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I am very grateful to Zeki and Andrew for this opportunity to address the issue of the compliance

of bill 563 with the ECHR, notably with the Grand Chamber judgment in Medvedyev and Others v.
France (GC). I am also grateful to them for flagging the problematic issues concerning that bill in
an enlightening previous post.

As will be recalled, the Grand Chamber in Medvedyev found a violation of Article 5-1 of the
Convention because the arrest of the applicants had been unlawful, neither domestic nor
international law providing the French Navy with a sufficiently precise power to conduct the arrests
(§§ 91, 92, 100-103 of the judgment). The Court did not, however, find a violation of Article 5-3 on
account of the long delay between the arrests and the applicants being brought before a judge. 13
days had elapsed before the applicants had been (a) taken to a French port and (b) brought before a
judge there. This was undoubtedly, under the general standards of Article 5-3, far too long.
Nonetheless, a majority of the Grand Chamber accepted this length of detention without judicial
supervision, having regard to the exceptional circumstances of an arrest at sea (§§ 128-131 of the
judgment).

The French legislature now appears to have taken Medvedyev as its cue to enact a statutory regime
for arrests at sea. The important question is: has it succeeded in its attempt to secure compliance
with the ECHR?

The first question, directly relevant to the faults found in Medvedyev, is obviously whether there
now exists a sufficient legal basis for arrests at sea. On that point, I cannot fail to agree with the first
post on this issue: There needs to be a requirement of reasonable suspicion. Article 5-1-c expressly
allows for detention on the grounds of ‘reasonable suspicion of having committed an offence’, and
the Court has recorded that this requirement ‘forms an essential part of the safeguard against
arbitrary arrest and detention […] laid down in Article [5-1-c]’ (Fox, Campbell and Hartley v.
United Kingdom, § 32). It follows that any arrest not based on any ‘reasonable suspicion’ will be in
violation of Article 5-1-c (such a requirement also being inherent in the option of preventive
detention under that rule). More fundamentally, a statute authorising detention without any
requirement of reasonable suspicion will not be able to constitute lawful authority at all. It would
give the state far too much discretion, and thus introduce too much uncertainty to be able to count
as ‘law’ for the purposes of the Convention (cf. Gillan and Quinton v. United Kingdom (GC), §§ 76-
87). If, therefore, the new French statute did not require any reasonable suspicion, the requirement
of Medvedyev for a legal basis of arrests at sea would not be met.
I am not an expert in French law (by any stretch of the imagination). I see that the new Article 2 of
‘Loi n° 94-589’ requires ‘motifs raisonnables de soupçonner’ that offences had been or were about
to be committed. It may be questionable, however, if the arrests and detentions as such fall to be
qualified as ‘mesures de contrôle et de coercition’ under that article, and I note that the previous
post records that there is no requirement of just cause for an arrest. If that is the case, there is an
obvious problem, under Article 5-1 as under Article 46 read with Article 1.

The next question is that of the judicial supervision of detention. The judgment in Medvedyev itself
did not require that persons arrested at sea should be brought before a judge before their arrival in
port. That, however, was clearly expressed to be an exceptional conclusion. It would be unwise to
rely on that exceptional permission ad infinitum. Rather, now that the French legislature set out to
devise a statutory regime for detentions at sea, it was advisable to also create a possibility for
prompt judicial review. The fact that the legislature thus stepped in made it eminently possible to do
this, so it is likely that a refusal to bring in the judiciary would have attracted the criticism of the
European Court.

Now, has the new law indeed provided for judicial review? The new Article L-1521-14 of the Code
de la Défense provides that the judge of liberties and detention shall decide within 48 hours from
the beginning of the detention, on an application by the relevant officers and the procureur de la
République. I would tend to assume that this review is mandatory if the authorities wish to hold the
detainees for more than 48 hours. Otherwise, if the officers or the procureur had a discretion on
whether to apply to the judge, the time-limit – which runs from the time of the arrest, not the
application – would make little sense. It appears to me, therefore, that French law now goes beyond
Medvedyev in – quite rightly – including a form of prompt judicial review in the new statute.

Of course, Article 5-3 of the Convention also requires that the prompt judicial supervision should be
effective and have the qualities of proper judicial procedure about it. This implies that the judge
must generally hear the detainee in person and thus have the detainee actually, physically ‘brought
before’ him. Also, the judge must determine whether there really is a ‘reasonable suspicion’ against
the detainee and what are the circumstances militating for and against detention. The judge must
also be empowered to order the release of the detainee (Medvedyev and Others v. France (GC), §§
124, 125). It is therefore critical whether the review under Article L-1521-14 of the Code de la
Défense complies with these requirements.

There obviously is no provision for the judge to see the detainee in person. This is physically
impossible if the detainee is on board a ship and the judge is on French soil. The judge therefore can
only communicate with the detainee, except where that is technologically impossible. I imagine this
deviation from the normal requirements of Article 5-3 will be covered by the exceptional
circumstances on which the Grand Chamber had relied in an even more generous manner in
Medvedyev. The other questions as to the procedure under the Code de la Défense again raise issues
of construction under French law – on which, again, I can claim no expertise. The new Article L-
1521-15 provides that the judge may request from the procureur de la République ‘tous éléments de
nature à apprécier la situation matérielle et l’état de santé [of the detainee]’. If this means ‘any
evidence relating to the material situation’ (including the reasonable suspicion against the detainee)
on the one hand, as well as any evidence as to his or her state of health on the other hand, this
should be sufficient (this would presumably be consistent with paragraph 2 of the article speaking
of ‘conditions de fond’ to be examined). I note, however, that the previous post on this blog has
taken the position that the judge will have no access to the military files on the detainees. It could
be, therefore, that the ‘situation materielle’ which the judge can review is only the situation of
detention as such, to the exclusion of the grounds for such detention. That would obviously not be
enough.

The previous post also reads the statute as failing to give the judge any power to order the release of
the detainee to their own ship, the nearest ship or to a port. This power may conceivably be inherent
in the judge’s duty to decide on the detention under Article L-1521-14. It may be, however, that
French law would require more precision in this regard, and in the rather special case of detention
and the transport of a detainee to France, one would have expected some provision on how and
where detainees are to be released. They may, after all, be very far from home by the time the judge
refuses to sanction their detention, or maybe refuses a second or third order prolonging such
detention. The fact that there is nothing of the sort in the statute, and that the judge may not be
empowered to make provision for this, gives cause for concern.

I also share some other points of concern raised in the previous post. It is problematic, for instance,
there appears to be no provision for the detainees to be informed promptly of the reasons for their
detention (Article 5-2 of the Convention). It is entirely possible that this will happen as a matter of
course, but that is not an assumption that the law should make. Moreover, it seems that there is no
provision for the detainees to bring any (non-automatic) proceedings to challenge their detention
(Article 5-4). Whether there is any possibility of compensation for wrongful detention (as required
by Article 5-5), I am in no position to say, but apparently there is none. This may become a serious
issue particularly where – as noted before – this form of detention also means that the detainees will
be taken away and perhaps released far from home. The need for compensation in such cases is
obvious.

Beyond Article 5, some other points raised previously by this blog merit close attention. I would
hope, in particular, that the prohibitions of refoulement under the Convention (cf. Soering v. United
Kingdom, § 88) still apply to the French Navy even in domestic law. Apart from that, obligations of
allowing the detainee consular assistance and contacts with a lawyer and family members may
prove problematic in the physical circumstances. It is to be noted that detention incommunicado is
usually a serious violation of human rights, and that the right of consular assistance applies, in
principle, to any detainee even outside any criminal context (Case concerning Ahmadou Sadio
Diallo (ICJ), § 91). Even so, there may be some very uncommon and probably unforeseen
considerations where consular assistance and other visits are practically impossible, as will usually
be the case with detention at sea.

All of these issues are of obvious relevance to a number of contracting states to the ECHR,
principally in the fight against piracy but also with respect to anti-terrorist and anti-drug-trafficking
operations. The judgment in Medvedyev has given the first indications on the approach to be
followed, and the French bill 563 is an early attempt at devising a fuller legal regime. Other states
would do well to take note, if not necessarily to adopt the French solutions.

Tobias Thienel
Invisible College Blog

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