This chapter stems from a report submitted to the European Commission within
the framework of the PROMERC project. Today, the areas most affected by piracy
are West Africa, South East Asia, the Indian Ocean, East Africa, South America and
the Caribbean. Piracy may have a detrimental impact on human life and result in
substantial financial loss. The crime often encompasses acts of violence and abuses
which constitute flagrant and grave violations under criminal law. Such acts may
include abduction, prolonged detention, physical and psychological torture,
degrading treatment, as well as a transgression of the right to liberty and security.
Equally important, it has transpired that the treatment of pirates upon interception
or capture does not always comply with human right norms. The European Court of
Human Rights has ruled in this regard that French authorities had violated the rights
of suspect Somali pirates by holding them in custody for 48 h on French soil before
officially charging them with specific crimes.
2 According to the European Court,
French authorities “had not sufficiently guaranteed the applicants” right to their
liberty and violated Article 5(3) (right to liberty and security) of the European
Convention, which reads: “Everyone arrested or detained in accordance with the
provisions of paragraph 1 ( c ) of this Article shall be brought promptly before a
judge or other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release pending trial. . .”. In addition,
the Court found that French authorities had breached Article 5(1) (right to liberty and
security).
3
For this purpose, in many countries, the act of piracy is considered as a violation
of national criminal law and the emphasis has been placed upon arrest, prosecution
2 Ali Samatar and others v. France and Hassan and Others v. France. See: https://piracylaw.files.
wordpress.com/2015/01/udgments-ali-samatar-v-france-and-hassan-v-france-suspects-of-piracyagainst-french-vessels-appre.pdf.
3 Article 5—Right liberty and security:
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty
save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court
or in order to secure the fulfillment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence or when
it is reasonably considered necessary to prevent his committing an offence or fleeing after
having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his
lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of
persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into
the country or of a person against whom action is being taken with a view to deportation or
extradition.
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K. Lagdami and A. Fakhry
the framework of the PROMERC project. Today, the areas most affected by piracy
are West Africa, South East Asia, the Indian Ocean, East Africa, South America and
the Caribbean. Piracy may have a detrimental impact on human life and result in
substantial financial loss. The crime often encompasses acts of violence and abuses
which constitute flagrant and grave violations under criminal law. Such acts may
include abduction, prolonged detention, physical and psychological torture,
degrading treatment, as well as a transgression of the right to liberty and security.
Equally important, it has transpired that the treatment of pirates upon interception
or capture does not always comply with human right norms. The European Court of
Human Rights has ruled in this regard that French authorities had violated the rights
of suspect Somali pirates by holding them in custody for 48 h on French soil before
officially charging them with specific crimes.
2 According to the European Court,
French authorities “had not sufficiently guaranteed the applicants” right to their
liberty and violated Article 5(3) (right to liberty and security) of the European
Convention, which reads: “Everyone arrested or detained in accordance with the
provisions of paragraph 1 ( c ) of this Article shall be brought promptly before a
judge or other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release pending trial. . .”. In addition,
the Court found that French authorities had breached Article 5(1) (right to liberty and
security).
3
For this purpose, in many countries, the act of piracy is considered as a violation
of national criminal law and the emphasis has been placed upon arrest, prosecution
2 Ali Samatar and others v. France and Hassan and Others v. France. See: https://piracylaw.files.
wordpress.com/2015/01/udgments-ali-samatar-v-france-and-hassan-v-france-suspects-of-piracyagainst-french-vessels-appre.pdf.
3 Article 5—Right liberty and security:
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty
save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court
or in order to secure the fulfillment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence or when
it is reasonably considered necessary to prevent his committing an offence or fleeing after
having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his
lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of
persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into
the country or of a person against whom action is being taken with a view to deportation or
extradition.
390
K. Lagdami and A. Fakhry