France: Court to rule on Somali pirate human rights protests

Tomorrow, Strasbourg judges will decide whether 10 Somali men accused by France of piracy, suffered a breach of their human rights.

Ali Samatar and Others v. France (nos. 17110/10 and 17301/10)
Hassan and Others v. France (nos. 46695/10 and 54588/10)

These two cases concern ten Somali nationals who, having seized vessels flying the French flag off the Somali coast, were arrested by the French authorities and subsequently transferred to France, where they were prosecuted for acts of piracy.

The applicants in the first case are Abdurahman Ali Samatar (application no. 17110/10), born in 1984, and also Ismaël Ali Samatar, Abdulqader Guled Said, Mohamed Said Hote, Abdullahi Yousouf Hersi and Daher Guled Said (application no. 17301/10), born in 1981, 1978, 1962, 1987 and 1978 respectively.

The applicants in the first case were implicated in the hijacking of the ship “Le Ponant” off the Somali coast on 4 April 2008. On 5 April 2008 the Somali Transitional Federal Government (TFG) sent a diplomatic note to the French authorities, authorising them to enter Somali territorial waters and to take all necessary measures – including the proportionate use of force – in the context of the crisis.

The applicants were arrested on 11 April 2008 by the GIGN (the national gendarmerie’s task force) in Somali territory and placed under military control on board a French ship, until, on 15 April, the Somali authorities gave their agreement to the suspects’ transfer to France. They arrived by plane at 5.15 p.m. on 16 April 2008 and were placed in police custody. On 18 April, they were presented before an investigating judge and placed under investigation.

In the second case, the applicants are Yacoub Mohammed Hassan, Cheik Nour Jama Mohamoud (application no. 46695/10) and Abdulhai Guelleh Ahmed (application no. 54588/10), who were born in 1983, 1979 and 1975 respectively.

Following the hijacking of the French yacht “Le Carré d’As” off the Somali coast on 2 September 2008, these applicants were arrested by the French navy on 16 September while they were within Somali territorial waters.

On 2 June 2008 the United Nations Security Council had adopted a resolution authorising, for a six-month period, the States cooperating with the Somali TFG in the fight against piracy to enter Somali’s territorial waters and use there all available means to repress acts of piracy and armed robbery. The applicants were placed under military control on the French ship “Le Courbet”.

On 23 September 2008 they were transferred to France by air and placed in police custody on their arrival. On 25 September 2008 the applicants were presented to an investigating judge and placed under investigation.

Ruling on appeals by the applicants in both cases, the Investigation Division of the Paris Court of Appeal held that the suspects’ arrest and administrative detention pending placement in police custody had not been contrary to Article 5 of the European Convention on Human Rights, having regard in particular to the exceptional and insurmountable temporal and geographical circumstances in these cases. Appeals by the applicants on points of law were dismissed.

Relying on Article 5 § 1 (right to liberty and security), the applicants in the case of Hassan and Others allege that their detention by the French military authorities from 16 to 23 September 2008 had no legal basis.

In both cases, relying on Article 5 § 3 (right to liberty and security), the applicants complain that they were not “brought promptly before a judge or other officer authorised by law to exercise judicial power” after their arrest by the French army in Somali territorial waters / on Somali territory.

Ahmed (Hassan and Others) and the applicants in the case of Ali Samatar and Others also complained, under Article 5 § 4 (right to have lawfulness of detention decided speedily), that they did not have access to a court to challenge the lawfulness of their arrest or detention until they were placed in police custody in France.

Ahmed also alleges that his rights under Article 5 § 2 (right to be informed promptly of the accusations against him) were breached. Samatar, relying on Article 6 § 1 (right to a fair hearing), complains about the fact that the Court of Cassation relied on “insurmountable circumstances” to justify his detention, without having permitted adversarial argument on that point.

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