MIGRANTS AT SEA

The Grand Chamber of the European Court of Human Rights issued its decision in Case of Medvedyev and Others v. France (Application no. 3394/03) on 29 March.  The applicants in the case were crew members on a Cambodian ship intercepted by the French Navy near Cape Verde.  The crew members were brought to France where they were convicted of drug smuggling.  Proceedings were then brought by the crew members before the ECtHR to challenge, among other things, the legality of their detention at sea.

An analysis of the decision by Douglas Guilfoyle, Lecturer in Law at University College London, is posted on EJIL: Talk! – “ECHR Rights at Sea: Medvedyev and others v. France.”

From the Registrar’s Press Release:

“Article 1- The Court had established in its case-law that the responsibility of a State Party to the European Convention on Human Rights could arise in an area outside its national territory when as a consequence of military action it exercised effective control of that area, or in cases involving the activities of its diplomatic or consular agents abroad and on board aircraft and ships registered in, or flying the flag of, the State concerned. France had exercised full and exclusive control over the [ship] and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner. Besides the interception of the [ship] by the French Navy, its rerouting had been ordered by the French authorities, and the [ship’s] crew had remained under the control of the French military throughout the voyage to Brest. Accordingly, the applicants had been effectively within France’s jurisdiction for the purposes of Article 1.

Article 5 § 1 – The applicants had been under the control of the special military forces and deprived of their liberty throughout the voyage, as the ship’s course had been imposed by the French military. The Court therefore considered that their situation after the ship was boarded had amounted to a deprivation of liberty within the meaning of Article 5. The Court was fully aware of the need to combat international drug trafficking and could see why States were so firm in that regard. However, while noting the special nature of the maritime environment, it took the view that this could not justify the creation of an area outside the law. [***] Accordingly, the deprivation of liberty to which the applicants had been subjected between the boarding of their ship and its arrival in Brest had not been “lawful”, for lack of a legal basis of the requisite quality to satisfy the general principle of legal certainty. The Court therefore held by ten votes to seven that there had been a violation of Article 5 § 1.

Article 5 § 3 – The Court reiterated that Article 5 was in the first rank of the fundamental rights that protected the physical security of an individual, and that three strands in particular could be identified as running through the Court’s case-law: strict interpretation of the exceptions, the lawfulness of the detention and the promptness or speediness of the judicial controls, which must be automatic and must be carried out by a judicial officer offering the requisite guarantees of independence from the executive and the parties and with the power to order release after reviewing whether or not the detention was justified. While the Court had already noted that terrorist offences presented the authorities with special problems, that did not give them carte blanche to place suspects in police custody, free from effective control. The same applied to the fight against drug trafficking on the high seas. [***] At the time of its interception the [ship] had been off the coast of the Cape Verde islands, and therefore a long way from the French coast. There was nothing to indicate that it had taken any longer than necessary to escort it to France, particularly in view of the weather conditions and the poor state of repair of the vessel, which made it impossible for it to travel any faster. In view of these “wholly exceptional circumstances”, it had been materially impossible to bring the applicants before the investigating judges any sooner, bearing in mind that they had been brought before them eight or nine hours after their arrival, a period which was compatible with the requirements of Article 5 § 3. The Court therefore held by nine votes to eight that there had been no violation of Article 5 § 3.”

Click here for the EJIL: Talk! analysis by Douglas Guilfoyle.

Click here for the Press Release from the Registrar.

Click here (EN) or here (FR) for the Decision of the Grand Chamber.