Communicated on 24 February 2021 Published on 15 March 2021

FIRST SECTION

Application no. 25344/20 Miriam FRIEDRICH against Poland and 17 other applications (see list appended)

STATEMENT OF FACTS

1 . A list of the applicants is set out in the appendix.

2 . The facts of the case, as submitted by the applicants, may be summarised as follows.

3 . All the applicants are Greenpeace activists. They all took part in the protest in Gdańsk which is described below.

4 . The first applicant is an Austrian national. At the time of the material events, she was the helmswoman of RHIB no. 4.

5 . The second applicant is a Spanish national. At the time of the material events, he was the captain of the Rainbow Warrior.

6 . The remaining sixteen applicants (“the sixteen applicants”) are either Polish or of other nationalities (as listed in the Annex). At the time of the material events, they were on board the Rainbow Warrior.

7 . Greenpeace launched an international campaign, the “European Energy Transition Project” to encourage national economies to phase out coal rapidly in the light of the climate emergency and to make the transition from fossil fuels to renewable energy. The campaign included a series of peaceful protests such as the one which is the subject of the present application.

8 . On 9 September 2019 the first applicant was on board the Greenpeace Rainbow Warrior sailing vessel, flying the flag of the Netherlands.

9 . At about 5 p.m. the Rainbow Warrior anchored at the entrance to the Polish coal port in Gdańsk, effectively blocking a cargo ship carrying coal imported from Mozambique and preventing it from entering the seaport and unloading.

10 . At approximately 5.30 p.m. several Greenpeace activists and journalists boarded four RHIBs (rigid-hull inflatable boats) and approached that cargo ship. The applicant was the helmswoman of the RHIB (RHIB no. 4) carrying three journalists who were to report on the protest.

11 . The activists painted a slogan “Poland Beyond Coal 2030” on the cargo ship ’ s hull and displayed banners saying “No Future in Coal”.

12 . During this time, the crew of the Rainbow Warrior broadcast a radio message to the harbour authorities and to the Border Guard, informing them that their protest was of a peaceful nature.

13 . The protest was live-streamed on the Internet and quickly attracted nationwide medi a attention.

14 . At approximately 8 p.m. the first applicant ’ s RHIB was approached by an armed Border Guard unit. Several officers boarded the RHIB, pointing their guns at the crew. They ordered the crew to stop filming.

15 . The officers subsequently told the three journalists to move to the Border Guard ’ s boat and, for approximately one hour, ran identity checks on them. During that time, the first applicant was told to stay in the RHIB. Her identity was later checked on board the Border Guard ’ s boat.

16 . The first applicant and the journalists subsequently remained under control of the Border Guard without being clearly informed of their status.

17 . At 11 p.m. the Border Guard told the first applicant and the journalists that they were free to go but did not allow them to return to their RHIB. The Border Guard ’ s boat then drifted in the are a with the first applicant and the journalists.

18 . At 4 a.m. on 10 September 2019, after one journalist claimed to have a medical condition, the group was moved ashore.

19 . On 10 September 2019 the first applicant was formally arrested and charged with failing to obey an order of a person authorised to control traffic, namely to stop the ship (art. 178b of the Criminal Code).

20 . She was informed of the charge and her rights in English.

21 . The arrest report recorded the date of arrest as 10 September 2019 at 3.55 a.m. The applicant wrote a note on the statement, declaring that she had been arrested on the previous day at 8 p.m.

22 . On 10 September 2019 at 7 a.m. the first applicant was released.

23 . At approximately 11 p.m. on 9 September 2019, the armed Border Guard boarded the Rainbow Warrior. At that time, about twenty activists, including the sixteen applicants, were on board the vessel. The officers pointed their unlocked guns at the activists and smashed a window on the captain ’ s bridge.

24 . The Border Guard took complete control of the crew. The activists were at first cordoned together in the bow of the vessel. They were not allowed to communicate with each other or make any movement. They were not allowed to film the scene.

25 . Two hours after boarding the vessel, the officers started the identity check of the activists, one by one. Having completed the check, the officers moved the activists to the wardroom. Going to the toilet was possible only with an officer ’ s permission and under escort.

26 . The activists were at no point informed about their status. They were not allowed to contact or receive communications from their lawyers either.

27 . The activists ’ lawyers, who were trying to reach the Border Guard, could not obtain any information about the situation unfolding. The lawyers ’ written requests remained without confirmation of receipt and unanswered. One such request went through. It was denied, and no reasoning was provided.

28 . Either at 3.30 a.m. or at 6 a.m. on 10 September, the Border Guard officers left the ship.

29 . At 3.31 a.m. on 10 September, the Border Guard took the second applicant and two crew members from the Rainbow Warrior ashore.

30 . The second applicant was formally arrested and charged with failure to obey an order of a person authorised to control traffic (art. 178b of the Criminal Code), namely to stop the ship.

31 . He was informed of the charge and his rights in English.

32 . The arrest report recorded the date of arrest as 10 September 2019 at 3.31 a.m.

33 . The applicant was released at 6.05 on 10 September.

34 . On 16 September 2019 a lawyer lodged an appeal on behalf of all the applicants, arguing that their deprivation of liberty and restriction of movement were unlawful and unjustified and, as such, in breach of Polish law and Article 5 of the Convention.

35 . In respect of the first applicant and the second applicant, the lawyer argued, inter alia , that: (i) the measure had not been called for in the absence of a reasonable suspicion that they had committed a criminal offence, as well as of the risk that they would flee; (ii) the applicants had only been informed about the reasons for their arrest, about their rights and about a possibility to have an interpreter present, at approximately 5 a.m. on 10 September, whereas they had been deprived of their liberty already on 9 September at 8 p.m. for the first applicant and at 11 p.m. for the second applicant; and (iii) the time of the applicants ’ respective arrests had been registered incorrectly, disregarding the fact that they had been deprived of their liberty not on 10 September at 3.55 a.m. but already on 9 September at 8 p.m. for the first applicant and at 11 p.m. for the second applicant.

36 . In respect of the remaining applicants, the lawyer argued, inter alia , that: (i) the measure had not been called for, in the absence of a reasonable suspicion that they had committed a criminal offence, as well as of a risk that they would flee; (ii) the applicants had not been informed about the reasons for their arrest and about their rights immediately after their respective arrests on 9 September, at 8 p.m. for the third, the fourth and the fifth applicants, and at 11 p.m. for the remaining applicants; (iii) reports had not been made of the applicants ’ arrests; (iv) depriving the applicants of their liberty in the context of their social and public interest activity constituted a form of repression and restriction of the applicants ’ “fundamental rights”.

37 . In respect of all the applicants combined, the lawyer argued that the contact between the applicants and their lawyers had been impeded until 10 September at 5 a.m.

38 . On 24 October 2019 the lawyers extended the above-mentioned appeal by arguing that all the applicants had been subjected to unlawful and unjustified restriction of movement, in violation of Article 2 of Protocol no. 4 to the Convention.

(a) In respect of the first and the second applicants

39 . On 6 November 2020 the Gdańsk-Południe District Court ruled in respect of the arrests of the first and the second applicants.

40 . The court dismissed their appeal on the grounds that the arrest was lawful and justified. In particular, the limitation of their movement for the purpose of an ID check did not constitute deprivation of liberty. The court considered that the applicants ’ arrest was effected on 10 September as recorded in the respective arrest reports. To that end, the court reasoned that the officers ’ activities, such as vessel inspection or identity checks of the crew, did not qualify as detention. Moreover, the applicants had been suspected of a specific criminal offence. A lawyer had been present when the respective arrest reports had been drawn up and the applicants had been informed of their rights in English, which was the language they spoke. The court did not examine the applicants ’ arguments about the restriction of movement in breach of Article 2 of Protocol no. 4 to the Convention.

41 . On 13 November 2019 that decision was served on the applicants ’ lawyer.

(b) In respect of the remaining sixteen applicants

42 . On 6 November 2020 the Gdańsk-Południe District Court issued a decision to leave without examination the appeal in respect of the remaining twenty applicants on the grounds that it was inadmissible in law.

43 . The court found that the applicants in question had not been deprived of their liberty but had only been subjected to the procedure of identity checks and vessel inspection. The court relied on the principle that the lack of freedom to walk away while a procedure was underway did not automatically constitute a deprivation of liberty. The crucial element of assessment was whether, when the procedure was completed, the persons were free to walk away. In the circumstances of the case, even though the applicants had not been free to move or to walk away while the officers had been carrying out their checks and inspections, once that procedure had been completed, the applicants had been able to leave.

44 . The court also observed that, in view of the above, the officers had not had a duty to draw up an arrest report or to inform the applicants of their rights.

45 . Lastly the court observed that subjecting the applicants to the Border Guard control was justified in view of the fact that the Rainbow Warrior and RHIB no. 4 had disregarded the signals issued by the Border Guard and had, in the officers ’ judgment, posed a serious threat to the maritime traffic, in particular by coming very close to a large cargo vessel. The court found irrelevant the arguments about the peaceful nature of the protest.

46 . On 13 November 2019 that decision was served on the applicants ’ lawyer.

47 . The criminal proceedings against the first and the second applicants for failure to comply with the lawful order of a competent officer enforcing the law are ongoing. The indictment has been lodged with the GdaÅ„sk ‑ PoÅ‚udnie District Court.

COMPLAINTS

48 . The first applicant complains under Article 5 §§ 1 and 2 of the Convention. She specifies that, contrary to what was formally recorded as the time of her arrest, her deprivation of liberty lasted from the moment when the Border Guard boarded her RHIB and took control over her, impeding her movement. She thus argues that her deprivation of liberty, from 9 September at 8 p.m. until 10 September at 4 a.m., was unlawful, arbitrary and unjustified.

49 . In the alternative, the first applicant also complains under Article 2 of Protocol no. 4 to the Convention that the Border Guard impeded her from moving freely on board her RHIB for seven hours, and that such restriction was unjustified.

50 . The first applicant complains that because her deprivation of liberty was formally recorded as starting only at 3.55 a.m. on 10 September, she was unable to appeal against the fact that she had actually been deprived of liberty and restricted in her movement already on 9 September at 8 p.m. She invokes Article 13 of the Convention.

51 . The second applicant complains under Article 5 §§ 1 and 2 of the Convention. He specifies that, contrary to what was formally recorded as the time of his arrest, his deprivation of liberty lasted from the moment when the Border Guard boarded the Rainbow Warrior and took control over him, impeding his movement. He thus argues that his deprivation of liberty lasted from 9 September at 11 p.m. until 10 September at 6.05 a.m., and that it was unlawful, arbitrary and unjustified.

52 . In the alternative, the second applicant complains under Article 2 of Protocol no. 4 to the Convention that the Border Guard impeded him from moving freely on board the Rainbow Warrior, and that such restriction was unjustified.

53 . The second applicant also complains that because his deprivation of liberty was formally recorded as starting only at 3.31 a.m. on 10 September, he was unable to appeal against the fact that he had actually been deprived of liberty and restricted in his movement already on 9 September at 11 p.m. He invokes Article 13 of the Convention.

54 . The remaining sixteen applicants complain under Article 5 §§ 1 and 2 of the Convention. They argue that cordoning them and preventing them from moving freely on board the Rainbow Warrior constituted a de facto deprivation of liberty. The measure was unlawful, arbitrary and unjustified.

55 . In the alternative, the applicants complain under Article 2 of Protocol no. 4 to the Convention that the Border Guard impeded them from moving freely on board of the Rainbow Warrior for seven hours, and that such restriction was unjustified.

56 . They also complain that because the authorities had not acknowledged that the above-mentioned restrictions on liberty and movement had constituted deprivation of liberty, they were not entitled to have the lawfulness and the justification of the measure reviewed by a court of law. They invoke Article 13 of the Convention.

57 . All the applicants complain under Articles 10 and 11 of the Convention that the intervention of the Border Guard constituted a disproportionate limitation of their right to freedom of expression and freedom of assembly. They argue that they were participating in a peaceful protest, addressing an important social issue (climate protection), and that the use of the special Border Guard unit, armed with machine guns, and their lengthy detention were aimed at intimidating them and discouraging them from protesting.

QUESTIONS TO THE PARTIES

I. In respect of all applicants:

1. Were the applicants “deprived of their liberty” within the meaning of Article 5 of the Convention from the moment when the Border Guard took control of the Rainbow Warrior or RHIB no.4, respectively, on 9 September 2019 and until the officers ’ departure on 10 September 2019?

2. If so, was that detention compatible with Article 5 §§ 1 and 2 of the Convention?

In particular, was the applicants ’ detention “in accordance with a procedure prescribed by law” and was it properly recorded? Moreover, were the applicants informed of their rights?

3. In so far as the first, the second and, moreover, the remaining applicants alleged that they had not had at their disposal an effective domestic remedy to challenge their deprivation of liberty, was the procedure by which the applicants sought to challenge the lawfulness of their detention in conformity with Article 5 § 4 and/or Article 13 of the Convention?

4. Has there been a restriction of the applicants ’ right to liberty of movement, guaranteed by Article 2 § 1 of Protocol No. 4? If so, was that restriction in accordance with the law and necessary in terms of Article 2 § 3 of Protocol No. 4?

5. Was there an interference with the applicants ’ freedom of expression, in particular their right to hold opinions and to impart information, within the meaning of Article 10 § 1 of the Convention?

6. Was there an interference with the applicants ’ freedom of assembly, within the meaning of Article 11 of the Convention?

7. To the extent that any interference was derived from the events on 9 and 10 September 2019, was it “prescribed by law” and was it necessary in terms of Article 10 § 2 and Article 11 § 2 of the Convention?

8. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 2 of Protocol No. 4 to the Convention, as required by Article 13 of the Convention?

II. In respect of the first and the second applicants:

9. Was the applicants ’ detention, as formally recorded on 10 September 2019 until their release later that day, compatible with Article 5 of the Convention?

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant

Year of Birth

Nationality

Represented by

1.

25344/20

Friedrich v. Poland

16/06/2020

Miriam FRIEDRICH

1991Austrian

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

2.

25623/20

Romo Martin v. Poland

16/06/2020

Fernando ROMO MARTIN

1971Spanish

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

3.

27369/20

Bojarowsk a v. Poland

26/06/2020

Natali a BOJAROWSKA

1992Polish

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

4.

27378/20

Wojczal v. Poland

26/06/2020

Rafal WOJCZAL

Polish

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

5.

27381/20

Bogeljic v. Poland

26/06/2020

Mihael a BOGELJIC

1978 Croatian

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

6.

27388/20

Waqanisau v. Poland

26/06/2020

Api WAQANISAU

1986Fidjien

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

7.

27390/20

Brewster v. Poland

25/06/2020

Neil BREWSTER

1964Australian

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

8.

27401/20

Figur a v. Poland

26/06/2020

Magdalen a FIGURA

1976Polish

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

9.

27437/20

Muñoz-Alcaide v. Poland

26/06/2020

Alonso MUÑOZ-ALCAIDE

1966Spanish

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

10.

27831/20

Cibor v. Poland

26/06/2020

Krzysztof CIBOR

1975Polish

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

11.

27912/20

Simeonov v. Poland

26/06/2020

Krasimir SIMEONOV

1972Bulgarian

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

12.

27938/20

Scholz v. Poland

26/06/2020

Sinj a SCHOLZ

1980German

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

13.

28028/20

Sasinowsk a v. Poland

25/06/2020

Agat a SASINOWSKA

1992Polish

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

14.

28185/20

Tripoli v. Poland

26/06/2020

Francesco TRIPOLI

1980Italian

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

15.

28400/20

Deutschmann v. Poland

26/06/2020

Ocke DEUTSCHMANN

1982German

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

16.

28623/20

Radkiewicz - Malinowsk a v. Poland

26/06/2020

Edyt a RADKIEWICZ-MALINOWSKA

1983Polish

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

17.

29665/20

Zieliński v. Poland

30/06/2020

Maksymilian ZIELIŃSKI

1991Polish

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA

18.

29786/20

Staszewski v. P oland

30/06/2020

Bartosz STASZEWSKI

Polish

Adam PŁOSZK A and Mari a Joann a RADZIEJOWSKA