CASE OF MEDVEDYEV AND OTHERS v. FRANCE
Violation of Art. 5-1;No violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient
Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger
6. The applicants were crew members on a merchant ship named the Winner, flying the Cambodian flag. 7. As part of the international effort to combat drug trafficking, the French authorities were informed that the ship might be carrying large quantities of drugs. 8. By diplomatic telegram dated 7 June 2002, the French embassy in Phnom Penh informed the Ministry of Defence in Paris that, in response to a request from the Central Office for the Repression of Drug Trafficking (“OCRTIS”) for authorisation to intercept the Winner, and at the embassy's request, the Cambodian Minister of Foreign Affairs had personally given his Government's agreement. The Government produced a diplomatic note dated 7 June 2002, addressed by the Cambodian Ministry of Foreign Affairs to the French Embassy in Phnom Penh, stating: “The Ministry of Foreign Affairs and International Cooperation (...), 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 (...) belonging (...) to the Marshall islands. (...) » 9. The commander of the frigate Lieutenant de Vaisseau Le Henaff was instructed by the French naval authorities to intercept the Winner. 10. On 13 June 2002, at 6 a.m., the frigate spotted a merchant ship travelling at slow speed through the waters off Cape Verde. It was not flying a flag, but was identified as the Winner. Its nationality was verified in accordance with international law and, as a security measure, a speedboat was lowered into the water. The merchant ship suddenly changed course, in an attempt to evade the frigate. When attempts were made to contact it on the international radio frequency, it remained silent. At the same time, the crew jettisoned packages over the stern into the sea. The frigate then identified itself and asked the Winner to stop, while signalling the international code SQ (“stop or I shall open fire”) ; no answer came and the ship was still not flying a flag, so a warning shot was fired, followed by further shots to stop it. At the same time the speedboat was ordered to recover the parcels that had been jettisoned. It only managed to recover one. Upon subsequent verification it was found to contain 80 to 100 kg of a narcotic substance resembling cocaine. 11. Three more parcels were thrown overboard. As the freighter had still not stopped and was manoeuvring to prevent the speedboat from pulling alongside, France's Maritime Prefect for the Atlantic ordered the frigate to fire directly at the Winner's bow. This caused the Winner to stop, and an armed commando team boarded it and took control of it by armed force. One of the crew members, who sustained a bullet wound, was evacuated onto the frigate, where he was treated by the ship's doctor before being transferred to Brest hospital, where he died a week later. The rest of the crew were confined to their quarters on board the Winner under military guard. A tug was sent out from Brest, under orders from the Maritime Prefect and at the request of the public prosecutor in Brest, to tow the Winner into Brest harbour, escorted by the frigate Commandant Bouan. 12. 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 in which Greek nationals were involved. 13. On 24 June 2002, the Brest 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. 14. On 26 June 2002, at 8.45 a.m., the Winner entered Brest harbour under escort. The crew and cargo were handed over to the police, acting under instructions 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. 15. The Government submitted that the two investigating judges went to see each of the detainees after twenty-four hours and after forty-eight hours to inform them that their police custody was being extended. 16. On 28 June 2002, Mr Viorel Petcu, Mr Puiu Dodica, Mr Nicolae Balaban and Mr Nicu Stelian Manolache were charged and remanded in custody pending trial. On 29 June 2002 so were Mr Oleksandr Medvedyev, Mr Bory Bilenikin, Mr Georgios Boreas, Mr Sergio Cabrera Leon, Mr Guillermo Luis Eduar Sage Martínez and two other crew members (Mr Oleksandor Litetski and Mr Symeon Theophanous). 17. The above eleven persons applied to the Investigation Division of the Rennes Court of Appeal to have the evidence disallowed; relying in particular on Article 5 of the Convention, they complained that the Winner had been arrested illegally and that their detention on board for thirteen days had also been illegal. In a judgment of 3 October 2002, the court dismissed their appeal and held that there were no grounds for disallowing the evidence. 18. In its judgment the Investigation Division pointed out that the international effort to combat drug trafficking was governed by 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, all of which had been ratified by France. It considered that although Cambodia had not signed the Vienna Convention, Article 17.3 of which provided for derogations from the traditional principle of the “law of the flag State”, that did not prevent the French authorities from “requesting Cambodia's cooperation to obtain authorisation to intercept the Winner in order to put a stop to the drug trafficking in which all or part of its crew were suspected of engaging”, based on Article 108 of the Montego Bay Convention and “with reference” to the Convention of 30 March 1961. According to the Investigation Division, as the provisions of the Vienna Convention did not apply to Cambodia, it was for that State's authorities to ask the French authorities for the information they needed in order to determine, as they alone were entitled to do, whether the request for assistance was well founded. The court then held that the diplomatic telegram of 7 June 2002 from the French Embassy established the existence of “an agreement given without restrictions or reservations by the Government of Cambodia for the planned interception and all its consequences, and was authoritative until proven otherwise”. 19. However, the Investigation Division considered that the agreement in question did not dispense the French authorities from abiding by the rules of procedure set forth in the Vienna Convention and in Articles 12 et seq. of the Law of 15 July 1994 as amended. Nor, it pointed out, had the French authorities failed in that obligation in the circumstances. In the light of the reports drawn up by the commander of the Lieutenant de Vaisseau Le Henaff, the Investigation Division found that when the frigate had drawn within sight of the Winner the latter “was flying no flag” and its captain had “not only failed to answer the requests to identify the ship, in breach of the rules of international law, and failed to stop the ship, but [had] responded aggressively with a series of dangerous manoeuvres that jeopardised the safety of the French frigate and the lives of the sailors on the speedboat”, and the crew of the Winner had thrown parcels containing large quantities of cocaine into the sea. There had therefore been “reasonable grounds”, in the Investigation Division's view, to suspect the Winner of drug trafficking, so that “in using force to stop the Winner and taking appropriate measures to control and restrain the crew, who were confined to their quarters, and to take over and steer the ship”, the commander of the frigate had “strictly observed” the provisions of Article 17.4 of the Vienna Convention (under which he is authorised, when a ship is boarded and searched, “If evidence of involvement in illicit traffic is found, [to] take appropriate action with respect to the vessel, persons and cargo on board”) and the provisions of the Law of 15 July 1994 as amended, regulating the use of coercion measures, including, if necessary, the use of force in the event of refusal by a ship to submit to inspection (Articles 1 to 10), and providing for the implementation of the inspection and coercion measures provided for in international law in the particular case of drug trafficking (Articles 12 to 14). 20. The Investigation Division went on to dismiss the applicants' argument that Article 13 of the Law of 15 July 1994 as amended provided only for assistance measures of an administrative nature, which excluded any form of coercion in respect of people, as the Article mentioned in general terms that the competent maritime authorities had the power 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 concerning drug trafficking expressly mentioned taking “appropriate action with respect to the vessel, persons and cargo on board”. Although it accepted that the exact nature of that action was not specified, the Investigation Division considered that the text concerned provided “at least 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”. In respect of this last point, it considered that “it cannot be ruled out in the course of such operations against international drug traffickers on the high seas that the crew might have weapons hidden away and might seek to regain control of the ship by force”. It concluded that “the fact that the Winner's crew were confined to their quarters (...) under military guard so that the ship could be safely taken over and rerouted fell within the appropriate action provided for in Article 17.4 c) of the Vienna Convention”. 21. Lastly, the Investigation Division considered that the Law of 15 July 1994 “necessarily required 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 was 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”. Accordingly, the restrictions placed on the movements of a 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 Convention and did not amount to unlawful detention. It also noted that in this particular case, as soon as the Winner had docked, its crew had been handed over to the police, immediately informed of their rights and placed in custody, then brought before the investigating judge. 22. An appeal on points of law lodged by the applicants (complaining in particular of a violation of Article 5 § 3 of the Convention) was dismissed in a judgment of the Criminal Division of the Court of Cassation of 15 January 2003. According to that court, “in ruling as it did, in so far as Cambodia, the flag State, [had] 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 had been taken against the persons on board, who [had been] lawfully taken into police custody as soon as they landed on French soil, the Investigation Division [had] justified its decision”. 23. In a judgment of 28 May 2005 the Ille-et-Vilaine Special Assize Court found Mr Georgios Boreas, Mr Symeon Theophanous, Mr Guillermo Sage Martínez and Mr Sergio Cabrera Leon guilty of conspiracy to illegally attempt to import narcotics and sentenced them respectively to twenty years', eighteen years', ten years' and three years' imprisonment; it acquitted the other applicants of the charges against them. The parties have not said what the outcome of a subsequent appeal was. 24. France is party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988, Article 17 of which reads as follows: “ILLICIT TRAFFIC BY SEA 1. The Parties shall co-operate 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 authorization 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 authorize 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 authorization 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 authorization 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 authorized 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.” France has not, however, signed the “Agreement on Illicit Traffic by Sea, implementing article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances”, signed in Strasbourg on 31 January 1995, which entered into force on 1 May 2000. 25. Inserted 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”, section 13 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” reads as follows (version applicable at the material time): “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 Prosecutors' Office – to carry out, or have carried out the inspection and coercion measures provided for under international law and under this law.” Section 12 of the law (in the version applicable at the material time) stipulates that section 13 applies, 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” (in the version amended by Law no. 2005-371 of 22 April 2005, Section 12 refers to “ships flying the flag of a State which has requested intervention by France or agreed to its request for intervention”) and “to ships displaying no flag or having no nationality”. It adds that “the investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor” are to be governed by the following provisions (version applicable at the material time): “Chapter I. - Measures taken at the request or with the agreement of a State Party to the above-mentioned Vienna Convention of 20 December 1988 Section 14 I. – Where he decides to search the ship, at the request or with the agreement of a State Party to the above-mentioned Convention, the commander may have any narcotic substances found on board seized, together with any objects or documents which appear to be linked to drug trafficking. They shall be placed under seal in the presence of the captain of the ship or any person found on board the ship. II. - The commander may order the ship to be rerouted to an appropriate position or port when more thorough inspection is required that cannot be carried out at sea. The ship may also be rerouted to a point located in international waters if the flag State expressly requests it, with a view to taking control of the ship. III. – A report on the measures taken in application of Article 17 of the Vienna Convention, and the products, objects or documents placed under seal, shall be handed over to the authorities of the flag State when no further judicial action is taken on French soil. Chapter II. – Powers of the French courts Section 15 Persons accused of drug trafficking on the high seas and their accomplices may be prosecuted and tried by the French courts when bilateral or multilateral agreements or special arrangements have been concluded between States Parties to the Vienna Convention. Such special arrangements shall be transmitted through diplomatic channels to the French authorities, together with any information capable of giving rise to a suspicion that a ship is engaged in drug trafficking. A copy of these documents shall be forwarded by any means and without delay to the public prosecutor. Section 16 Police officers acting in accordance with the provisions of the Code of Criminal Procedure, customs officers and, when specially so authorised under conditions laid down by a decree of the Conseil d'Etat, commanders of State vessels, naval officers on board such vessels and commanders of State aircraft responsible for patrolling the seas, shall all be empowered to establish that drug trafficking offences are being committed and bring the offenders to justice in the following manner: I. – The relevant public prosecutor shall be given prior notification, by any means, of the operations envisaged with a view to investigating and establishing the offences. The offences shall be placed on record and the record thus made shall be authoritative unless proven otherwise. The report drawn up shall be communicated to the public prosecutor without delay and at the latest within fifteen days following the operations. The interested party shall be given a copy. II. – Subject to the authorisation of the public prosecutor (except in cases of extreme urgency), searches may be made and narcotic substances seized as well as objects or documents that appear to be linked to an offence under the legislation on narcotic substances, or to serve to commit such an offence. Such authorisation shall be communicated by any means. The substances, objects or documents seized shall immediately be placed under seal. Searches may be carried out and items seized on board the ship outside the times laid down in Article 59 of the Code of Criminal Procedure.” 26. France is also party to the Single Convention on Narcotic Drugs of 30 March 1961, Article 35 of which reads as follows: “Having due regard to their constitutional, legal and administrative systems, the Parties shall: a) Make arrangements at the national level for co-ordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such co-ordination; b) Assist each other in the campaign against the illicit traffic in narcotic drugs; c) Co-operate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co-ordinated campaign against the illicit traffic; d) Ensure that international co-operation 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.” 27. Articles 108 and 110 of the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, read as follows: “Article108: Illicit traffic in narcotic drugs or psychotropic substances 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.” “Article 110: Right of visit 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 unauthorized 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 authorized ships or aircraft clearly marked and identifiable as being on government service.”