20
MEDVEDYEV AND OTHERS v. FRANCE JUDGMENT
2. The Government
49. In their preliminary observations the Government stressed that the
events in this case had taken place on the high seas, so that it was necessary
to take into account the specificities of the maritime environment and of
navigation at sea. In the Government’s submissions this had two specific
consequences. First of all, the Convention was completely silent about
maritime matters and the Government argued that it was possible to draw a
parallel with the solution adopted by the Court in cases concerning the
handing over of persons by one State to another in the context of extradition
(see Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005-IV; Freda v. Italy,
no. 8916/80, Commission decision of 7 October 1980, Decisions and
Reports (DR) 21, p. 254; Altmann (Barbie) v. France, no. 10689/83,
Commission decision of 4 July 1984, DR 37, p. 230; and Sánchez Ramirez
v. France, no. 28780/95, Commission decision of 24 June 1996, DR 86-A,
p. 155). The Government considered that “the same reasoning, mutatis
mutandis, could be applied in this case” for want of any provision in the
Convention concerning arrangements for rerouting ships, or specific
provisions concerning maritime matters, which made the Convention
inapplicable ratione materiae.
50. Secondly, they submitted that freedom to come and go on board a
ship had more restrictive limits, which were the confines of the ship itself:
the lawful rerouting of a ship therefore necessarily authorised restrictions on
the movements of the people on board; the specificities and the risks of
navigation at sea justified the extensive powers enjoyed by ships’ captains.
The Government inferred that the applicants had not been deprived of their
liberty within the meaning of Article 5 but had been subjected to restrictions
of liberty that were justified, restrictions they were challenging on a purely
formalistic and litigious basis. The Government submitted that Article 5 of
the Convention was not applicable in the present case.
51. In the alternative, on the merits, the Government submitted that the
deprivation of liberty imposed on the applicants for the thirteen days during
which the Winner had been rerouted had been lawful, and disputed the
findings of the Chamber.
52. The lawfulness of the measure had to be examined from two points
of view, that of public international law and that of domestic law.
53. With regard to public international law, the Government pointed out
that the Winner had been flying no flag and had refused to identify itself.
The ship’s crew had therefore deliberately placed itself in the situation
provided for in Article 110 of the Montego Bay Convention, which
provided expressly for a warship to be able to stop a ship that is “refusing to
show its flag”, a principle unanimously accepted under the law of the sea.
54. The Government considered in any event that the agreement given
by Cambodia to the French authorities by diplomatic note had made the
intervention of the French navy perfectly lawful from the international law