A European Court Is Wrong about France

Since the Gilbert and Sullivan comic operetta The Pirates of Penzance, the world has been conscious of menace on the high seas.  The operetta is delightfully playful and amusing.  In contrast, the scenario about and the decision on December 4, 2014 concerning Somali pirates made by the European Court of Human Rights (ECHR) is a farce, ludicrous and far from amusing.   The Court, elected by the Parliamentary Assembly of the Council of Europe and set up in Strasbourg in 1959 to deal with alleged violations of human rights, is considered a totally independent body.  Its decision on December 4 reached the height of absurdity, and it suggests that its independence has transmuted into irrationality and incomprehensible arrogance.  Indeed, the Court has made absurdity one of the fine arts.

The U.S. has become familiar with the problem of piracy.  Hollywood presented in the moving film, Captain Phillips, the hijacking in the Indian Ocean in 2009 by four Somalis of a U.S. cargo ship whose captain was taken for ransom.  Those pirates were killed in a daring raid by a U.S. Navy SEAL Team (Devgru).  The U.S. familiarity with the exploits of pirates goes back to the incidents when Barbary Corsairs in the early 19th century attacked merchant ships to extract ransom.  This had led President Thomas Jefferson to send a small squadron to Tripoli in 1801 to maintain peace, and to send a detachment of the newly formed Marine Corps to attack Tripoli in 1804.

Pirates operating from off the coast of Somalia in recent years have been active and successful in spite of the arrangement that international fleets attempt to prevent attacks by patrolling the Gulf of Aden and the Indian Ocean and by having armed guards posted on some vessels.  In the last six years, about 4,000 seafarers, mostly Asians, have been captured by pirates.  At the peak in 2011, 736 hostages and 32 boats had been seized.

The European Court decision relates to the events following  the capture of two French registered vessels; a luxury cruise ship, Le Ponant, seized in the Gulf of Aden on April 4, 2008; and a small yacht, Carré d’As, seized on September 2, 2008, with a husband and wife aboard.  Le Ponant, a 32-room cabin ship, going from Seychelles to the Mediterranean, has only crew on board, 30 in all, including 22 French citizens.  The dozen pirates who attacked Le Ponant were armed with assault rifles, Kalashnikovs, and rocket-propelled grenade launchers.

The pirates demanded a sum of $2.15 million for release of the hostages of Le Ponant and the boat.  After several days of negotiations, and, at first, opposition to the ransom by then-president Nicolas Sarkozy, the board that owned the ship, which was insured by the U.S. company AIG, assented, and this sum was paid in cash.  

The Somali government had authorized French authorities to enter Somali territorial waters and to take all necessary measures to deal with the crisis.  In a short time, the pirates were captured in the Somali desert by French Special Forces and put under French military control.  After the Somali authorities had given permission, the pirates were put on a military aircraft on April 15, which landed the next day in France, where they were taken into police custody.  On the morning of April 18, the pirates appeared before a French investigating judge and were placed under judicial investigation.

A French Court of Appeal held in a judgment of October 6, 2009 that French actions concerning the pirates had been lawful.  Moreover, they had been conducted in the context of cooperation with Somali authorities and had complied with all provisions for promptness imposed by the ECHR.  The arrest and detention of the pirates was appropriate, especially in regard to what the Court called  “the wholly exceptional circumstances” of the case in temporal and geographical terms.  Again, a decision by the French Court of Cassation on February 17, 2010 found that “insurmountable circumstances,” caused by delay by Somali authorities, justified the short delay before the French police custody of the pirates on April 16, 2008.

At the jury trial of the pirates in June 2012, they were charged with kidnapping, illegal confinement, and organized gang theft, but not with the offense of piracy, because of the change in French law on the issue of piracy.  One pirate was acquitted, and the others were given various sentences up to seven years prison.

The ECHR did not challenge the right of France to arrest the pirates inside Somali territory under U.N. anti-piracy rules.  But it said France was wrong to keep the pirates in custody for an additional 48 hours before bringing them before a judge.  This, it argued, violated the European Convention on Human Rights.

At one point in the past, pirates, when found, were executed.  The ECHR said the Somali pirates had undergone a lawful arrest or detention by France.  But their absurd conclusion was that the pirates had been insufficiently protected against arbitrary interference with their right to liberty because of the 48-hour delay when they were examined while in custody.  Accordingly, the Court awarded thousands of euros to each of the six Somali pirates on trial.  One is to get 9,000 euros, the others sums of up to 7,000 euros.

The ECHR acknowledged that there were “exceptional circumstances” to justify detention of accused persons before they were brought before a judge, especially in this case, since the arrests took place more than 6,000 kilometers (4,000 miles) from French territory.  Nevertheless, it explained its decision by reference to articles of the European Convention on Human Rights, which may be quoted.

Article 5(1) states, “Everyone has a right to liberty and security of person. No one shall be deprived of his liberty save … in accordance with a procedure proscribed by law.” Article 5(3) says, “Everyone arrested or detained in accordance with the provisions of paragraph 1 shall be brought promptly before a judge or other officer authorized by law  … and shall be entitled to trial within a reasonable time or to release pending trial.”

Relying on these articles, the Court decided that the French system had not sufficiently guaranteed the applicants’ right to their liberty.  Instead of being brought “promptly” before a legal authority, the pirates had been taken into custody for 48 hours on their arrival in France.  The Court did not agree that French authorities were justified by law to use the 48 hours to “intensify their investigations for the purpose of bringing formal charges against the suspects.”

To their credit, French military and judicial authorities acted properly in defense of freedom and lawfully in their treatment of the pirates once they were caught.  The European Court of Human Rights has disgraced itself by criticizing those French authorities and giving unwarranted awards to pirates.