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France adapts its penal code to modern piracy, a necessity

(BRUSSELS2) Everything is not over yet. But the bill on maritime piracy took a notable step forward, with the vote on Thursday, November 25 at first reading in the National Assembly. Once the vote, in 2nd reading, in the Senate, which should take place quickly (*), French law will be modernized on two main points: the definition of the offense of piracy and the procedure to follow in the event of arrest of pirates. This meets a legal, political and operational necessity.

Two main points are problematic in the current penal code

The French penal code has, in fact, become not obsolete to combat modern piracy, especially in the Indian Ocean, but rather outdated. Two points need to be reviewed: the definition of the offense of piracy and the procedure applicable on ships.

Concerning the definition of the offense of piracy, there is no longer a general definition since a law of December 20, 2007 (on the “simplification of law”!) which removed the old royal law of 1825 on the safety of navigation and maritime commerce which included general provisions on piracy. Only residual provisions remain in the law: if the act of piracy occurred in French territorial waters (we then speak of “armed robberies at sea”, which is not negligible, given the extent overseas possessions) or if a French ship or a French citizen is attacked (we then used the offense of kidnapping, theft or hostage-taking, etc.).

Because what mainly poses a problem for French law today is the question of procedure and the translation of the Medvedyev case law of the European Court of Human Rights (1). The new law which should soon appear in the official journal (2) is thus more consistent with international law of the sea and in particular with the Montego Bay Convention (3).

A political and operational necessity

The increase in incidents of “piracy”, including in territorial waters (Somalia, Kenya, etc.), the increasing complexity of maritime transport (where there are French interests even if there are no sailors or flags). French) as well as the need to better fight against piracy, by prosecuting pirates, lead to an evolution of the law. It would have been, in fact, paradoxical for France to have had significant French political and military involvement in the fight against piracy (notably the EUNavfor Atalanta operation and marine riflemen on board Breton tuna boats) and to retain a right limiting the prosecution of suspects.

A fairly broad scope of the piracy offense

From a technical legal point of view, the French legislator has chosen to rely on existing offenses (hijacking of a ship, kidnapping or sequestration, participation of criminals) to define the act of piracy. And the definition of the offense is now broader: at the geographical level, it encompasses not only the high seas but also territorial waters.if international law allows it”. In terms of the time of the offense, it encompasses not only the act but also its preparation. And, in terms of the people involved, it makes it possible to apprehend not only the pirates but their accomplices.

As for the jurisdiction of French courts, it is not “universal”, for all offenses committed throughout the world on any boat (as permitted by the Montego Bay Convention). It simply includes one additional point: “when the arrest was made by French soldiers“. Thus, the French judge is therefore endowed, to use the words of the rapporteur of the National Assembly, Christian Ménard (UMP, Finistère), with “near-universal competence".

A procedure compliant with human rights

At the procedural level, the law establishes a system of deposit on board pirates, which is (more) “complies with the requirements of the ECHR“. The maritime prefect must be “at once” be informed, it is up to him to notify the Public Prosecutor. And the judge of freedoms will have to rule within 48 hours (4). An exam health suspects must be made within 24 hours of his arrest, then a medical exam within 10 days. (the use of different words corresponds to a specific difference, the health examination can be done by a nurse, the medical examination as its name indicates only by a doctor).

Finally, the text gives a legal basis to the preventive measures of “control and coercion under international law” as well as “seizure”Or“destruction” of the incriminated vessels. It also allows judicial police officers and national navy officers “specially empowered” to carry out the first findings and hearings. As much "niches” cancellation which thus disappear.

(*) Update (Friday evening): according to the latest information in my possession, inclusion on the agenda in the Senate could take place quickly, the government being determined that the law will be adopted before Christmas. And it should not pose any particular problem (except at the last minute). Because the amendments in the National Assembly are very close to those of the Senate. The 2nd reading could therefore be considered “compliant”. Which would lead to an end to the legislative procedure.

(Update Wednesday 22 p.m.) The Senate effectively adopted the bill, Wednesday, December 22, in 2nd reading. The law is therefore now definitively approved.

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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).