On 2 September 2008, a French sailboat, the Carré d'As, was attacked in the international waters of the Gulf of Aden by persons of Somali nationality and diverted to the Somali coast. A ransom was demanded for the release of the hostages. On 16 September 2008, while the sailboat was in Somali territorial waters, a military operation was carried out by French forces in order to free the hostages. Six people were apprehended and transferred to the frigate Courbet, a vessel of the French national navy, which headed for Djibouti. On 21 September 2008, the Somali authorities, by note verbale, authorised the transfer to France of the six Somali nationals. The six suspects were transported to France on a French military plane. Upon their arrival on French soil on 23 September 2008, the suspects were handed over by the lieutenant, responsible for the detachment of the French commandos, to the judicial police officer in charge of the criminal investigation. The six suspects were subsequently convicted.

They then appealed against the judgment of the Investigative Chamber of the Paris Court of Appeal, 1st Section, dated 6 October 2009, which confirmed their convictions for hijacking, seizure, and kidnapping of people with a view to obtaining the payment of a ransom as part of an organised criminal group.

The appellants argued that their convictions violated arts 5 § 1 and 5 § 3 of the European Convention for the Protection of Human Rights, art 113-3 of the Penal Code, arts 105 and 108 of UNCLOS, and arts 591 and 593 of the Code of Criminal Procedure. They contended that the extraterritorial extension of French criminal law cannot be interpreted as making a ship flying the French flag an itinerant parcel of the territory of the French Republic in a general and absolute manner, and that the French legislator cannot validly, unilaterally and automatically attach national sovereignty to a ship wherever it may be, including when it is in the territorial waters of a foreign State. Article 113-3, which concerns only the substantive penal law, further does not justify the application of the provisions of the Code of Criminal Procedure relating to investigations in the territorial waters of a foreign State, which would, moreover, be contrary to the principle of sovereignty of that State. Articles 689-1 and 689-5 of the Code of Criminal Procedure, which, in the alternative, give jurisdiction to the French courts to hear illegal acts against the safety of maritime navigation defined by the Rome Convention of 10 March 1988 (the SUA Convention 1988), do not justify the application of the provisions of the Code of Criminal Procedure relating to investigations in the territorial waters of a foreign State. Within the meaning of art 105 of UNCLOS, the seizures made fall within a framework which is not that of judicial investigation. 'Seizure' within the meaning of UNCLOS, and in particular arts 105, 106 and 107, does not have the same legal meaning as, and does not constitute, an act of criminal procedure.

Held: Appeal dismissed.

The Investigating Chamber justified its decision without disregarding the domestic legal and Convention provisions invoked. The French military authorities regularly apprehend persons suspected of engaging in acts of piracy and seize property in their possession on the basis of Resolution 1816 adopted by the United Nations Security Council on 2 June 2008 authorising States, in Somali territorial waters, to use the powers conferred on them, on the high seas or in any other place not under the jurisdiction of any State, by art 105 of UNCLOS. The transfer to France of persons apprehended for presentation to a judge was subject to the prior agreement of the Somali authorities on 21 September 2008. Upon their arrival on French soil on 23 September 2008, the suspected persons were regularly placed in custody then presented on 25 September 2008 to an investigating judge.