EHRM, 29-03-2010, nr. 3394/03

The relevant provisions 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’, as amended 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’, read as follows (version applicable at the material time):

In the version amended by Law no. 2005-371 of 22 April 2005, which was not applicable at the material time, Section 12 also refers to ships flying the flag of a State which is not party to the Vienna Convention:

In order to allow for the period of transit subsequent to a decision to reroute a vessel, Law no. 2005-371 of 22 April 2005 amended Article L. 1521-5 of the Defence Code, in the chapter on ‘exercise of the State's law enforcement powers at sea’, by adding the following final sentence:

In its report on the draft of this law the Foreign Affairs Committee stated (extract from report no. 280, dated 6 April 2005):

The applicants, who shared the analysis followed by the Chamber in its judgment, considered that the action taken by the French authorities on the high seas and their detention on board the Winner had no legal basis. They submitted that there was no legal basis for the boarding of the Winner either in international conventions to which Cambodia was not a party, be it the Montego Bay Convention of 10 December 1982 or the Vienna Convention of 20 December 1988, or in the diplomatic note of the Ministry of Foreign Affairs of 7 June 2002.

They argued that Article 108 of the Montego Bay Convention was not applicable in this case because, in their submission, it was not Cambodia, the flag State, that had requested the cooperation of France, but France that had taken the initiative of requesting authorisation to stop a ship flying the Cambodian flag. The fact that Cambodia granted that request could not be likened to a request for cooperation within the meaning of Article 108 of the Montego Bay Convention. As to Article 110 of that convention, they submitted that the Government were proposing an interpretation which distorted its meaning, as the Winner had not been without nationality and had not had the same nationality as the French warship.

The applicants also considered that Law no. 94-589 of 14 July 1994 was not applicable, particularly because it referred to international conventions to which Cambodia was not a party.

They considered it established that domestic and international law failed to afford effective protection against arbitrary interference when it did not provide for the possibility of contacting a lawyer or family member but did, according to the Government, authorise thirteen days' detention.

Concerning the diplomatic note of 7 June 2002, the applicants also challenged the Government's legal interpretation. They maintained that it could not be considered as a delegation of jurisdiction to France. Even assuming, for argument's sake, that such an ad hoc agreement did justify French intervention in keeping with the principle of public international law that a State could relinquish part of its sovereignty other than by a convention, they alleged that the limits of such an exceptional transfer of power had been considerably exceeded in the present case. According to the Government's own submissions, the agreement had merely concerned a ‘request to intercept’, while the Cambodian Government had only authorised the ‘stopping’ of the ship (‘arraisonnement’ in French). Strictly speaking this consisted solely in stopping the ship at sea or on arrival in port to make certain verifications (concerning its identity and its nationality, for example): it did not extend to searches or arrests on board the ship. Yet that was what had happened in this case: the applicants had been arrested and confined to their cabins for thirteen days. Their detention on board the Winner and their judgment in another country had not been authorised by Cambodia. The applicants thus challenged the existence of any ad hoc agreement justifying the stopping of the Winner and considered that even if there had been such an agreement, it did not justify the detention of the crew following the French military operation.

The applicants further submitted that the production before the Grand Chamber of a diplomatic note dated 9 September 2008, sent by the Cambodian authorities at the request of the French Government seven years after the events and two months after the Fifth Section of the Court had pronounced judgment in their favour, was ‘very late and quite astounding’. They requested that the note, which had never been produced in the proceedings before the domestic courts and the Fifth Section of the Court, as it had not existed at the time and amounted to a reinterpretation of the facts after the event, be disallowed as evidence.

In their preliminary observations the Government stressed that the events in this case had taken place on the high seas, so that it was necessary to take into account the specificities of the maritime environment and of navigation at sea. In the Government's submissions this had two specific consequences. First of all, the Convention was completely silent about maritime matters and the Government argued that it was possible to draw a parallel with the solution adopted by the Court in cases concerning the handing over of persons by one State to another in the context of extradition (Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005-IV; Freda v. Italy, (dec.), no. 8916/80, Commission decision of 7 October 1980, Decisions and Reports (DR) 21, p. 250; Altmann (Barbie) v. France, (dec.), no. 10689/83, Commission decision of 4 July 1984, DR 37, p. 225; and Sánchez Ramirez v. France, (dec.), no. 28780/95, Commission decision of 24 June 1996, DR 86-A, p. 155). The Government considered that ‘the same reasoning, mutatis mutandis, could be applied in this case’ for want of any provision in the Convention concerning arrangements for rerouting ships, or specific provisions concerning maritime matters, which made the Convention inapplicable ratione materiae.

Secondly, they submitted that freedom to come and go on board a ship had more restrictive limits, which were the confines of the ship itself: the lawful rerouting of a ship therefore necessarily authorised restrictions on the movements of the people on board; the specificities and the risks of navigation at sea justified the extensive powers enjoyed by ships' captains. The Government inferred that the applicants had not been deprived of their liberty within the meaning of Article 5 but had been subjected to restrictions of liberty that were justified, restrictions they were challenging on a purely formalistic and litigious basis. The Government submitted that Article 5 of the Convention was not applicable in the present case.

In the alternative, on the merits, the Government submitted that the deprivation of liberty imposed on the applicants for the thirteen days during which the Winner had been rerouted had been lawful, and disputed the findings of the Chamber.

The lawfulness of the measure had to be examined from two points of view, that of public international law and that of domestic law.

With regard to public international law, the Government pointed out that the Winner had been flying no flag and had refused to identify itself. The ship's crew had therefore deliberately placed itself in the situation provided for in Article 110 of the Montego Bay Convention, which provided expressly for a warship to be able to stop a ship that is ‘refusing to show its flag’, a principle unanimously accepted under the law of the sea.

The Government considered in any event that the agreement given by Cambodia to the French authorities by diplomatic note had made the intervention of the French navy perfectly lawful from the international law perspective. The Montego Bay Convention well illustrated the signatory States' aim of ‘cohabitation’ in what belonged to all and yet to none, by strictly defining the conditions in which a State could interfere with another State's sovereignty by having a naval vessel inspect a ship flying a foreign flag. And although Cambodia was not a party to the Vienna Convention of 1988, the agreement that sovereign State had given by diplomatic note had been self-sufficient with regard to the principles of public international law and the law of the sea. The diplomatic note of 7 June 2002 had authorised the stopping of the ship and all ‘its consequences’, as confirmed by the Cambodian authorities in their note of 9 September 2008. In such circumstances the agreement concerned had provided a legal basis for the rerouting of the Winner and its crew.

The Government submitted in addition that the agreement concerned had been fully in compliance with the requirements of public international law. The damage caused by drug trafficking in democratic societies explained why Article 108 of the Montego Bay Convention, the Vienna Convention of 1988 and the Council of Europe agreement of 31 January 1995 all provided for the requisite cooperation between States to put a stop to the traffic. As the sea could be a ‘safe haven’ (Öcalan cited above, § 88) for traffickers, international law had provided for the flag State to be able to delegate its power to combat this type of crime. The Government further noted that in the Rigopoulos case the Court had found that the verbal agreement given to Spain by Panama had been sufficient to make the operations lawful under public international law.

With regard to domestic law, the Government contested the Chamber's analysis, pointing out that according to the Court's case-law it was first and foremost for the domestic authorities to interpret and apply their country's law, especially when, as in this case, what was in question was not the substance of the law but its scope. They submitted that in any event the Investigation Division had not based its findings solely on Article 17 of the Vienna Convention, but also on the general provisions of the Law of 1994, which empowered commanders of naval vessels responsible for surveillance at sea to carry out, or have carried out ‘inspection and coercion measures’. They accordingly considered that that part of the law had provided a legal basis for the measures complained of, because the ship was suspected of drug trafficking and because it had been flying no flag, had refused to identify itself and had responded aggressively by making dangerous manoeuvres.

The Government set great store by two factors. First, a State not party to a convention could, by special agreement, in given circumstances, consent to the application of provisions of the convention concerned, and the French courts had thus been able to find that French law should apply. Secondly, French law applied because the Winner had been flying no flag and had refused to identify itself.

As to the quality of the legal basis, which the Chamber had questioned, the Government maintained that the specificity of the law of the sea had to be taken into consideration to appreciate the precise meaning of the legal standards; the French law of 1994, in conjunction with Cambodia's agreement in conformity with the provisions of Article 17.4 of the Vienna Convention and the Montego Bay Convention, had authorised the rerouting of the ship. So, as the law provided for the ship to be rerouted, it also provided for restriction of the freedom of movement of those on board, as the two were inseparable. According to the Government, the rerouting was nevertheless to be considered as a preliminary to the suspects being brought before the judicial authorities.

In any event, the unpredictability of navigation and the vastness of the oceans made it impossible to provide in detail for every eventuality when ships were rerouted. The Government considered that the allegation that it had not been possible for the applicants to contact a relative or a lawyer was unfounded, as the technical conditions for such contact were not always available; besides, as the applicants had not established that they had been in contact with their families or their lawyers prior to the interception by the French navy, their practical situation had not been altered by the rerouting of their ship. The Government also pointed out that the length of the voyage had merely been a material contingency and that the applicants had not been questioned during the thirteen days spent on board, naval personnel having no power to take such action. Accordingly, the Government considered that the right to contact a lawyer or a family member would have been theoretical and illusory.

The Government then broached the matter of supervision by the public prosecutor. They argued that the Chamber judgment confused the notions referred to in paragraphs 1 (c) and 3 of Article 5 of the Convention, while noting that the applicants were to be presented, when they arrived in Brest, not to the public prosecutor but to an investigating judge.

They saw the fact that the rerouting of the ship had been carried out under the supervision of the public prosecutor as a guarantee against arbitrary treatment, arguing that in view of the guarantees of independence public prosecutors offered, they should be considered judicial authorities. On this last point the Government developed arguments demonstrating the guarantees of the independence of public prosecutors in terms of their status, the way they were recruited, their powers and their institutional role. They pointed out, in particular, that Article 64 of the French Constitution enshrined the independence of the ‘judicial authority’ and that the Constitutional Council had found that the said judicial authority included both judges and public prosecutors.

The Court considers that the first question to be decided in this case is whether the events in dispute, from the stopping of the Winner on the high seas and throughout the thirteen days of alleged deprivation of liberty until the ship reached Brest, brought the applicants within the jurisdiction of France for the purposes of Article 1 of the Convention, which reads as follows:

Article 1 sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to ‘securing’ (‘reconnaître’ in the French text) the listed rights and freedoms to persons within its own ‘jurisdiction’. Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others v. Belgium and 16 other Contracting States (dec.) [GC], no. 52207/99, § 66, ECHR 2001-XII).

In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them for the purposes of Article 1 of the Convention (see Banković, cited above, § 67, and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 314, ECHR 2004-VII). In its first Loizidou judgment (preliminary objections), for example, the Court found that bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party might also arise when as a consequence of military action — whether lawful or unlawful — it exercised effective control of an area outside its national territory (see Loizidou v. Turkey (preliminary objections) [GC], 23 March 1995, § 62, Series A no. 310). This excluded situations, however, where — as in the Banković case — what was at issue was an instantaneous extraterritorial act, as the provisions of Article 1 did not admit of a ‘cause-and-effect’ notion of ‘jurisdiction’ (Banković, § 75).

Additionally, the Court notes that other recognised instances of the extraterritorial exercise of jurisdiction by a State include cases involving the activities of its diplomatic or consular agents abroad and on board aircraft and ships registered in, or flying the flag of, that State. In these specific situations, customary international law and treaty provisions have clearly recognised and defined the extraterritorial exercise of jurisdiction by the relevant State (see Banković, cited above, § 73).

In the instant case, the Court notes that a French warship, the frigate Lieutenant de vaisseau Le Hénaff, was specially instructed by the French naval authorities to intercept the Winner, and that the frigate sailed out of Brest harbour on that mission carrying on board the French Navy commando unit Jaubert, a special forces team specialised in boarding vessels at sea. When the Winner was spotted off Cape Verde on 13 June 2002, the frigate issued several warnings and fired warning shots, before firing directly at the merchant ship, under orders from France's Maritime Prefect for the Atlantic. When they boarded the Winner, the French commando team were obliged to use their weapons to defend themselves, and subsequently kept the crew members under their exclusive guard and confined them to their cabins during the journey to France, where they arrived on 26 June 2002. The rerouting of the Winner to France, by decision of the French authorities, was made possible by sending a tug out of Brest harbour to tow the ship back to the French port, escorted by another warship, the frigate Commandant Bouan, all under orders from the Maritime Prefect and at the request of the Brest Public Prosecutor.

That being so, the Court considers that, as this was a case of France having exercised full and exclusive control over the Winner and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France, the applicants were effectively within France's jurisdiction for the purposes of Article 1 of the Convention (contrast Banković, cited above).

The Court notes at the outset that the Government contended for the first time before the Grand Chamber, in ‘preliminary observations’, that the applicants' complaints were incompatible ratione materiae with the provisions of Article 5 of the Convention, their observations on the merits being submitted only ‘in the alternative’.

The Grand Chamber reiterates that it is not precluded from deciding in appropriate cases questions concerning the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible ‘at any stage of the proceedings’ (see Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003-III; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III; Yumak and Sadak v. Turkey [GC], no. 10226/03, § 72, 8 July 2008; and Mooren v. Germany [GC], no. 11364/03, § 57, ECHR 2009-…). Under Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its observations on the admissibility of the application submitted as provided in Rule 54 (compare N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X; Azinas, cited above, §§ 32 and 37; Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006-II; and Mooren cited above). Only exceptional circumstances, such as the fact that the grounds for the objection of inadmissibility came to light late in the day, can dispense a government from the obligation to raise their objection in their observations on the admissibility of the application before the adoption of the Chamber's admissibility decision (see N.C., cited above, § 44; Sejdovic, cited above, § 41; and Mooren cited above).

In the instant case the Court notes that, in the written observations on admissibility which they submitted to the Chamber, the Government did not argue that the complaints were incompatible ratione materiae with the provisions of Article 5 of the Convention, and the Court can discern no exceptional circumstance capable of dispensing the Government from raising that objection in their observations to the Chamber on admissibility.

The Government are accordingly estopped from raising a preliminary objection of incompatibility ratione materiae at this stage in the proceedings. In spite of this estoppel, however, the Court must examine this question, which goes to its jurisdiction, the extent of which is determined by the Convention itself, in particular by Article 32, and not by the parties' submissions in a particular case (see Demir and Baykara v. Turkey [GC], no. 34503/97, ECHR 2008-…).

First of all, referring also to its finding that the applicants were within the jurisdiction of France for the purposes of Article 1 of the Convention, the Court considers that the preliminary observations on the applicability of Article 5 actually concern the merits of the application.

As to the observations concerning the existence or otherwise of the deprivation of liberty, the Court reiterates that Article 5 — paragraph 1 of which proclaims the ‘right to liberty’ — is concerned with a person's physical liberty. Its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of Article 5 the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see Amuur v. France, 25 June 1996, § 42, Reports of Judgments and Decisions 1996-III). The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance (see Guzzardi v. Italy, 6 November 1980, Series A no. 39, and Amuur, cited above).

In the Court's opinion, while it is true that the applicants' movements prior to the boarding of the Winner were already confined to the physical boundaries of the ship, so that there was a de facto restriction on their freedom to come and go, it cannot be said, as the Government submitted, that the measures taken after the ship was boarded merely placed a restriction on their freedom of movement. The crew members were placed under the control of the French special forces and confined to their cabins during the voyage. True, the Government maintained that during the voyage the restrictions were relaxed. In the Court's view that does not alter the fact that the applicants were deprived of their liberty throughout the voyage as the ship's course was imposed by the French forces.

Accordingly, the Court concludes that the applicants' situation on board the Winner after it was boarded, because of the restrictions endured, amounted in practice to a deprivation of liberty, and that Article 5 § 1 applies to their case.

The applicants argued that the case-law of the Court has always emphasised the importance of the provisions of Article 5 § 3 of the Convention and the need for the Contracting States to have a legal framework that offers sufficient guarantees against arbitrary deprivation of liberty. They submitted that the ‘exceptional circumstances’ found in the Rigopoulos case (cited above) had not been established in their case: inevitable duration of the sea voyage, deprivation of liberty under the supervision of a ‘judge or other officer authorised by law to exercise judicial power’ within the meaning of Article 5 § 3 of the Convention and immediate presentation before a judge upon landing.

They contended that exceptional circumstances could justify failure to bring a person promptly before a judge only if the detention was supervised and controlled by a legal authority, which was not the case here. The applicants considered that the reasons given by the Chamber in its judgment (§ 68) were insufficient and left some important questions unanswered. They objected to the argument concerning ‘the time it inevitably took the Winner to reach France’ in so far as they could have been repatriated on the French frigate instead of the Winner, which was in a deplorable state of repair.

The applicants further complained that after thirteen days of detention at sea they had been held in police custody for two or three days before being presented before a judge or other officer authorised by law to exercise judicial power, and finally all placed under investigation and remanded in custody, regardless of their degree of involvement in the traffic.

As well as disputing the fact that police custody helped to protect individual freedoms and the rights of the defence, because they had had no access to the case file and had been unable to consult a lawyer before the seventy-second hour, they complained that they had not been brought before the liberties and detention judge as soon as they arrived in Brest. On this point they noted that the interception had been planned for several weeks and the investigation opened no later than 24 June 2002: the two or three extra days in police custody had therefore been unnecessary. In view of the thirteen days' deprivation of liberty on board the Winner, those two or three extra days were not in compliance with the requirement of promptness enshrined in Article 5 § 3.

In any event the circumstances of the present case differed from the ‘exceptional circumstances’ that justified the Rigopoulos judgment. While noting that the Spanish authorities had acted legally in boarding a ship flying a Panamanian flag, Spain and Panama being Parties to the Vienna Convention of 1988, the applicants objected to the fact that their detention on the ship had not been under the supervision of a ‘judge or other officer authorised by law to exercise judicial power’ but under that of the public prosecutor, who was not such an officer according to the Court's case-law (Schiesser v. Switzerland, 4 December 1979, Series A no. 34; Huber v. Switzerland, 23 October 1990, Series A no. 188; and Brincat v. Italy, 26 November 1992, Series A no. 249-A), in particular because of his lack of independence vis-à-vis the executive. They maintained that the purely formal criterion relied on by the Government was ineffective in the light of the functional criterion developed by the Court in its case-law, as confirmed in the Chamber judgment. Thus, unlike the Spanish authorities in the Rigopoulos case, where the deprivation of liberty had been decided by the Central Investigating Court, an officer authorised by law to exercise judicial power within the meaning of Article 5 § 3 of the Convention, by means of a promptly issued, duly reasoned detention order, the French authorities had made no attempt to regularise the applicants' situation. Yet their ship was not an ‘area outside the law’, especially considering that an investigating judge could have been contacted by radio, and the crew could have been informed of their rights and allowed to contact a lawyer and alert a family member. In addition to the resulting alleged violation of Article 5 § 3, the applicants, referring to the partially dissenting opinion expressed by three of the Chamber's judges, pointed out that they had had to wait another two or three days to be brought before the liberties and detention judge .

The Government denied that the applicants had had to wait two or three days after arriving in Brest before they were brought before a judge or other officer authorised by law to exercise judicial power within the meaning of Article 5 § 3. They contended — producing the official reports for the first time before the Grand Chamber — that the applicants had in fact all been presented that very day, only hours after their arrival in Brest, to an investigating judge who had the power to order their release. They further argued that in any event the initial application to the Court concerned only the period of thirteen days it took to reroute the ship to France.

The Government reiterated that the notion of promptness had been clarified in the Brogan case (Brogan and Others v. the United Kingdom, 29 November 1988, Series A no. 145-B), and confirmed recently in McKay (McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006-X). They contended, inter alia, that in the Rigopoulos case the Court had found that it was necessary to examine each case with reference to its particular characteristics in order to determine whether the authorities had complied with the requirement of promptness, while pointing out that it had been materially impossible to bring the applicant before the investigating judge any sooner and that the applicant had been presented to the investigating judge the day after his arrival on Spanish soil.

The Government also considered that in its McKay judgment the Court had accepted derogations from the principle of the automatic nature of the review.

Concerning the characteristics and powers of the officer concerned, the Government maintained that although the Court had found that a public prosecutor or other judicial officer appearing for the prosecution could not be considered a ‘judge’ for the purposes of Article 5 § 3 (see Huber, cited above), the same could not be said of an investigating judge. Investigating judges were fully independent judges whose job was to seek evidence both for and against the accused party, without participating in the prosecution or the judgment of the cases they investigated. In France the investigating judge supervised all custodial measures taken in the cases under his responsibility — be it police custody or detention pending trial — and could terminate them at any time. Although he had to apply to the liberties and detention judge when contemplating remanding a suspect in custody, he had full power to release people or place them under court supervision. The Government pointed out that the Court had already ruled that the investigating judge fulfilled the conditions laid down in Article 5 § 3 (A.C. v. France (dec.), no. 37547/97, 14 December 1999).

The Government affirmed that the applicants had been brought before the investigating judges, without having had to ask, the same day they arrived in Brest, as soon as had been possible.

Lastly, the Government considered that the public prosecutor was a legal authority independent of the executive, and that his supervision while the Winner was rerouted to Brest had provided the protection against arbitrariness which Article 5 of the Convention was meant to guarantee.

The Court reiterates that Article 5 of the Convention is in the first rank of the fundamental rights that protect the physical security of an individual, and that three strands in particular may be identified as running through the Court's case-law: the exhaustive nature of the exceptions, which must be interpreted strictly and which do not allow for the broad range of justifications under other provisions (Articles 8–11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, procedurally and substantively, requiring scrupulous adherence to the rule of law; and the importance of the promptness or speediness of the requisite judicial controls under Article 5 §§ 3 and 4 (see McKay, cited above, § 30).

The Court also notes the importance of the guarantees afforded by Article 5 § 3 to an arrested person. The purpose of this provision is to ensure that arrested persons are physically brought before a judicial officer promptly. Such automatic expedited judicial scrutiny provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill-treatment (see, among other authorities, Brogan and Others, cited above, § 58;Brannigan and McBride v. the United Kingdom, judgment of 26 May 1993, Series A no. 258-B, p. 55, §§ 62–63; Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999-III; Dikme v. Turkey, no. 20869/92, § 66, ECHR 2000-VIII; and Öcalan v. Turkey, no. 46221/99 , § 103, ECHR 2005-IV).

Article 5 § 3, as part of this framework of guarantees, is structurally concerned with two separate matters: the early stages following an arrest, when an individual is taken into the power of the authorities, and the period pending any trial before a criminal court, during which the suspect may be detained or released with or without conditions. These two limbs confer distinct rights and are not on their face logically or temporally linked (see T.W. v. Malta [GC], no. 25644/94, § 49, 29 April 1999).

Taking the initial stage under the first limb, which is the only one at issue here, the Court's case-law establishes that there must be protection, through judicial control, of an individual arrested or detained on suspicion of having committed a criminal offence. Such control serves to provide effective safeguards against the risk of ill-treatment, which is at its greatest in this early stage of detention, and against the abuse of powers bestowed on law enforcement officers or other authorities for what should be narrowly restricted purposes and exercisable strictly in accordance with prescribed procedures. The judicial control must satisfy the following requirements (see McKay, cited above, § 32):

The Court notes that the arrest and detention of the applicants began with the interception of the ship on the high seas on 13 June 2002. The applicants were not placed in police custody until 26 June 2002, after arriving in Brest. Before the Grand Chamber, and for the first time since the proceedings began — which the Court can only find regrettable — the Government submitted substantiated information concerning the presentation of the applicants, at the end of the day, to the investigating judges in charge of the case (see paragraph 19 above).

The fact remains that the applicants were not brought before the investigating judges — who may certainly be described as ‘judge[s] or other officer[s] authorised by law to exercise judicial power’ within the meaning of Article 5 § 3 of the Convention — until thirteen days after their arrest.

The Court points out that in the Brogan case it held that a period of detention in police custody amounting to four days and six hours without judicial review fell outside the strict constraints permitted by Article 5 § 3, even though it was designed to protect the community as a whole from terrorism (see Brogan and Others, cited above, § 62). It also found a period of seven days without being brought before a judge incompatible with Article 5 § 3 (see Öcalan, cited above, §§ 104–105).

The Court observes, however, that it did accept, in the Rigopoulos decision (cited above), which concerned the interception on the high seas by the Spanish customs authorities, in the context of an international drug trafficking investigation, of a ship flying the Panamanian flag and the detention of its crew for as long as it took to escort their ship to a Spanish port, that a period of sixteen days was not incompatible with the notion of ‘promptness’ required under Article 5 § 3 of the Convention, in view of the existence of ‘wholly exceptional circumstances’ that justified such a delay. In its decision the Court noted that the distance to be covered was ‘considerable’ (the ship was 5,500 km from Spanish territory when it was intercepted), and that a forty-three-hour delay caused by resistance put up by the ship's crew ‘could not be attributed to the Spanish authorities’. It concluded that it had been ‘materially impossible to bring the applicant physically before the investigating judge any sooner’, while taking into account the fact that once he had arrived on Spanish soil the applicant had been immediately transferred to Madrid by air and brought before the judicial authority on the following day. Lastly, the Court considered ‘unrealistic’ the applicant's suggestion that, under an agreement between Spain and the United Kingdom to prevent illicit traffic in narcotic drugs, instead of being diverted to Spain the ship could have been taken to Ascension Island, which was approximately 1,600 km from where it was intercepted.

In the present case the Court notes that at the time of its interception the Winner was also on the high seas, off the coast of the Cape Verde islands, and therefore a long way from the French coast, comparable to the distance in the Rigopoulos case. There was nothing to indicate that it took any longer than necessary to escort it to France, particularly in view of the weather conditions and the poor state of repair of the Winner, which made it impossible for it to travel any faster. In addition, the applicants did not claim that they could have been handed over to the authorities of a country nearer than France, where they could have been brought promptly before a judicial authority. As to the idea of transferring them to a French naval vessel to make the journey faster, it is not for the Court to assess the feasibility of such an operation in the circumstances of the case, particularly as it has not been established that the frigate was capable of accommodating all the crew members in sufficiently safe conditions.

The Court notes lastly that the applicants were placed in police custody at 8.45 a.m. on 26 June 2002 and effectively brought before an investigating judge at the police station in Brest, according to the reports produced by the Government, between 5.05 and 5.45 p.m. in the case of the first judge and at undocumented times in the case of the second judge (see paragraph 19 above), it being understood that the applicants do not dispute the fact that the meetings with the second judge took place at about the same time. This means that after arriving in France the applicants spent only about eight or nine hours in police custody before they were brought before a judge.

That period of eight or nine hours was perfectly compatible with the concept of ‘brought promptly’ enshrined in Article 5 § 3 of the Convention and in the Court's case-law.

Accordingly, there has been no violation of Article 5 § 3.