[TRANSLATION]

THE FACTS

The applicant [Mr Angelos Rigopoulos] is a Greek national. He was born in 1946 and lives in Spain. He was represented before the European Commission of Human Rights (“the Commission”) by Mr J. Molins Otero, of the Madrid Bar.

A.  The circumstances of the case

The facts, as submitted by the parties, may be summarised as follows.

As part of a judicial investigation into a case of international drug trafficking, Central Investigating Court no. 1 of the Audiencia Nacional was informed that the Archangelos, a vessel flying the Panamanian flag, was on the Atlantic Ocean sailing towards Europe with a cargo of cocaine. After obtaining verbal authorisation from the Panamanian embassy in Spain, in accordance with Article 17 §§ 3 and 4 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, adopted in Vienna on 20 December 1988, the investigating judge, in a decision 20 January 1995, ordered that the vessel, which was on the high seas of the Atlantic Ocean approximately 3,000 nautical miles (5,556 km) from the Canary Islands, be boarded and searched.

On 23 January 1995 the crew of a Spanish vessel, the Petrel I, belonging to the customs inspection department boarded the Archangelos. After an exchange of fire with several members of the crew who had barricaded themselves into the engine room, the fourteen-member crew surrendered and the vessel set sail again on 26 January 1995. The members of the crew were nationals of various States, and included two Spaniards and the applicant, the vessel’s captain, who is a Greek national. The applicant was transferred to the vessel belonging to the Spanish customs police, where he was placed under police supervision.

After searching the Archangelos, the customs police officers seized sixty-eight packets of cocaine weighing 2,713 kg in all. The narcotic powder was attached to wheels, which were on rails, so that the drug could be very quickly thrown into the sea.

On 23 January 1995 the Madrid Central Investigating Court ordered reporting restrictions in respect of the judicial investigation for one month.

On 26 January 1995 the Central Investigating Court made an order in which it noted firstly that the Archangelos was being escorted by the customs inspection department towards the Canary Islands, where it was not expected to arrive before 4 February 1995. The court held that, having regard to the fact that the seventy-two-hour time-limit since the vessel had been boarded was soon to expire, after which a person detained should either be released or be brought before the appropriate judicial authority in accordance with the Code of Criminal Procedure, the position of the members of the crew who had been detained should be regularised. In that connection, the investigating judge, having regard to the special circumstances of the case and, in particular, to the vessel’s location and the substantial cargo of drugs which had been seized, ordered that the members of the crew, including the applicant, should be detained pending investigation.

According to the Government, the arrested members of the crew, including the applicant, had been told on 24 January 1995 that they were being detained and had been informed of their rights. On 27 January 1995 they had been notified of the decision of the investigating judge ordering them to be detained. A record of those measures appears in the Petrel I’s log. They had also been invited to name persons whom they wished to be informed of their detention. The applicant had named a Mrs R.T. The embassies of the States of which the detained crew members were nationals had also been informed of their detention. Additionally, from 31 January 1995 the applicant had had a lawyer in Las Palmas and in Madrid. In that connection, his lawyer had sent him a letter in English on 31 January 1995 informing him that his wife had instructed lawyers in London to defend him.

The applicant maintained that the decision of 26 January 1995 had not been sent to him until 2 February 1995, as could be seen from the investigating judge’s decision of that date. Moreover, he had had no communication – even by radio telephone – with the investigating judge during his period of detention on the Petrel I. The applicant claimed that it was not until he had arrived at the port of Las Palmas that he was informed in the manner prescribed by law of his rights as a person in detention. He submitted that the brief entries in the Petrel I’s log were of no evidential value and that in any event, as a Greek national with no interpreter or lawyer, he could not be expected to understand, even vaguely, the content of the decision of 26 January 1995.

The Archangelos and the Petrel I arrived in Las Palmas (Grand Canary) at 7.30 a.m. on 7 February 1995. At the port of Las Palmas, a judicial commission took charge of the prisoners. Assisted by an interpreter, the commission informed the applicant of the Central Investigating Court’s decision ordering him to be detained pending investigation. He was informed of his rights in the presence of a lawyer and an English-to-Spanish interpreter. On the same day the members of the crew who had been placed in detention were taken to Madrid by air. On 8 February 1995 they were brought before the relevant judicial authority and questioned in the presence of their lawyers, with interpreters on hand.

On 16 and 27 February 1995 the applicant lodged an application for the proceedings to be set aside and for his release, alleging that there had been a violation of his fundamental rights. In a decision of 22 March 1995 the Central Investigating Court dismissed his application. An appeal lodged by the applicant was dismissed by the Second Division of the Audiencia Nacional in a judgment of 23 April 1996.

The applicant lodged an appeal (recurso de amparo) with the Constitutional Court. He complained that he had been illegally detained, that he had not been brought promptly before a judicial authority and that he had not been informed immediately and in a way that was understandable to him of his rights or of the reasons for his detention. He relied on Article 17 §§ 1, 2 and 3 of the Spanish Constitution (right to liberty and security). In a judgment of 10 February 1997 the Constitutional Court dismissed his appeal. It declared, by way of a preliminary observation, that, notwithstanding that the applicant had been detained while on the high seas, the enforcement of a judicial decision remained subject to the Spanish Constitution and, in particular, to the duty to respect fundamental rights and freedoms, this being in accordance with the case-law established by the European Court of Human Rights in its judgments in the cases of Drozd and Janousek v. France and Spain (judgment of 26 June 1992, Series A no. 240) and Loizidou v. Turkey (judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI).

Dealing first with the complaint based on Article 17 § 1 of the Constitution, the Constitutional Court noted that the boarding and searching of the Panamanian vessel had been authorised by the Central Investigating Court (after that court had been informed that the vessel in question was being used for cocaine trafficking), that two Spanish nationals had been on board and that the search had been authorised by Panama. In that connection, the Constitutional Court reiterated that section 23(4) of the Judicature Act of 1 July 1985 gave the Spanish courts jurisdiction over acts committed by Spaniards or aliens outside Spanish territory if those acts constituted an offence like (as in the case in point) drug trafficking.

The court added that enforcement of the measure in question aboard a foreign sea-going merchant vessel was potentially contrary to the rules of international law, since the vessel was subject to the jurisdiction of the flag State. Accordingly, any exception to that principle of international law had to be based on a rule of law, which, in this case, was provided by Article 17 §§ 3 and 4 taken together with Article 4 §§ 1 and 3 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, an instrument to which Spain and Panama were Contracting Parties.

Under those provisions, any State, having obtained authorisation from the flag State, could take appropriate measures in respect of a vessel being used for drug trafficking and in respect of the members of the crew. The court found that the measure taken by the Central Investigating Court had complied with all the requirements of the convention in question. Consequently, the applicant had been detained in accordance with the law and the manner of his detention had complied with the applicable international rules.

With regard to the complaint based on Article 17 § 2 of the Constitution, the Constitutional Court pointed out that any detention lasting more than seventy-two hours had to be authorised by the relevant judicial authority. In the instant case the Central Investigating Court had decided in a reasoned order of 26 January 1995 that the applicant should be held in detention pending investigation. A judicial authority had therefore reviewed the applicant’s deprivation of liberty at the end of the period of custody prescribed by the Constitution.

With regard to the complaint based on Article 17 § 3 of the Constitution, the Constitutional Court, after drawing attention to the special nature of the circumstances of the case as compared with detentions made on Spanish territory, observed that the action of the customs officers had been confined to boarding and searching the vessel and, after discovering the substantial cargo of cocaine, escorting it to Las Palmas, where the applicant had been handed over to the investigating judge.

On 9 December 1997 the applicant was released on bail.

On 13 October 1998 the Audiencia Nacional convicted the applicant of drug trafficking and sentenced him to nine years’ imprisonment and a fine of two hundred million pesetas.

B.  Relevant domestic and international law

1.  The Spanish Constitution

Article 17

“1.  Everyone has the right to liberty and security of person. No one may be deprived of his liberty other than in accordance with the provisions of this Article and only in the cases and in the manner prescribed by law.

2.  Pre-trial detention shall last no longer than is strictly necessary to carry out investigations to ascertain the facts. A person detained shall, in any event, be released or placed at the disposal of the judicial authority within a maximum period of seventy-two hours.

3.  Any person arrested shall be informed immediately, and in a way that is understandable to him, of his rights and the reasons for his arrest, and shall not be forced to make a statement. He shall be guaranteed the assistance of a lawyer in police and judicial proceedings, on the terms laid down by law.

4.  A habeas corpus procedure shall be provided for by law so that anyone who has been illegally arrested can be immediately brought before a judicial authority. The maximum duration of pre-trial detention shall also be determined by law.”

Artículo 17

1.  Toda persona tiene derecho a la libertad y a la seguridad. Nadie puede ser privado de su libertad, sino con la observancia de lo establecido en este artículo y en los casos y en la forma previstos en la ley.

2.  La detención preventiva no podrá durar más del tiempo estrictamente necesario para la realización de las averiguaciones tendentes al esclarecimiento de los hechos, y, en todo caso, en el plazo máximo de setenta y dos horas, el detenido deberá ser puesto en libertad o a disposición de la autoridad judicial.

3.  Toda persona detenida debe ser informada de forma inmediata, y de modo que le sea comprensible, de sus derechos y de las razones de su detención, no pudiendo ser obligado a declarar. Se garantiza la asistencia de abogado al detenido en las diligencias policiales y judiciales, en los términos que la ley establezca.

4.  La ley regulará un procedimiento de habeas corpus para producir la inmediata puesta a disposición judicial de toda persona detenida ilegalmente. Asimismo, por ley se determinará el plazo máximo de duración de la prisión provisional.”

2.  The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

Article 17 
Illicit traffic by sea

“1.  The Parties shall cooperate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea.

3.  A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorisation from the flag State to take appropriate measures in regard to that vessel.

4.  In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement otherwise reached between those Parties, the flag State may authorise the requesting State to, inter alia:

(a)  board the vessel;

(b)  search the vessel;

(c)  if evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board.

…”

COMPLAINT

The applicant complained that he was detained for more than sixteen days on the high seas before being brought before a judicial authority. He alleged a violation of Article 5 § 3 of the Convention.

PROCEDURE

The application was lodged with the Commission on 7 August 1997 and registered on 18 August 1997.

On 16 April 1998 the Commission decided to give notice to the Government of the applicant’s complaint that he had been detained for more than sixteen days before being brought before a judicial authority (Article 5 § 3 of the Convention) and to invite them to submit their written observations on the admissibility and merits of the complaint. It declared the remainder of the application inadmissible.

The Government submitted their observations on 15 June 1998 and the applicant replied on 31 July 1998.

On 15 September 1998 the Commission decided to grant the applicant legal aid.

Following the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 2 thereof, the application falls to be examined by the Court.

THE LAW

The applicant complained that he was detained for more than sixteen days on the high seas before being brought before a judicial authority. He alleged a violation of Article 5 § 3 of the Convention, which reads as follows:

“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 authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial …”

The Government contended that the requirements of Article 5 § 3 of the Convention could not be applied in the abstract. In the present case the entire operation had been carried out under the control of a judicial authority: the preliminary investigations; the boarding of the vessel; and the arrest and placing in detention of the applicant. The applicant had been duly informed of his rights and of the judicial decisions made concerning him and he had not been questioned until he was brought before the judicial authorities in Madrid. The Government pointed out that, although the Archangelos was boarded on 23 January 1995, it was not until 26 January 1995, the date on which the chief engineer was detained, that it set sail again, this being for security reasons. On its arrival at Las Palmas, all necessary measures had been taken to receive the crew members who had been detained and transfer them as quickly as possible to Madrid in order to bring them before the investigating judge. No later than 31 January 1995 a firm of lawyers had been instructed to defend the applicant. Moreover, the applicant had not at any time made any complaint of excessive delay in being brought before the judge.

With regard to the applicant’s submission that, if alternative means had been used, he could have been brought before the judge sooner, the Government pointed out that, assuming that to be true, the thirteen other crew members who had been detained – who had the same rights as the applicant – would also have had to be dealt with sooner. In that connection, they submitted that radio contact with the investigating judge would have been at the very least problematical from a technical point of view, having regard to the number of persons detained, their nationalities, the appointment of lawyers, etc. As regards bringing the judge to the ship, the Government said that the Petrel I was equipped with a helicopter pad, but that in view of how far away the Archangelos was and the technical constraints of a helicopter, that solution was not feasible in practice.

The applicant, relying on the agreement signed between Spain and the United Kingdom to prevent illicit traffic in narcotic drugs, argued that assistance could have been requested from the United Kingdom in boarding the Archangelos, since Ascension Island was approximately 890 nautical miles from where the vessel was boarded. The applicant considered, in any event, that sixteen days to effect a sea transfer could not under any circumstances be described as a “normal” period of time for the purposes of Article 5 § 3 of the Convention. He contended that it was untrue to say that the Archangelos had been unable to sail for three days. According to the Petrel I’s log, it had been delayed for only approximately forty-three hours, and not seventy-two as the Government maintained. He submitted that, having regard to the Petrel I’s average speed (fourteen knots), it would have taken the vessel only nine days to cover the 3,000 miles to the Spanish port.

As regards judicial supervision, the applicant disputed the Government’s argument. In his decision of 2 February 1995 the central investigating judge had specified that the detained members of the crew should be notified of the decision of 26 January 1995, a fact which contradicted the Government’s assertion that the detained crew members had been informed of the decision of 26 January 1995 immediately. Moreover, the applicant had had no communication, even by radio telephone, with the investigating judge throughout his period of detention on the Petrel I. The applicant submitted that it was not until he had arrived at the port of Las Palmas that he had been informed in a manner prescribed by law of his rights as a person in detention. He considered that the brief entries in the Petrel I’s log were of no evidential value and that in any event, as a Greek national with no interpreter or lawyer, he could not be expected to understand, even vaguely, the content of the decision of 26 January 1995. In conclusion, he considered that depriving him for sixteen days of any information about the judicial decisions concerning him amounted to a violation of Article 5 § 3 of the Convention.

The Court points to the importance of paragraph 3 of Article 5, which, combined with paragraph 1 (c), provides safeguards against arbitrary deprivations of liberty. The requirement of “promptness”, inter alia, protects suspects from extended detention in the hands of the police or the administrative authorities.

It also points out that Article 5 § 3 of the Convention requires the courts to review the circumstances militating for or against detention and to decide, by reference to legal criteria, whether there are reasons justifying detention, and to order release if there are none. It also requires the courts themselves to hear the individual brought before them (see the Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34, pp. 13-14, § 31). It follows from the foregoing that a deprivation of liberty under Article 5 § 1 (c) cannot continue beyond a period regarded as corresponding to the concept of “brought promptly” unless the judge or other officer has himself heard the person brought before him and examined the reasons militating for or against detention.

The Court reiterates, however, that each case has to be examined according to its special features in order to determine whether the authorities have complied with the requirement of promptness (see the De Jong, Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, pp. 24-25, § 52, and the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, pp. 32-33, § 59). It also reiterates that exceptional circumstances can justify a longer time elapsing before a person arrested or detained is brought before a judicial authority (see the De Jong, Baljet and Van den Brink judgment cited above, opinion of the Commission, pp. 36-37, § 89).

On the facts of the present case, the applicant was undoubtedly deprived of his liberty, since he was detained on a vessel belonging to the Spanish customs, and that detention lasted for sixteen days without his being “brought promptly” before the investigating judge. That deprivation of liberty indisputably falls within the scope of Article 5 of the Convention. The issue is therefore whether it complied with the conditions laid down in Article 5 § 3.

The Court points out that the question whether the condition of promptness laid down by Article 5 § 3 of the Convention is or is not satisfied must be assessed firstly in the light of legislative provisions in force in the country concerned (see the McGoff v. Sweden judgment of 26 October 1984, Series A no. 83, opinion of the Commission, pp. 31-32, § 28). In this connection, it notes that both the Audiencia Nacional and the Constitutional Court, which is the supreme guarantor of fundamental rights and freedom in Spain, found, after a detailed examination of the exceptional circumstances of this case, that the applicant had been detained on the orders and under the strict supervision of the Central Investigating Court, and in compliance with the relevant legislation.

The Court nevertheless considers that a period of sixteen days does not at first sight appear to be compatible with the concept of “brought promptly” laid down in Article 5 § 3 of the Convention. Accordingly, only wholly exceptional circumstances could justify such a period. It must therefore examine whether there were such exceptional circumstances in the instant case.

The Court notes on this point that the applicant’s detention lasted for sixteen days because the vessel under his command was boarded on the high seas of the Atlantic Ocean at a considerable distance – more than 5,500 km – from Spanish territory and that no less than sixteen days were necessary to reach the port of Las Palmas. On that point the applicant himself acknowledged that, owing to the resistance put up by certain members of the crew, the Archangelos could not set sail again until forty-three hours after it had been boarded. That delay cannot therefore be attributed to the Spanish authorities. Ultimately, it was all those circumstances which prevented the applicant from being brought before the judicial authority sooner. Having regard to the foregoing, the Court considers that it was therefore materially impossible to bring the applicant physically before the investigating judge any sooner. The Court notes on this point that once he had arrived at Las Palmas, the applicant was transferred to Madrid by air and that he was brought before the judicial authority on the following day. The Court considers unrealistic the applicant’s suggestion that the Spanish authorities could have requested assistance from the British authorities to divert the Archangelos to Ascension Island, which is after all approximately 890 nautical miles (about 1,600 km) from where the vessel was boarded.

That being so, the Court considers that, having regard to the wholly exceptional circumstances of the instant case, the time which elapsed between placing the applicant in detention and bringing him before the investigating judge cannot be said to have breached the requirement of promptness in paragraph 3 of Article 5. It follows that the remainder of the application must be dismissed as being manifestly ill-founded, pursuant to Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

RIGOPOULOS v. SPAIN DECISION