22
MEDVEDYEV AND OTHERS v. FRANCE JUDGMENT
Secondly, French law applied because the Winner had been flying no flag
and had refused to identify itself.
58. As to the quality of the legal basis, which the Chamber had
questioned, the Government maintained that the specificity of the law of the
sea had to be taken into consideration to appreciate the precise meaning of
the legal standards; the French Law of 15 July 1994, in conjunction with
Cambodia’s agreement in conformity with the provisions of Article 17 § 4
of the Vienna Convention and the Montego Bay Convention, had authorised
the rerouting of the ship. So, as the law provided for the ship to be rerouted,
it also provided for restriction of the freedom of movement of those on
board, as the two were inseparable. According to the Government, the
rerouting was nevertheless to be considered as a preliminary to the suspects
being brought before the judicial authorities.
59. In any event, the unpredictability of navigation and the vastness of
the oceans made it impossible to provide in detail for every eventuality
when ships were rerouted. The Government considered that the allegation
that it had not been possible for the applicants to contact a relative or a
lawyer was unfounded, as the technical conditions for such contact were not
always available; besides, as the applicants had not established that they had
been in contact with their families or their lawyers prior to the interception
by the French navy, their practical situation had not been altered by the
rerouting of their ship. The Government also pointed out that the length of
the voyage had merely been a material contingency and that the applicants
had not been questioned during the thirteen days spent on board, naval
personnel having no power to take such action. Accordingly, the
Government considered that the right to contact a lawyer or a family
member would have been theoretical and illusory.
60. The Government then broached the matter of supervision by the
public prosecutor. They argued that the Chamber judgment confused the
notions referred to in Article 5 §§ 1 (c) and 3 of the Convention, while
noting that the applicants were to be presented, when they arrived in Brest,
not to the public prosecutor but to an investigating judge.
61. They saw the fact that the rerouting of the ship had been carried out
under the supervision of the public prosecutor as a guarantee against
arbitrary treatment, arguing that in view of the guarantees of independence
public prosecutors offered, they should be considered judicial authorities.
On this last point the Government developed arguments demonstrating the
guarantees of the independence of public prosecutors in terms of their
status, the way they were recruited, their powers and their institutional role.
They pointed out, in particular, that Article 64 of the French Constitution
enshrined the independence of the “judicial authority” and that the
Constitutional Council had found that the said judicial authority included
both judges and public prosecutors.