Lexploria

Communicated on 6 December 2017

THIRD SECTION

Application no. 22515/14 Kieron John BRYAN and others against Russia lodged on 17 March 2014

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. They are represented by Mr J. Teulings and Mr S. Golubok , lawyers practising in Amsterdam and Moscow respectively.

A. The circumstances of the case

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

1. Arrest of the applicants

Since 2010 Greenpeace International and other national and regional Greenpeace organisations have been promoting a “Save the Arctic” campaign. The objective of the campaign is to “secure international agreement to create a global sanctuary in the uninhabited area around the North Pole and a ban on offshore oil-drilling and industrial fishing in Arctic waters”. In the course of this campaign Greenpeace has staged a number of peaceful protests at sea, including in August 2012 at the Russian offshore oil production platform Prirazlomnaya , located in the Pechora Sea within the exclusive economic zone of Russia (“the EEZ”). The Prirazlomnaya is operated by the Russian company Gazprom Neft Shelf LLC (“Gazprom”). It reportedly commenced oil production in December 2013.

In September 2013 the so-called “Arctic 30” (twenty-eight Greenpeace activists and two freelance journalists) travelled to the Pechora Sea on board a vessel called “Arctic Sunrise” flying the flag of the Netherlands. The activists intended to stage a peaceful protest at the same platform. They informed the Prirazlomnaya platform operator about their plan, supplying a description of the form the protest would take, in particular, the intention that some activists would scale the platform and establish a survival capsule where they would stay until Gazprom dropped its plans for oil-drilling in the Arctic. The Russian Coastguard was likewise informed about the forthcoming protest.

On 18 September 2013 five inflatable boats left the Arctic Sunrise and headed towards the Prirazlomnaya , carrying the survival capsule with them. The Arctic Sunrise remained outside the three-nautical-mile zone around the Prirazlomnaya . When the survival capsule ’ s towline snapped, the Arctic Sunrise retrieved the capsule, while the activists on the inflatable boats proceeded without it to the Prirazlomnaya platform.

Two of the applicants (Ms Sini Annuka Saarela and Mr Marco Paulo Weber) began scaling the outside structure of the platform with the aim of unfurling a banner protesting about the imminent commencement of oil production at the Prirazlomnaya platform. The activists did not intend to reach the deck or take control of the platform, the climbers ’ ropes having been attached about ten metres below the deck. In response to these actions the Russian Coastguard vessel “Ladoga” sent two unmarked inflatables, each manned by at least three Russian State agents wearing balaclavas and armed with weapons. The agents threw lines towards the motors of the Greenpeace inflatables and threatened the activists with guns and knives. After being sprayed by water cannon from the platform, the two climbers descended the platform. The Russian agents recovered them there and took them to the Ladoga. The Greenpeace inflatables returned to the Arctic Sunrise. The Ladoga then repeatedly radioed the Arctic Sunrise, ordering it to stop and to allow an investigation team on board on the grounds that the activists had attacked the Prirazlomnaya and were suspected of piracy and terrorism. The Arctic Sunrise refused to comply, arguing that it was in international waters, and requested the return of the two climbers. When agents from one of the Ladoga inflatables attempted to board the Arctic Sunrise, the latter undertook evasive manoeuvres. The Arctic Sunrise continued cruising in the vicinity of the Prirazlomnaya awaiting the return of the two climbers.

On 19 September 2013, after another order to stop and allow an investigation team on board, armed agents of the Russian Federal Security Service (“FSB”) boarded the Arctic Sunrise from a helicopter. The FSB agents took control of the ship and its crew. Some time later the two climbers were transferred from the Ladoga to the Arctic Sunrise.

On 20 September 2013 the commanding officer of the Ladoga issued a decision to move the Arctic Sunrise to the port of Murmansk in order to initiate against Captain Willcox administrative proceedings under the Code of Administrative Offences (“CAO”), Article 19.4-2, for failure to comply with the lawful order of a competent officer enforcing law within the EEZ to stop the ship and allow its inspection. From 20 to 24 September 2013 the Arctic Sunrise was towed to Murmansk.

2. Criminal proceedings against the applicants

On 24 September 2013, when the Arctic Sunrise entered Russian territorial waters near Murmansk, the Investigative Committee of the Russian Federation opened a criminal case against the applicants for piracy. The investigation was entrusted to a group of investigators led by Captain T. under the command of General M. On the same day the applicants were transferred from the Arctic Sunrise to the premises of the investigative authorities. On 24 and 25 September 2013 they were officially arrested as suspects.

On 26, 27 and 29 September 2013 (see the Appendix) the Leninskiy District Court of Murmansk (“the District Court”) authorised the applicants ’ detention until 24 November 2013. The District Court found that the prosecution had reasonable grounds to suspect the applicants of a particularly serious crime of piracy committed by a group of people and that the applicants, mostly foreign citizens, might abscond or interfere with the investigation. The applicants appealed against the detention orders, claiming that there were no grounds for introducing charges of piracy since the Prirazlomnaya was clearly not a ship. The applicants also asserted that their arrest and detention had been unlawful due to the failure to bring them before a judge within forty-eight hours of their actual arrest, among other considerations. The two journalist applicants (Mr Bryan and Mr Sinyakov ) also referred to their professional occupation and contended that they had been present only to cover the protest action.

On 2 and 3 October 2013 the applicants were charged with piracy.

On various dates between 8 and 24 October 2013 (see the Appendix) the Murmansk Regional Court (“the Regional Court”) upheld the applicants ’ detention orders on appeal. The Regional Court agreed in particular that the prosecution had reasonable grounds for suspecting the applicants of piracy, although the issues of objective and subjective elements of piracy as well as the weight of evidence pertaining thereto would be determined during the criminal proceedings against the applicants. As for the status of the Prirazlomnaya , the Regional Court noted that it was registered in the State Ship Registry with no mention of the word “platform”. The Regional Court also held that the applicants had not been detained while the Arctic Sunrise was being towed to Murmansk. After their arrival in Murmansk the applicants ’ arrest procedure had complied with the legal requirements and time limits. As for the two journalist applicants, the Regional Court refused to consider Mr Bryan as a journalist because he had had no current contract with any foreign publisher and was not accredited as a journalist on the territory of Russia. The Regional Court did not address the same argument as regards Mr Sinyakov .

On 21 October 2013 General M. wrote to Captain T. that it had been established that the Prirazlomnaya platform was not a ship but a port facility. That conclusion precluded criminal liability for piracy and the applicants ’ actions were therefore to be reclassified as hooliganism.

On 23 October 2013 Captain T. issued a decision to amend the charges against the applicants to hooliganism. On various dates between 24 and 31 October 2013 (see the Appendix) the applicants were charged with hooliganism.

On 11 and 12 November 2013 the applicants were transferred to St Petersburg. On various dates from 18 to 28 November 2013 (see the Appendix) the applicants were granted bail. Eventually, on various dates between 20 and 29 November 2013 (see the Appendix) the applicants were released.

On 18 December 2013 the Russian Parliament passed an act of amnesty of people accused or convicted of certain less serious offences (including hooliganism) to commemorate the twentieth anniversary of the Constitution of the Russian Federation. On 24 and 25 December 2013 the criminal prosecution against the applicants was discontinued due to the amnesty act.

On 14 August 2015 the arbitral tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea (“UNCLOS”) issued its award in the case brought by the Netherlands against the Russian Federation. The arbitral tribunal found that “by boarding, investigating, inspecting, arresting, detaining and seizing the Arctic Sunrise” and “by arresting, detaining and initiating criminal proceedings against the Arctic 30, the Russian Federation [had] breached obligations owed by it to the Netherlands as the flag State under Articles 56(2), 58(1), 58(2), 87(1 )( a) and 92(1)” of the UNCLOS. On 10 July 2017 the arbitral tribunal issued its award concerning the compensation to be paid by the Russian Federation to the Netherlands for the damage caused, including “non ‑ material damage to the Arctic 30 for their wrongful arrest, prosecution and detention” in the amount of 600,000 euros (EUR). The Russian Federation did not accept that the arbitral tribunal had jurisdiction over the case and did not participate in the proceedings.

B. Relevant domestic law

The Code of Administrative Offences of the Russian Federation provides as follows:

Article 19.4

Failure to follow the lawful order of a public officer of a body exercising State or municipal supervision (control)

“[...] 2. Failure to follow the lawful command of a public officer ( должностное лицо ) working for the body protecting the continental shelf or the exclusive economic zone of the Russian Federation to stop a vessel, and impeding the exercise by such a public officer of the powers conferred upon him, including inspection of a vessel,

- shall entail the imposition of an administrative fine ... in the amount of fifteen thousand to twenty thousand roubles.”

The Criminal Code of the Russian Federation provides as follows:

Article 227 Piracy

“1. Any assault on a sea-going ship or a river-going boat with the aim of capturing other people ’ s property, committed using violence or under the threat of its use, shall be punishable by deprivation of liberty for a term of five to ten years.

[...]

3. The actions referred to in the first or second part of this Article, if they have been committed by an organised group [...], shall be punishable by deprivation of liberty for a term of ten to fifteen years [...].”

COMPLAINTS

The applicants complain under Article 5 § 1 of the Convention that their initial arrest and detention were arbitrary and not in accordance with law.

The applicants further complain under Article 5 § 1 (c) of the Convention that their subsequent detention was not based on any reasonable suspicion of piracy.

The two journalist applicants complain under Article 10 of the Convention about the violation of their right to collect and disseminate information concerning the protest against oil production in the Arctic.

The remainder of the applicants complain under Article 10 of the Convention about the violation of their right to peaceful protest.

QUESTIONS TO THE PARTIES

1. Did the facts of which the applicants complain in the present case occur within the jurisdiction of Russia within the meaning of Article 1 of the Convention?

2. Were the two applicants who climbed onto the Prirazlomnaya platform on 18 September 2013 (Ms Sini Annuka Saarela and Mr Marco Paulo Weber) “deprived of their liberty” within the meaning of Article 5 of the Convention in the period from their arrest on 18 September 2013 and until their return to the Arctic Sunrise on 19 September 2013? If so, was that detention compatible with Article 5 § 1 of the Convention?

In particular, was the applicants ’ detention “in accordance with a procedure prescribed by law”, as required by Article 5 § 1 of the Convention? Did it conform to the substantive and procedural rules of national and/or international law? Was it based on a competent authority ’ s order and properly recorded as required by Article 5 § 1 of the Convention?

3. Were all applicants “deprived of their liberty” within the meaning of Article 5 of the Convention from 19 September 2013 when Russian agents took control of the Arctic Sunrise and Ms Sini Annuka Saarela and Mr Marco Paulo Weber were brought from the Ladoga to the Arctic Sunrise until their arrival in Murmansk on 24 September 2013? If so, was that detention compatible with Article 5 § 1 of the Convention?

In particular, was the applicants ’ detention “in accordance with a procedure prescribed by law”, as required by Article 5 § 1 of the Convention? Did it conform to the substantive and procedural rules of national and/or international law? Was it based on a competent authority ’ s order and properly recorded as required by Article 5 § 1 of the Convention?

4. What was the outcome of the administrative proceedings initiated against Captain Willcox under Article 19.4 of the Code of Administrative Offences of Russia in relation to his alleged failure to comply with a competent officer ’ s order to stop the ship and admit its inspection?

5. Was the applicants ’ detention from 24 September 2013 until their release in late November 2013 compatible with Article 5 § 1 (c) of the Convention? In particular, could there be a “reasonable suspicion” that the applicants had committed piracy, given that the Prirazlomnaya platform was not a ship?

6. Was there an interference with the applicants ’ freedom of expression, in particular their rights to hold opinions, and to receive and impart information, within the meaning of Article 10 § 1 of the Convention? To the extent that any interference derived from the events on 18 and 19 September 2013, was it “prescribed by law”?

If so, was that interference necessary in terms of Article 10 § 2 of the Convention?

Appendix

Surname

First name(s)

Date of birth

Nationality

The Leninskiy District Court of the town of Murmansk - date of placement in pre-trial custody

The Murmansk Regional Court – date of dismissal of the appeals against placement in custody

Date of hooliganism charges

Name of the court granting bail

Date of the court decision on bail

Date of release

AKHAN

Gizem

04/11/1988

Turkey

26/09/2013

16/10/2013

25/10/2013

Primorskiy District Court

21/11/2013

22/11/2013

ALLAKHVERDOV

Andrey

10/11/1962

Russian Federation

26/09/2013

08/10/2013

24/10/2013

Kalininskiy District Court

18/11/2013

21/11/2013

ALMINHANA MACIEL

Ana Paula

01/02/1982

Brazil

29/09/2013

24/10/2013

31/10/2013

Primorskiy District Court

19/11/2013

20/11/2013

BALL

Philip Edward

11/03/1971

United Kingdom

26/09/2013

11/10/2013

28/10/2013

Kalininskiy District Court

22/11/2013

25/11/2013

BEAUCHAMP

Jonathan David

04/05/1962

New Zealand

26/09/2013

16/10/2013

31/10/2013

Kalininskiy District Court

21/11/2013

22/11/2013

BRYAN

Kieron John

09/08/1984

United Kingdom

26/09/2013

11/10/2013

28/10/2013

Primorskiy District Court

20/11/2013

22/11/2013

D ’ ALESSANDRO

Cristian

06/12/1981

Italy

26/09/2013

15/10/2013

30/10/2013

Kalininskiy District Court

19/11/2013

21/11/2013

DOLGOV

Roman

10/10/1969

Russian Federation

26/09/2013

09/10/2013

24/10/2013

Kalininskiy District Court

22/11/2013

DZIEMIANCZUK

Tomasz

20/10/1976

Poland

26/09/2013

21/10/2013

30/10/2013

Kalininskiy District Court

19/11/2013

21/11/2013

HARRIS

Alexandra Hazel

16/08/1986

United Kingdom

26/09/2013

18/10/2013

29/10/2013

Primorskiy District Court

20/11/2013

22/11/2013

HAUSSMANN

David John

23/09/1964

New Zealand

26/09/2013

14/10/2013

30/10/2013

Primorskiy District Court

19/11/2013

21/11/2013

HEWETSON

Francis Patrick Michael

20/04/1965

United Kingdom

29/09/2013

15/10/2013

28/10/2013

Kalininskiy District Court

21/11/2013

22/11/2013

JENSEN

Anne Mie Roer

05/04/1987

Denmark

26/09/2013

18/10/2013

31/10/2013

Primorskiy District Court

20/11/2013

21/11/2013

LITVINOV

Dimitri

10/04/1962

USA and Sweden

29/09/2013

23/10/2013

29/10/2013

Kalininskiy District Court

22/11/2013

OULAHSEN

Faiza

19/08/1987

Netherlands

29/09/2013

18/10/2013

31/20/2013

Primorskiy District Court

20/11/2013

22/11/2013

PAUL

Alexandre

30/05/1978

Canada

26/09/2013

18/10/2013

28/10/2013

Primorskiy District Court

21/11/2013

22/11/2013

PEREZ ORSI

Miguel Hernan

08/05/1973

Argentina

26/09/2013

23/10/2013

28/10/2013

Kalininskiy District Court

19/11/2013

22/11/2013

PERRETT

Anthony Ian

12/11/1980

United Kingdom

29/09/2013

16/10/2013

29/10/2013

Kalininskiy District Court

20/11/2013

22/11/2013

PISANU

Francesco

03/02/1975

France

26/09/2013

16/10/2013

31/10/2013

Kalininskiy District Court

19/11/2013

21/11/2013

ROGERS

Iain

10/08/1976

United Kingdom

27/09/2013

22/10/2013

28/10/2013

Kalininskiy District Court

21/11/2013

22/11/2013

RUSSELL

Colin Keith

21/08/1954

Australia

26/09/2013

17/10/2013

30/10/2013

St Petersburg City Court

28/11/2013

29/11/2013

RUZYCKI

Paul Douglas

09/06/1965

Canada

26/09/2013

24/10/2013

31/10/2013

Primorskiy District Court

19/11/2013

22/11/2013

SAARELA

Sini Annukka

09/11/1981

Finland

29/09/2013

21/10/2013

30/10/2013

Primorskiy District Court

19/11/2013

21/11/2013

SINYAKOV

Denis

16/10/1977

Russian Federation

26/09/2013

08/10/2013

29/10/2013

Kalininskiy District Court

18/11/2013

21/11/2013

SPEZIALE

Camila

13/07/1992

Argentina

26/09/2013

14/10/2013

24/10/2013

Primorskiy District Court

19/11/2013

21/11/2013

UBELS

Mannes

26/06/1971

Netherlands

29/09/2013

17/10/2013

30/10/2013

Primorskiy District Court

20/11/2013

22/11/2013

WEBER

Marco Paolo

31/05/1985

Switzerland

26/09/2013

21/10/2013

30/10/2013

Kalininskiy District Court

20/11/2013

22/11/2013

WILLCOX

Peter Henry

06/03/1953

USA

26/09/2013

14/10/2013

28/10/2013

Kalininskiy District Court

20/11/2013

22/11/2013

YAKUSHEV

Ruslan

23/09/1980

Ukraine

29/09/2013

24/10/2013

28/10/2013

Primorskiy District Court

21/11/2013

22/11/2013

ZASPA

Ekaterina

20/05/1976

Russian Federation

26/09/2013

08/10/2013

25/10/2013

Kalininskiy District Court

18/11/2013

21/11/2013

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BRYAN AND OTHERS v. RUSSIA

BRYAN AND OTHERS v. RUSSIA

LEXI