vessel in question was being used for cocaine trafficking), that two Spanish nationals had been on board and that the search had been authorised by Panama. In that connection, the Constitutional Court reiterated that section 23(4) of the Judicature Act of 1 July 1985 gave the Spanish courts jurisdiction over acts committed by Spaniards or aliens outside Spanish territory if those acts constituted an offence like (as in the case in point) drug trafficking. The court added that enforcement of the measure in question aboard a foreign sea-going merchant vessel was potentially contrary to the rules of international law, since the vessel was subject to the jurisdiction of the flag State. Accordingly, any exception to that principle of international law had to be based on a rule of law, which, in this case, was provided by Article 17 §§ 3 and 4 taken together with Article 4 §§ 1 and 3 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, an instrument to which Spain and Panama were Contracting Parties. Under those provisions, any State, having obtained authorisation from the flag State, could take appropriate measures in respect of a vessel being used for drug trafficking and in respect of the members of the crew. The court found that the measure taken by the Central Investigating Court had complied with all the requirements of the convention in question. Consequently, the applicant had been detained in accordance with the law and the manner of his detention had complied with the applicable international rules. With regard to the complaint based on Article 17 § 2 of the Constitution, the Constitutional Court pointed out that any detention lasting more than seventy-two hours had to be authorised by the relevant judicial authority. In the instant case the Central Investigating Court had decided in a reasoned order of 26 January 1995 that the applicant should be held in detention pending investigation. A judicial authority had therefore reviewed the applicant’s deprivation of liberty at the end of the period of custody prescribed by the Constitution. On 9 December 1997 the applicant was released on bail. On 13 October 1998 the Audiencia Nacional convicted the applicant of drug trafficking and sentenced him to nine years’ imprisonment and a fine of two hundred million pesetas. “1. Everyone has the right to liberty and security of person. No one may be deprived of his liberty other than in accordance with the provisions of this Article and only in the cases and in the manner prescribed by law. 2. Pre-trial detention shall last no longer than is strictly necessary to carry out investigations to ascertain the facts. A person detained shall, in any event, be released or placed at the disposal of the judicial authority within a maximum period of seventy-two hours. 3. Any person arrested shall be informed immediately, and in a way that is understandable to him, of his rights and the reasons for his arrest, and shall not be forced to make a statement. He shall be guaranteed the assistance of a lawyer in police and judicial proceedings, on the terms laid down by law. 4. A habeas corpus procedure shall be provided for by law so that anyone who has been illegally arrested can be immediately brought before a judicial authority. The maximum duration of pre-trial detention shall also be determined by law.” “1. Toda persona tiene derecho a la libertad y a la seguridad. Nadie puede ser privado de su libertad, sino con la observancia de lo establecido en este artículo y en los casos y en la forma previstos en la ley. 2. La detención preventiva no podrá durar más del tiempo estrictamente necesario para la realización de las averiguaciones tendentes al esclarecimiento de los hechos, y, en todo caso, en el plazo máximo de setenta y dos horas, el detenido deberá ser puesto en libertad o a disposición de la autoridad judicial. 3. Toda persona detenida debe ser informada de forma inmediata, y de modo que le sea comprensible, de sus derechos y de las razones de su detención, no pudiendo ser obligado a declarar. Se garantiza la asistencia de abogado al detenido en las diligencias policiales y judiciales, en los términos que la ley establezca. 4. La ley regulará un procedimiento de habeas corpus para producir la inmediata puesta a disposición judicial de toda persona detenida ilegalmente. Asimismo, por ley se determinará el plazo máximo de duración de la prisión provisional.” “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. … 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 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. …”