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  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.
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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