MEDVEDYEV AND OTHERS v. FRANCE JUDGMENT
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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.
45. The applicants also considered that Law no. 94-589 of 15 July 1994
was not applicable, particularly because it referred to international
conventions to which Cambodia was not a party.
46. 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.
47. 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.
48. 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.