ECHR Rights at Sea: Medvedyev and others v. France

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Dr Douglas Guilfoyle is a Lecturer in Law at University College London.  His research has focussed on the law of the sea and international and transanational criminal law. His book Shipping Interdiction and the Law of the Sea was published by Cambridge University Press in 2009. His previous EJIL Talk! posts can be found by clicking on his name in the tab on the right.

The application of the European Convention on Human Rights (ECHR) to law-enforcement operations at sea raises a number of issues concerning the scope of the ECHR’s extra-territorial application and how ECHR rights are to be interpreted and applied extra-territorially. The limited case law to date has concerned maritime migrant and narcotics smuggling, but has significant implications for counter-piracy operation in the Gulf of Aden, an issue I have explored in a recent article in the Int. & Comp. Law Quarterly (see here).

We now have a European Court of Human Rights (ECtHR) Grand Chamber authority on point, Medvedyev v France (Application no. 3394/03), which illuminates some of these issues. In Medvedyev French authorities interdicted a Cambodian vessel (inaptly named the Winner) suspected of drug smuggling on the basis of Cambodian consent; those aboard were confined aboard during the 13 day voyage into a French port. The suspects were later convicted in France of drug-smuggling offences and brought proceedings before the ECtHR challenging the legality of their detention at sea and the delay involved in bringing them before a court under articles 5(1) and (3), ECHR. An earlier ECtHR case, Rigopoulos, similarly involved a Spanish high-seas interdiction of drug smugglers and a 16-day voyage to port. In both cases the Court held that such delays, where materially impossible to avoid, did not violate ECHR article 5(3). In Medvedyev, however, a violation of article 5(1) was found. France appealed to the Grand Chamber, and the decision was handed down on 29 March 2010. The Grand Chamber held, unanimously, that the applicants were within the jurisdiction of France; upheld, by 10 votes to seven, the decision that there had been a violation of article 5(1); and denied (by nine votes to eight) the claim that there had been a violation of article 5(3). The focus here will be on the jurisdictional and article 5(1) issues.

Extra-territorial application of the ECHR

The Grand Chamber shed little new light on the ECHR’s extra-territorial application (paras 63-66). It reiterated the Banković proposition that the ECHR’s extra-territorial application based on State jurisdiction is exceptional. It did not cite any State agent authority and control cases, but did note that exceptionally “the acts of the Contracting States performed or producing effects, outside their territories can constitute an exercise of jurisdiction”. It then resorted to the rather tired line that “clearly defined and recognised” cases of extra-territorial jurisdiction at international law included consular activities abroad and jurisdiction over flag vessels. Without more it concluded that French special forces boarding the Winner constituted an exercise of jurisdiction engaging the ECHR. It is hard to fault the result, but the lack of intermediate logic is odd given the judgment’s stress elsewhere on the ordinary rule of exclusive flag State jurisdiction. What in the act of placing forces aboard a foreign vessel (with flag State consent) transforms that vessel into a space analogous to an embassy or those forces into officials similar to consular agents? The desire to avoid the issue seems creakingly obvious. Nonetheless, it now seems firmly established that exercising coercive law-enforcement jurisdiction over a foreign vessel on the high seas will bring it within ECHR jurisdiction.

Article 5(1): was detention arbitrary?

The difficulty for France arose from the fact that its domestic legislation at the time covering drug interdictions at sea was designed only to implement interdictions authorised by a flag State pursuant to the UN Narcotics Convention 1988, to which Cambodia was not a party. Nor was Cambodia a party to the UN Law of the Sea Convention 1982 (UNCLOS). The only legal basis for the French action was an exchange of diplomatic notes. The Grand Chamber’s analysis (paras 82-103) was essentially concerned with two matters: that there was clear legal authority for the action either at French law or international law; and that the relevant law satisfied a quality of “foreseeability” (ie that those to whom it was applied could have predicted its application).

On the first point the Grand Chamber noted, as above, that textually the French statute did not apply on the facts. However, it then gratuitously observed that as the vessel was not French, the nationals aboard were not French and as Cambodia was not party to any relevant treaty – there was no basis to apply French law to the vessel. All State practice in counter-drug and counter-piracy operations is to the contrary: where a flag State waives its exclusive jurisdiction, the interdicting State is competent to apply its laws to the foreign vessel. While this is generally stipulated in treaty, treaties could not grant a jurisdiction prohibited by general international law. The consent of the flag State is the vital part, a treaty being only one mode to express it.

The Grand Chamber did accept that the diplomatic note was a source of international law capable of justifying the French interdiction. The note did not, however, sufficiently clearly specify a right to detain the crew. It granted power only to “intercept, inspect and take legal action against” the ship.

Further, even had it dealt with the crew expressly, the note would not have met the “foreseeability” criterion, giving the suspects notice they might be subject to French law. In fact, only a bilateral or multilateral treaty could ever suffice in such cases to give adequate notice and prevent the application of foreign law being arbitrary (para 100).

It is instructive to contrast the Grand Chamber’s approach with the first ECtHR judgment of 2008. Both essentially agreed that the diplomatic note was the governing legal text and that it was deficient for not expressly authorising the crew’s detention. However, as regards the requisite “quality” of the law they focussed on different things. While the Grand Chamber focussed on the standard of foreseeability, the Court at first instance was more concerned with procedural safeguards. The Court in 2008 held that that detention was arbitrary as both the invoked provisions of French and international law failed to: “regulate the conditions of deprivation of liberty on board ship, and in particular the possibility for the persons concerned to contact a lawyer or a family member. Nor do they place the detention under the supervision of a judicial authority” (para 61). Similar concerns are found in the eight-judge partial dissenting opinion of Judge Tulkens et al in the Grand Chamber arguing for quite a strict application of articles 5(1) and (3) to maritime interdictions, especially regarding judicial supervision of detention, notification of detention to family members and access to legal advice – all of which were apparently made available at sea in Rigopolous (para 5).


An optimistic reading of Medvedyev suggests that the standard to be met for article 5(1) foreseeability is something close to the UNCLOS piracy provisions. Indeed, the Grand Chamber laments that the international community has not concluded a general instrument providing an exception to flag State jurisdiction and universal jurisdiction over drug smuggling in similar terms to the law of piracy (para 101). European States conducting counter-piracy operations might thus feel reasonably confident that they have legal authority to detain suspects and have more than usual latitude in bringing such suspects “promptly” before a judge.

This may, however, be overly optimistic. There is a clear strain of thought in the 2008 judgement and the Grand Chamber’s eight-judge partial dissent that even on the high seas judicial supervision of detention, communication with family and access to a lawyer are indispensible guarantees. Indeed, the Grand Chamber judgement does not expressly indicate anywhere that “foreseeability” was the only reason France’s appeal failed. It could thus remain open to the Court in future cases to apply these further article 5 criteria in addition to foreseeability.

On any view, the bad news is that the relatively common practice of ad hoc interdiction authorised by diplomatic note cannot, it seems, satisfy article 5(1) under any circumstances.

The partially dissenting opinion of Judges Costa et al makes a number of excellent points in this regard. Their essential view is that a certain realism is required when considering international cooperation to suppress drug trafficking and maritime operations thousands of miles out to sea. First, the Winner’s crew obviously knew what they were doing was wrong and could result in criminal punishment. Second, interpreting a diplomatic note governed by public international law as strictly as one would a domestic statute was unwarranted. Third, it was in any event artificial to hold that authorising legal proceedings against the ship did not authorise proceedings against the crew as it is “scarcely possible to dissociate the crew from the ship itself” on the high seas. This would appear a very sensible view of how a regional human rights court “which operates in the general field of public international law” should approach extra-territorial issues and give effect to the value of international co-operation (as expressed in ECtHR case law).

 While something of a mixed blessing, the decision can be seen as generally supportive of maritime law enforcement operations – so long as there is an underlying treaty that clearly contemplates criminal sanctions. Nonetheless, States would be wise to contemplate what practical measures could be taken to ensure judicial supervision of detention at sea and to allow suspects’ families to be informed and even for legal advice to be provided. There are clearly many ECtHR judges who would apply the Strasbourg case law on point strictly, irrespective of the practical challenges that could present in many maritime law-enforcement operations.

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Julien Frisch says

April 19, 2010

Heavy stuff, I admit.

After reading the post I am not sure whether the judgement will ease the protection of human rights of people detained by a European state on the High Seas or whether it expanded the states' right to detain people without proper legal base.

JP says

April 20, 2010

What significance do you place on the description of Bankovic as a case about 'instantaneous' acts? Is this the beginning of a possible narrowing of Bankovic's scope?

Marko Milanovic says

April 20, 2010

This new 'instantaneous extraterritorial act' gloss of Bankovic may well be intended by the Court to enable it to distinguish more easily a 'mere' killing outside a territory under the state's control, which the Court deems insufficient to satisfy the Art. 1 ECHR jurisdiction threshold, from detention, as in Al-Saadoon, Ocalan, Sanchez Ramirez, and Medvedyev itself, in which the Art. 1 threshold was satisfied. Of course, not only is this 'instantaneous act' business lacking in any principle that I can see, but there are other ECtHR cases which concerned killings, but in which the Court found that the threshold WAS satisfied - e.g. Issa, Pad, Isaak, Solomou.

mr.drs. Reinier Feiner says

April 28, 2010

I've got the following case-study:

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?

Douglas Guilfoyle says

April 29, 2010

Thank you, this is very interesting. My first thought is any violations of Art 5 aboard a Danish warship would not be within the jurisdiction of the Netherlands. Therefore Art 1 could indeed be a bar to raising the issue. I would be very interested to hear what the court says.

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?

Marko Milanovic says

April 29, 2010

Well, this is certainly a tricky one. The main problem, of course, is in Strasbourg's failure to articulate a consistent approach to extraterritorial application, and the scope of Art. 1 ECHR and the notion of state jurisdiction.

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.

Marko Milanovic says

April 29, 2010

PS Of course, the separate issue is what the proper remedy in this situation would be, even if there was a violation of Art 5. And then there's the whole male captus, bene detentus stuff.

mr.drs. Reinier Feiner says

April 29, 2010

First of all, thanks for the interesting comments. It's a unique case. I'm representing one of the suspects. I'll study the case law Marko Milanovic points out.

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. 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. 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)

Douglas Guilfoyle says

April 29, 2010

I look very much forward to hearing what the Dutch courts make of the case.

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.

mr.drs. Reinier Feiner says

May 27, 2010

An update:

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