This was an appeal for a writ of habeas corpus brought by the appellants JHGR, CSO, and XFA on the grounds that they were detained at about 01h00 on 16 October 2021, when their boat was boarded at sea, but that the documents they 'were obliged to sign' stipulated arrest at a later time that exceeded the 48-hour deadline on detention.

Held: Appeal dismissed.

On 16 October 2021, the Portuguese Navy, within the scope of art 110 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS), intercepted and approached the suspect vessel, with a view to identifying it (name, registration, and flag), as well as its crew. Its details corresponded to a Spanish-flagged sailboat named the G Siro, with the three appellants on board. Later, in daylight, it was found that the sailboat was flying the flag of the Netherlands, and displaying a bolted-on plaque with the name 'MONKEY BAY ROTTERDAM'. However, there is no doubt about the identification of the vessel as the G Siro.

In possession of this information - the name of the vessel, its flag, and registration - the Treaty between the Portuguese Republic and the Kingdom of Spain for the Repression of Illicit Traffic of Drugs at Sea was triggered, in accordance with art 17.9 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (the 1988 Convention), since the information gathered pointed to the existence of strong suspicions that the vessel was involved in transporting narcotics.

As can be seen from the above, the Portuguese Navy's actions were limited to approaching the vessel, with a view to identifying it under the provisions of art 110 of UNCLOS, which regulates rights of visit:

1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:

(a) the ship is engaged in piracy;

(b) the ship is engaged in the slave trade;

(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;

(d) the ship is without nationality; or

(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

It is also necessary to consider art 17 of the 1988 Convention which provides:

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

2. A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them.

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 authorization 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 or arrangement otherwise reached between those Parties, the flag State may authorize 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. ...

Under this international mechanism, a bilateral treaty was signed between the Portuguese Republic and the Kingdom of Spain for the suppression of illicit traffic in drugs at sea.

The approach made to the sailboat on 16 October 2021 was exclusively intended to verify its identification, that is, to assess the legality of its passage. It was only after the boat was handed over by the Navy to the Judicial Police that the appellants were legally arrested and the objects related to the crime were seized. This entire process, carried out by the Judicial Police, took place on 17 October, and the accused were then handed over to the Public Prosecution Service for their first interrogation on 18 October, the day they were effectively heard and held in preventive detention, due to strong indications of a drug trafficking crime.

As mentioned by the Public Prosecution Service:

• The Navy did not act as a criminal police body, but in the interception of the vessel, which only it could do under the legitimacy conferred by art 17 of the 1988 Convention, within the scope, only, of due co-operation with the Judicial Police.
• The Judicial Police carried out the relevant criminal procedural investigations in this case after receiving police information sent by the Maritime Analysis and Operations Centre - Narcotics ..., reporting a possible transport of narcotics by sea; information which needed to be confirmed.
• The appellants were arrested and constituted as defendants at the appropriate moment, when the suspicion was objectified, which only happened after the search and seizure, at the precise moment in which it was confirmed by a rapid test, Type F - Scott reagent that the product they were carrying tested positive for cocaine, that is, a secure basis for charging them with the crime of drug trafficking ...

There was, therefore, no illegal detention of the appellants in this case. As a consequence, the appeal is dismissed.