As you problably have read the trial has started. Interesting is that the prosecutor argued that Malta vs. Stephens doesn’t aply in this case. The prosecutors office argued the following:

The Danish captured and held the suspects on the sole basis of article 105 UNCLOS. Although the Dutch prosecutors filed an Eur.arrest.warrant on the 16th of januar the Danish corresponded that there was no need for a formal extradiction-procedure and just handed them over on the 10th of februar. The Danish based the capturering, detention and extradiction solely on 105 UNCLOS. They did not handle accordingly to there own criminal laws. Never giving the suspects a possibility to complain before a judge. If the Dutch court should argue they can’t take this preiod into account it would be a serious blow for human rights standards in policing the High Seas.

First at the point off handing the suspects over to the dutch police aboard the Danish ship on the 10th of februar they think they can be held responsible for any offence or valiation of human rights.

Offcourse the defense has argued that art.105 UNCLOS isn’t a sound base for detention after arrest and doesn’t exclude the working of the Danish criminal code and European treaty of human rights. Therefore, we argued, the whole period of detention or at least from the moment of the outgoing Eur.arrest warrant the Dutch prosecution office was responsible.

Not only for vialiation of art.5 but also art.6 ECHR.

Suggestions? (I think the prosecution office is also taking a look so a good comment will be working both ways!)

Kind regards,

Reinier Feiner

I do not agree with Prof Kontorovich on his interpretation of Article 105. In his more recent writings he considers it ambiguous and take a less absolute approach to the issue.

In my article mentioned at the top of this post, I take the view that:

“A further gap between articles 100 and 105 is that no express rule governs the transfer of suspected pirates from a seizing State to a nearby port State. Nonetheless, any State could accept such a transfer and assert universal jurisdiction over such received suspects. It has been argued against this that UNCLOS article 105 refers only to the seizing State’s adjudicative/curial jurisdiction. While correct, this does not preclude the existence of other valid jurisdictions nor prevent transfers between them. While the ILC commentary considered that this right ‘cannot be exercised at a place
under the jurisdiction of another State’, this only suggests a seizing State cannot exercize its own judicial powers in foreign territory. Nothing precludes a ‘receiving’ State exercising its own independent jurisdiction. Indeed, all relevant State practice supports such a power of transfer, though not a duty to accept transfers.”

The meaning of universal jurisdiction over piracy is that any State can prosecute any pirate found in their territory, however they got there (subject to rules of national law and human rights law). This power was not codified in UNCLOS but is not doubted as part of customary international law.

There is also clearly no duty on a capturing warship to prosecute pirates. There are arguable interpretations of UNCLOS to this effect, but little supporting State practice. Again, I cover this point in the article and my previous post on this blog about the law of piracy.

The trial starts at the 25th of may till 2th of june and the court (of rotterdam) will probably sentence a verdict the 16th of june.

The question I raise here is one in more interesting questions about the fairness of the procedure and the question: Is it possible to give the suspects a fair trial?

Also interesting is art.105 UNCLOS, while UNCLOS was the foundation for the Danish warship to detain the suspects and later the European Arrest Warrant. I had an interesting discussion with Eugene Kontorovich, who argues that UNCLOS gives the Danish the right to seize pirate ships but with it the duty to have them adjudicated upon by its courts.

(See rep. Intern.law comm. 8th session, 23-04july 1956, off.rec. of the General assembly, 11th session, supll no.9 (A/31590) extract yaerbook ILC 156, vol II. http://www.un.org/law/ilc/index.htm p.283: Commentary (art.43):”This article gives any State the right to seize pirate ships (and ships seized by pirates) and to have them adjudicated upon by its courts. This right cannot be exercised at a place under the jurisdiction of another State.”

Art. 1 should not be an effective bar to reject a claim on procedural fairness and the right to a fair trial. when the suspect didn’t have any possibillity to argue his extradition. It’s contradictory to the very goal of the ECHR-treaty: protecting human rights in Europe.

Next week I’ll be on holiday, but I’am back the 10th of may. If you are interested I can give un update about the trial (as far as this doesn’t affect the position of the defense off course)

As I see it from the facts you presented:

(1) Even though the freighter flew the Dutch flag, the arrest didn’t take place on it, so you can’t even use the supposedly special nature of ships and flag-state jurisdiction (which is actually NOT the Art. 1 ‘jurisdiction’, as Medvedyev amply demonstrates) to say that Art. 1 applies.

(2) The first act by the Dutch authorities that had an impact on the detainees was the European Arrest Warrant. This can be the only basis for Dutch jurisdiction.

(3) In that regard, the case you need to take a look at is Stephens v. Malta (no. 1), App. No. 11956/07, Judgment, 31 March 2009.

The applicant was a UK national living in Spain, who was suspected by Maltese authorities of having conspired with other persons in Spain to transport drugs to Malta. A warrant for his arrest was issued by a Maltese court, and he was detained in Spain following a request for his extradition. While still awaiting extradition in Spain, the applicant retained counsel in Malta who challenged the lawfulness of the arrest warrant before Maltese courts, inter alia on the grounds that the court which issued the warrant lacked jurisdiction over a non-Maltese national accused of committing a crime outside Malta. After several judicial instances, the original arrest warrant was found to have been procedurally defective, while in Spain the applicant was released on bail. However, after a new request for extradition was filed, the applicant was rearrested, extradited to Malta, and ultimately convicted on the criminal charges against him. Before the European Court, he challenged the lawfulness of his detention pending extradition in Spain – but he did so by claiming that MALTA, not SPAIN, had violated Article 5(1) ECHR.

This is, in other words, remarkably similar to your scenario. The Court actually found that Stephens was within Malta’s jurisdiction because ‘the applicant’s deprivation of liberty had its sole origin in the measures taken exclusively by the Maltese authorities pursuant to the arrangements agreed on by both Malta and Spain under the European Convention on Extradition.’ The paragraphs you need specifically are 48-52.

Note that the Court in Stephens doesn’t really explain while the issuance of a warrant is enough to bring a person within a state’s jurisdiction, even though he is in the custody of another state. In fact, the case – like your scenario – doesn’t really fit with any of the Court’s previous case law on extraterritoriality. The Court thus decided to cite and throw everything in as authority, the kitchen sink and all, from Bankovic and Behrami to Soering and Issa.

You’ll see also how the Court says that ‘it suffices to consider the matter of Malta’s jurisdiction solely in respect of the Article 5 complaints,’ thus seemingly going at odds with the Grand Chamber’s regime integrity-inspired holding in Bankovic that ‘the wording of Article 1 does not provide any support for the applicants’ suggestion that the positive obligation in Article 1 to secure “the rights and freedoms defined in Section I of this Convention” can be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question.’

Anyway, in short, this is the case you need – but the first two weeks of detention before the European Arrest Warrant would seem to be out, even on this basis.

I wonder whether requesting their transfer by a European Arrest Warrant changes matters? In common law jurisdictions there is a doctrine that courts may not allow a trial to proceed where custody has been irregularly obtained, but the violation of rights must be egregious and involve the complicity of prosecuting State. I am not sure these facts would meet that standard.

Marco, any ideas?

Danish warship arrests suspects of piracy in the Gulf of Aiden. They got a may-day from the turkish crew of a freighter under dutch flag. They take the suspects who have not reached the freighter onto their warship. After two weeks the Dutch prosecutor sends a European Arrest warrant. Two weeks later they are flowen in from the port of Yemen to the Netherlands.

The suspects did not receive legal asistance untill they reached the Netherlands. There wasn’t any danish judge who authorized the custody or transfer. Before the dutch court I want to argue that art.1 ECHR does not withhold the judge to take into account a violation of art.5 ECHR, because the suspects have not been able to argue their custody before a danish court. The prosecutor will argue that art.1 ECHR makes it impossible for the suspects to succesfully ask to take the violation into account. He will say, take your complains to the Danish authorities. But then the ECHR gives no effective remedy to the suspects due to the transfer to the Dutch authorities.

What do you think?