18
MEDVEDYEV AND OTHERS v. FRANCE JUDGMENT
and that the ship had been identified as the Winner before the operations
commenced.
40. The Chamber nevertheless agreed that, regard being had to
Article 108 of the Montego Bay Convention, the Cambodian authorities’
diplomatic note of 7 June 2002 could be considered to have provided a legal
basis for the interception and boarding of the Winner by the French
authorities, although this did not apply to the thirteen days’ deprivation of
liberty imposed on the crew on board the ship. It further found that neither
French law nor Article 17 of the Vienna Convention made any more
specific provision for deprivation of liberty of the type and duration of that
to which the applicants were subjected.
41. In the Chamber’s opinion, the legal provisions relied on by the
Government did not afford sufficient protection against arbitrary violations
of the right to liberty: firstly, none of those provisions referred specifically
to depriving the crew of the intercepted ship of their liberty or regulated the
conditions of deprivation of liberty on board the ship; secondly, they
neglected to place the detention under the supervision of a judicial authority.
On this last point the Chamber noted that although measures taken under the
Law of 15 July 1994 were taken under the supervision of the public
prosecutor, the public prosecutor was not a “competent legal authority”
within the meaning the Court’s case-law gave to that notion (see Schiesser
v. Switzerland, 4 December 1979, §§ 29-30, Series A no. 34).
42. It accordingly found that the applicants had not been deprived of
their liberty “in accordance with a procedure prescribed by law”, within the
meaning of Article 5 § 1.
B. The parties’ submissions before the Grand Chamber
1. The applicants
43. The applicants, who shared the analysis followed by the Chamber in
its judgment, considered that the action taken by the French authorities on
the high seas and their detention on board the Winner had no legal basis.
They submitted that there was no legal basis for the boarding of the Winner
either in international conventions to which Cambodia was not a party, be it
the Montego Bay Convention or the Vienna Convention, or in the
diplomatic note of the Ministry of Foreign Affairs of 7 June 2002.
44. They argued that Article 108 of the Montego Bay Convention was
not applicable in this case because, in their submission, it was not
Cambodia, the flag State, that had requested the cooperation of France, but
France that had taken the initiative of requesting authorisation to stop a ship
flying the Cambodian flag. The fact that Cambodia granted that request
could not be likened to a request for cooperation within the meaning of
Article 108 of the Montego Bay Convention. As to Article 110 of that