Arrest and detention of Greenpeace activists after protest on oil drilling platform. Violation of personal freedom and freedom of expression
JUDGMENT
Bryan and others v. Russia 27.06.2023 (app. no. 22515/14)
SUMMARY
The case concerned a protest in 2013 by 30 Greenpeace activists at the Russian offshore oil-drilling
platform Prirazlomnaya.
The protest had involved two of the activists climbing the Prirazlomnaya platform after launching
dinghies from a vessel called the Arctic Sunrise, which had been sailing under the flag of the
Netherlands. The Russian coastguard had subsequently intercepted the vessel and towed it to the
port of Murmansk, with the activists on board. On arriving at Murmansk the activists had been
arrested and their detention ordered on charges of piracy. The charges had later been reclassified to
hooliganism, and the proceedings against them discontinued under an amnesty.
Firstly, the Court examined various aspects related to jurisdiction and decided that it could deal with
the case. In particular, despite the compensation the activists had received as a result of a
settlement agreement reached by the Netherlands and Russia over the incident – after arbitration
proceedings under the United Nations Convention on the Law of the Sea – there had been no
acknowledgment by Russia of a breach of the activists’ rights and they could therefore still claim to
be victims of a violation of the European Convention.
Next the Court found that the period during which the Arctic Sunrise had been under Russian control
and up until its arrival in Murmansk had amounted to a deprivation of the activists’ liberty. That
period of detention had been completely unrecorded and had therefore amounted to a grave
violation of their Article 5 rights.
Although the activists’ detention after that and up until their release two months later had been
officially recorded, it had been arbitrary as there had been confusion over what charges to bring
against them and the reasons for their detention.
Lastly, the Court found that their detention had amounted to an interference with their freedom to
express their opinion on a matter of significant environmental interest which had not been
prescribed by national law.
PROVISIONS
Article 5
Article 10
PRINCIPAL FACTS
The 30 applicants in the case are Argentinian, Australian, Brazilian, British, Canadian, Danish, Dutch,
Finnish, French, Italian, New Zealand, Polish, Russian, Swedish, Swiss, Turkish, Ukrainian, and United States of America nationals. They are all Greenpeace activists, and include a Greenpeace press officer and two freelance journalists.
Greenpeace has staged a number of peaceful protests at sea since 2010 to campaign against
offshore oil-drilling.
In September 2013, the applicants travelled to the Pechora Sea (within the exclusive economic zone
of Russia) on board the Arctic Sunrise, which was sailing under the flag of the Netherlands, in the
vicinity of the Russian Prirazlomnaya offshore oil-drilling platform. The applicants informed the
platform’s management, Gazprom, and the Russian coastguard that they intended to scale the
Prirazlomnaya and set up a survival capsule where they would stay until Gazprom dropped its plans
to drill for oil in the Arctic.
In the event, following the launching of dinghies from the Arctic Sunrise, two of the activists climbed
the platform on 18 September 2013 but were forced back down by water cannon. They were picked
up by the Russian coastguard and taken to its vessel, the Ladoga, while the remaining activists
returned to the Arctic Sunrise by dinghy.
The next day armed agents of the Russian Federal Security Service boarded the Arctic Sunrise from a
helicopter and took control of the vessel and its crew. Later that day the two activists caught scaling
the Prirazlomnaya were transferred from the Ladoga to the Arctic Sunrise.
The Arctic Sunrise was then towed to the port of Murmansk (Russia) by the Russian coastguard,
between 20 and 24 September 2013. On arrival at Murmansk, the applicants were officially arrested,
and the district court authorised their detention for two months pending criminal proceedings
against them for piracy. Furthermore, it ruled that the start of the applicants’ pre-trial detention was
24 September 2013.
The regional court upheld that finding on appeal. It also upheld the applicants’ detention orders,
dismissing their arguments that there were no grounds for bringing piracy charges since the
Prirazlomnaya was clearly not a vessel.
A month later, however, the investigating authorities amended the charges to hooliganism as they
found that the Prirazlomnaya was not a vessel but a port facility, thus ruling out criminal liability for
piracy.
The applicants were released on bail on various dates between 20 and 29 November 2013. Shortly
after that the criminal proceedings against them were discontinued under an amnesty.
In the meantime, there had been arbitration proceedings under the United Nations Convention on
the Law of the Sea (UNCLOS) between the Government of the Netherlands, as the country of the
Arctic Sunrise’s flag, and the Russian Federation, which refused to participate in those proceedings,
citing lack of jurisdiction of the arbitral tribunal over it. The Netherlands was awarded 5.4 million
euros (EUR), including compensation for the applicants, which Russia refused to pay.
Eventually, however, the two States reached a confidential settlement agreement, and
EUR 2,7 million was transferred by the Netherlands to Greenpeace of which the applicants received
EUR 605,000 (about EUR 20,000 each).
THE DECISION OF THE COURT…
The Court decided on various aspects related to jurisdiction in the applicants’ case.
Firstly, the Russian authorities had had full and exclusive control over the Arctic Sunrise and its crew
from the moment the vessel had been intercepted until it had arrived at Murmansk; the applicants
had therefore been effectively within Russia’s jurisdiction for the purposes of Article 1 (obligation to
respect human rights).
Secondly, the Court held that it had jurisdiction to examine the admissibility and merits of the
applicants’ case despite the arbitration proceedings and the compensation the applicants had
received.
In particular, the arbitration proceedings had dealt with Russia’s breach of its obligations under the
UNCLOS, while the applicants’ case before the European Court concerned allegations of breaches of
the right to liberty and security and freedom of expression. The applicants had not been a party to
the arbitration proceedings, which were between the Netherlands and Russia, so in fact the
complainants had also been different in each set of proceedings. The Court therefore found that the
arbitration and Strasbourg proceedings, although parallel, had not had the same subject matter and
it was not therefore precluded from dealing with the case (Article 35 § 2 (b)).
Moreover, the Court considered that the applicants could still claim to be victims of a violation of the
Convention (Article 35 § 3 (a)) even though they had received compensation, because there had
never been any acknowledgement of a breach of their rights.
Lastly, although Russia had ceased to be a Party to the European Convention, the Court found that it
still had jurisdiction to deal with the case, as the facts giving rise to the alleged violations of the
Convention had taken place before 16 September 2022 (the date on which Russia ceased to be a
Party to the European Convention).
Article 5
The Court considered that the period from 19 to 24 September 2013, when the Arctic Sunrise had
been under the control of the Russian forces and towed for a nearly a week with all the applicants
on board, had amounted to a deprivation of their liberty. That period had started earlier for the two
applicant activists who had scaled the Prirazlomnaya as they had been taken aboard the Ladoga against their will on 18 September 2013 and prevented from returning to the Arctic Sunrise until the
following day.
That detention had not, however, been recorded in any form. There had been no plausible
explanation on the part of the Government for that failing. It had moreover been aggravated by the
courts ruling that the start of the applicants’ detention had been on 24 September 2013, meaning
that the period when the Arctic Sunrise was being towed had been discounted as detention.
Unacknowledged detention was a most grave violation of Article 5 and the Court therefore held that there had been a violation of that provision.
The Court then went on to examine the applicants’ detention after 24 September 2013, which had
been recorded, but it found that it had been arbitrary. It noted in particular that the courts’ and the
investigators’ positions regarding the status of the Prirazlomnaya, with one considering it to be a
vessel and the other a port facility, had been inconsistent and confusing for interpreting the relevant
legislation. Indeed, even though the criminal charges against the applicants had been reclassified as
hooliganism, the applicants had continued to be detained until their release on bail in accordance
with the original order for pre-trial detention, which had been based on piracy charges.
The Court therefore held that that the applicants’ detention after 24 September 2013 and until their
release had not been lawful within the meaning of Article 5 § 1 (c) of the Convention.
Article 10
The applicants’ arrest, detention and criminal prosecution had constituted an interference with their
freedom to express an opinion on a matter of significant social interest, that is the environmental
effects of oil drilling and exploitation.
Given the findings under Article 5 with regard to the arbitrariness and unlawfulness of the
applicants’ detention, it followed that the restriction on their freedom of expression had not been
prescribed by national law either. There had therefore been a violation of Article 10.
Article 41 (just satisfaction)
The Court held, by five votes to two, that the finding of a violation constituted in itself sufficient just
satisfaction for any non-pecuniary damage sustained by the applicants.
Separate opinion
Judge Serghides expressed a partly dissenting opinion, which is annexed to the judgment.
