News BlogEast Africamaritime piracy

(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 European Union's EUNAVFOR Atalanta operation and above all to set the conditions and modalities for the transfer of suspects. European diplomats believe that this document (in particular its § 4 and 5) provides sufficient guarantees so that the death penalty is not applied and that suspects are not subjected to degrading or inhuman treatment (as prohibited by law). UN convention of 1984). This position may be reviewed, in the event of “serious doubts” about compliance with the provisions of the international convention, it is indicated in Brussels.

A real extradition agreement

An exchange of letters took place between the European Union and Kenya at the end of November and the beginning of December. This document – ​​which should be published in the Official Journal of the EU – ratifies 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 transferred persons. 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 jurisdictional system (except EULEX in Kosovo). We can also note, without any irony, that the list of rights set for prisoners (which are nothing less than fundamental rights) is not precisely respected in several EU member states.

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 authorization from EUNAVFOR.

2° Any transfer requires the signature of the EUNAVFOR representative 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 persons transferred as well as previous data. This 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) worsening of their physical condition or any allegations of ill-treatment.

5° Representatives of the EU or EUNAVFOR may have access to transferred persons as long as they are in preventive 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 (affidavit), delivery of seized property…

7° Any dispute or problem of interpretation between the EU and Kenya will be resolved diplomatically.

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 appear quickly before a judge or 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 quickly and in detail, in a language that she can understand, of the nature and reason of the charges brought against her, must have adequate time and means to prepare her defense and communicate with the counsel of her 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 your means do not allow you to pay for advice.

7° Right to examine the evidence amassed against her as well as to read the testimony against her.

8° Right to free assistance from an interpreter if she does not understand or speak the language of the Court.

9° Right not to testify against her or to admit her 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 crimes. 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 opinion 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).

 (NGV)

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).