Why Somali pirates got damages from Strasbourg
9 December 2014
Ali Samatar and others v. France, 4 December 2014, ECtHR, Fifth Section, read judgment
There is a good deal of froth about this case in the media, with little of it looking at what our pirates got their damages for. I also suspect that some of the hostility comes from elements who may not wish to trouble themselves with a judgment only in French. So let’s have a quick look at what the case was actually about.
The surrounding facts are terrifying but France’s liability to pay damages occurred for mundane reasons, as we shall see.
On 4 April 2008, a large (88m – see pic) French cruising yacht, Le Ponant, was hijacked by twelve Somali pirates armed with AK47s and rocket launchers. 30 crew were taken hostage. After clearing it with the Somali government, France sent the military in. On 11 April, the hostages were ransomed for $2,150,000, whilst Le Ponant was moored in the port of Garaad. An SUV speeding out of Garaad was then apprehended by 5 or 6 helicopters, and 6 men (the applicants) were arrested. Of these 6, 4 were to be convicted of piracy, and 2 (Al Samatar and Said) were acquitted by the French Courts. All were to receive damages of €2,000 each from Strasbourg. So when I say “Somali pirates,” you will of course understand that I mean either pirates or pirate suspects – a fair suspicion, I suppose, in that all 6 were in the fast moving SUV.
Their claims were for breach of Article 5(3) of the ECHR, and in particular the duty on the state to bring detainees before a judge “promptly” – and Article 5(5) confers an express right of compensation for breach of the Article.
As we have seen, the “pirates” were arrested on 11 April. They were held initially on a French navy vessel, and then flown to France by military aircraft. They landed on 16 April. They appeared before a French court in Paris, early in the morning of 18 April.
There was no argument about jurisdiction per Al Skeini and all that (see, e.g. here); France accepted that Article 1 of the Convention was satisfied immediately upon arrest due to its exercise of military control agreed to by Somalia.
But Strasbourg rejected any claims for unlawful detention between arrest and the pirates’ arrival in France. It looked at the various cases concerning detention out of the jurisdiction (a motley crew of drug dealers arrested on the high seas and taken thousands of kilometres by ship- see Medvedyev or Rigopoulos) and decided that the delay between arrest and arrival on French soil could be justified.
By contrast, the Court went on to conclude that the period between arrival and first appearance in court (48 hours according to [55] of the judgment) was culpable, and damages were awarded for this. After all, it was not as if France did not have warning of their imminent arrival.
The Court recognises that its rules are strict on this. The reason will be obvious, to minimise the time of detention if it cannot be justified by a court, and detect “tout mauvais traitement” during that original period of detention. Or as the Grand Chamber put it in the Medvedyev case
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.
Judicial control must be prompt, automatic (i.e. not dependent upon some application by the suspect) and must be by a judge or equivalent.
Conclusion
When you see what the case was actually about, wherein lies the fuss? Because it does not take a great deal of thought to realise that the right not to be unlawfully detained is not just conferred on those who later turn out to be not guilty. By definition, you are at a stage when a court has not pronounced on guilt, one way or another. I suppose in theory you could make the recovery of damages dependant upon whether the individuals were ultimately convicted or not, but then you would have to do something to amend the right to compensation currently conferred by Article 5(5). And it would be a bit odd on our facts to give the acquitted 2 suspects money, and withhold it from the 4 guilty men. Looking at it the other way round, the prospect that thoroughly undeserving individuals might collect modest sums of money from the state because the state did not get them up before a court quick enough might be precisely the spur needed to ensure that authorities act fast.
Once you see that the “pirates” get their money, not for anything done to them in Somalia, but for a failing arising out of France’s exercise of jurisdiction over them when they were in France, then perhaps any residual doubts people may have about the case may disappear.
That said, don’t suppose any of this will be picked up in the political debates about the case.
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With respect, it is rather facile to dismiss the criticisms of the Ali Samatar judgment as ‘froth’. It represents, at best, an undercooked, and at worst, a dangerous decision of the ECtHR. It is undercooked in the sense that the reasoning is far from clear, based on existing principles. If we take Brogan v UK as a yardstick (which the ECtHR does at para 45), then why is it acceptable to depict that case as ‘exceptional’ and allow 96 hours before court appearance in cases involving planned arrests where the forthcoming detention was full known to the authorities. The RUC in that case were therefore allowed ‘la libre jouissance pour compléter le dossier de l’accusation’ (para 58), and did so with gusto. On the other hand, in the case of Ali Samatar, the previously unknown pirates had to appear in court at the first opportunity, without time for questioning, identification processes, having a wash and brush up, phoning a friend, or speaking with lawyers. In that way, the ECtHR was prepared to ignore the period of military detention for some purposes but not for others. As for it being a ‘dangerous’ judgment, I’ll leave aside the implication which states might draw that uses of overwhelming military force might be a better tactic that the legal pitfalls of custody in their own jurisdiction. Most states were already aware of this point which is why, as a last resort, deals have been made with Kenya, Mauritius, the Maldives and Seychelles. The additional, and new worry created by the ECtHR is that because the period of military detention is not being ignored, there arises the incentive, if not requirement, for the military to conduct inquiries during transit, so that the case can go to court on touchdown. Military interrogations – is that what we really want to encourage? Read the Baha Mousa Inquiry Report, and you should surely begin to fret about this worrisome judgment in the admittedly highly complex area of applying Art 1 to foreign military action.
If the law requires a certain process to be followed and that process is not followed, then we should hardly be surprised to see that failure exploited by a defence lawyer. When the delay occurred, the men were merely suspects, not convicted pirates, so in a narrow legal sense they were still ‘innocent’.
Much depends on the interpretation of “promptly”. In the Torm Kansas case the delay was 13 days after the suspects’ arrest, but for most, if not all, of that time they were on a Danish warship in the Indian Ocean and the judgement eventually had to be relayed to them by video link. In the French case the clock started ticking when the suspects landed on French soil and presumably the ECHR felt that they could, and should, have been brought before a judge the same day, not 48 hours later.
Bearing in mind all the tribulations suffered by seafarers at the hands of pirates a judgement of this kind is hard to swallow, but the navies and judiciaries do have to work within the law and need to understand the consequences of breaching an arrested person’s human rights. Those rights apply to us all, of course and, given the trend towards criminalisation of seafarers, it is all too easy for the boot to be on the other foot.
However, I agree with frenchnews1online and pedro009 that, in the real world, the French, Danish and also Mauritian (MSC Jasmine case) judgements could well have unfortunate consequences. It will reduce European countries’ appetite for prosecuting piracy suspects (and the UK has not prosecuted a single pirate, preferring to subcontract that work to hard-pressed regional states like Seychelles); it may encourage a revival of the discredited catch-and-release tactic; and it may lead to far worse human rights breaches by non-European ships.
Faced with the expense and uncertainty of bringing suspects to trial and the prospect of having to justify every action to a human rights court, some may decide to take a more direct approach to ‘justice’ by simply sinking the skiff and its occupants in mid-ocean.
Exactly Stephen the spirit of the law is about people being held longer than necessary and is probably based on cases on land. There are extenuating circumstances and here the defence lawyers saw it as an easy way to make some money and did not follow the spirit of the law which will lead to capture and release of Pirates. Now they have no other choice as there is no international system for handling crime in International waters.
Unfortunately this ruling can push other countries to a more aggressive approach to dealing with piracy where they will not be detained in risk of what has happened.
The general fallout from this is the fact that Pirates have been award compensation due to a technicality on the time frame when a country was attempting to follow the laws and regulations they are bound to.
All very technical and on a technical basis no doubt all very correct but given there was a time when apprehended pirates were treated a shark food, the court decision might actually be perverse. How many piracy issues in the future are now more likely to be “settled” out of sight on the High Seas thanks to European human rights intervention? Convicted pirates should never be rewarded, the legislation should have given the court leeway to take their convictions into account and waive any award. To jail them and then pay them because events leading up to their convictions did not follow the book, is obtuse and counter to common sense. Surely punishment and reward are opposites in human conditioning?
The damages obviously should be set off against the French Government’s claim for a refund of the ransom. The time between arrival in France and first appearance in court was not “culpable”. It was the extremely short period of only 48 hours. Words fail me. How can anyone attempt to justify this decision? How would you feel if a relative of yours had been kidnapped by pirates at gunpoint and you had to pay a $2m ransom? Courts are supposed to administer “justice”.
I guess the lawyers have to justify their fees and the fact that they are referred to as “our Pirates” would imply that they have brought this case against the French and others against the Danish government not based on justice but on compensation and indeed the QC here argues this as a defence for his actions. In my opinion human rights are accompanied by human responsibilities and once they took to sea to attack the yachts and ships they gave up their human rights. The judges felt that 48 hours (2 days) was a long time even though I am sure they were held in comfort and fed and given drinks and not subject to torture and violence unlike the seafarers would have been held had their attack been successful. What do the judges consider the 1400 days that the 30 seafarers and fishers have been held in Somalia by friends of “our pirates”. Will David Hart QC be prepared to file a case on behalf of the nearly 5000 seafarers who have had their human rights taken away by “our pirates” for years not just two days. The laws are written based on justice and not compensation and fees.
I agree with this comment. What an utterly perverse decision and one which will quite rightly drag the ECHR through the mud and tarnish its reputation. However, I’m sure the defending council was paid well for his efforts.
I suspect that the pirates will now be dealt with at sea, away from the grasping hands of the greedy lawyers.