(exclusive) Agreement with Kenya for the transfer of pirates

(B2) The ambassadors of the 27 must, this Wednesday (February 25), endorse an exchange of letters with Kenya, making it possible to bring to Kenyan justice some of the pirates (*) arrested by the EUNAVFOR Atalanta operation of the European Union and above all to set the conditions and procedures for the transfer of suspects. European diplomats consider that this document (in particular its § 4 and 5) provide sufficient guarantees so that the death penalty is not applied and that the suspects are not subjected to degrading or inhuman treatment (such as the ban on 1984 UN Convention). This position may be reviewed, in the event of "serious doubts" about compliance with the provisions of the international convention, it is said in Brussels.

A real extradition agreement

An exchange of letters had taken place between the European Union and Kenya at the end of November, beginning of December. This document - which should be published in the Official Journal of the EU - endorses this exchange and thus amounts to a real extradition agreement. It contains, in fact, a number of details on the transfer procedure as well as on the rights of the persons transferred. It gives EUNAVFOR representatives a power of verification and control over the fate of the prisoner that few managers of military operations normally have in a traditional judicial system (except EULEX in Kosovo). One can also notice, without any irony, that the list of rights fixed to the prisoner (which are neither more less the fundamental rights) is not precisely respected in several Member States of the EU.

NB: the numbering below has been made to facilitate reading and therefore does not fully correspond to the decision which will be published in the OJEU

The transfer procedure

1° Kenya accepts the transfer of persons detained by EUNAVFOR in connection with piracy and transfers them to the competent authority for investigation and prosecution (same for seized property). He will not be able to transfer this person to another State without the authorization of EUNAVFOR.

2° Any transfer requires the signature of the representative of EUNAVFOR and that of the competent representative of the Kenyan legal authorities.

3° EUNAVOR will provide Kenya with data on the transferred person with, as far as possible: the physical condition of the transferred person, the duration of the transfer, the reason for the detention, the beginning and the place of the beginning of the detention, as well as any decision taken with regard to his detention.

4° Kenya will be responsible for keeping an accurate account of all transferred persons as well as previous data. These data will be accessible to the EU and EUNAVFOR (upon written request to the Kenyan Minister of Foreign Affairs). Kenya will also notify EUNAVFOR of the place of detention of any transferred person, as well as any (possible) deterioration in their physical condition or any allegation of ill-treatment.

5° The representatives of the EU or of EUNAVFOR will be able to have access to the transferred persons as long as they are in pre-trial detention. International or national agencies
humanitarian organizations may, at their request, be authorized to visit the transferred persons.

6° EUNAVFOR shall provide assistance to the Kenyan authorities, to the extent of its resources and possibilities: hand over detention data, evidence, statements of testimony or affidavit (sworn statement), return of seized property...

7° Any dispute or problem of interpretation between the EU and Kenya will be settled through diplomatic channels.

The rights of the transferred person

1° Right to be treated humanely and not to be subjected to torture, degrading, inhuman or cruel treatment or punishment; receive adequate housing and food, access to medical treatment and be able to perform their religious rites.

2° Right to go quickly before a judge or a judicial officer who must decide without delay on the legality of the detention and order his release if it is not legal.

3° Right to be brought before a court within a reasonable time or to be released.

4° Right to a public and fair hearing by a court established by law, impartial, independent, competent.

5° Any person transferred, suspected of a criminal act, is presumed innocent. (**)

6° Right to be informed promptly and in detail, in a language they can understand, of the nature and reason for the charges against them, must have adequate time and means to prepare their defense and communicate with the counsel of their choice . Be judged in his presence, and will be able to defend himself alone or through the legal assistance of his choice. Benefit from legal aid, if his means do not allow him to pay for counsel.

7° Right to examine the evidence gathered against her and to read the evidence against her.

8° Right to the free assistance of an interpreter if he cannot understand or speak the language of the Court.

9° Right not to testify against him or to confess guilt.

10° Right to appeal the sentence to a higher tribunal, according to the law in force in Kenya.

11° The death penalty cannot be applied. Kenya will have to commute the sentence to a prison term.

(*) to be more exact, there are two distinct offences. We speak of acts of "piracy" when they are committed on the high seas, and of "armed robbery" when they are committed in territorial waters.

(**) This should imply in my view that any photos of "suspected pirates" should first be blurred (or made unrecognizable) by the warships which apprehend these people (and by the journalists who publish them).