Friday, December 5, 2014

Somali Pirates Win Compensation After Errors in Procedure

France Faced with Thousands of Euro's in Penalties
Shipping News Feature

EUROPE – SOMALIA – The European Court of Human Rights (ECHR) has ruled that France has, on two separate occasions, violated the rights of Somali nationals who had been arrested on piracy charges, after hijacking French registered vessels off the coast of Somalia in 2008. This ruling by the ECHR means that the nine Somalis involved in the two cases, are set to receive thousands of euros each in compensation.

The first case (Ali Samatar and others v. France) centres around six Somali nationals: Abdurahman Ali Samatar, Ismael Ali Samatar, Abdulqader Guled Said, Mohamed Said Hote, Abdullahi Yusuf Hersi, and Daher Guled Said. They were prosecuted in France for acts of piracy for their part in the hijacking of the cruise ship, the Ponant, which saw around a dozen men armed with assault rifles and rocket launchers, take possession of the vessel and hold the 30 crewmembers on board hostage, on 4 April 2008. A few days later, while the Ponant was moored off the Somali port of Garacad, the hostages were released in return for a ransom of $2.15 million. On that same day the aforementioned six Somalis were intercepted by the GIGN (intervention brigade of the French Gendarmerie) just as they were leaving Garacad in a four-wheel-drive vehicle.

The second case (Hassan and others v. France) focuses on three Somalis: Yacoub Mohammed Hassan, Cheik Nour Jama Mohamoud and Abdulhai Guelleh Ahmed. Also prosecuted for acts of Piracy, the three men were part of an attack on the yacht, Carré d’As, on 2 September 2008, which saw around 13 men hold a French couple for a ransom of $2 million with demands that the pirates arrested in relation to the Ponant attack be released. Around ten days later, the French Navy managed to arrest six of the pirates involved and free the hostages.

The European Court of Human Rights held, unanimously, that there had been a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights in the case of Hassan and Others, as the French system applicable at the relevant time had not sufficiently guaranteed the applicants’ right to their liberty.

A violation of Article 5 § 3 (right to liberty and security) was found in both cases, as the applicants had been taken into custody for 48 hours on their arrival in France instead of being brought ‘promptly’ before a legal authority, when they had already been deprived of their liberty for four days and some twenty hours (Ali Samatar and Others) and six days and sixteen hours (Hassan and Others).

The Court was prepared to admit that ‘wholly exceptional circumstances’ explained the length of the detention, in both cases, between their arrest and their arrival in France. The French authorities had intervened off the coast of Somalia, 6,000 kilometres from mainland France, to repress acts of piracy of which vessels flying the French flag and a number of its citizens had been victims, in an area where piracy was becoming alarmingly rife. As the Somali authorities lacked the capacity to deal with such offences and, in the present case, to ensure that the applicants stood trial, the French authorities had decided to take them back to France.

There was no evidence to suggest that the transfer had taken longer than necessary, particularly in the light of the difficulties relating to the organisation of such an operation from a sensitive area like the Horn of Africa, and given that the flights to France had been arranged in both cases as soon as the Somali authorities had given their permission.

The Court noted, however, that on their arrival in France the applicants had been taken into police custody for 48 hours rather than being brought immediately before an investigating judge. There was nothing to justify that additional delay in either of the two cases.

The Court held that France had to pay to each of the applicants in the case of Hassan and Others €5,000 in respect of non-pecuniary damage, and over €7,000 to Abdulhai Guelleh Ahmed for costs and expenses. In Ali Samatar and Others, €2,000 is awarded to each of the applicants in respect of non-pecuniary damage. For costs and expenses, €9,000 to Abdurahman Ali Samatar, €6,000 jointly to Ismael Ali Samatar, Abdulqader Guled Said, Mohamed Said Hote, Abdullahi Yusuf Hersi and Daher Guled Said, and €3,000 to Abdulqader Guled Said.

Although many will consider it ridiculous to pay compensation to known pirates the case is not as clear cut as it first appears. At least two of the defendants were found not guilty by the French Court, but only after having been held in custody for four years alongside the others arrested. These were the men taken into custody after leaving the port in a vehicle but never proved to have been aboard the Ponant.

Photo, from left to right: Abdurahman Ali Samatar, Abdulqader Guled Said and Abdullah Youssouf Hersi on 15 June 2012 a day after being released from the notorious La Santé prison in Paris.