XXI century pirates. Lawyer Anton Imennov about detention of Russian ship "North" by Ukrainian Border Guard. "Delovoy Petersburg", 9 April 2018
It has recently become known that Ukrainian border guards had detained a Russian ship "Nord" and accused her crew of trespassing. Administrative reports on the fishermen were drawn up, and now they are not allowed to leave the vessel. "Nord" herself was carried to the port of Berdyansk and quite naturally arrested. It was not that awful, but one thing: captain of "Nord" Vladimir Gorbenko was kidnapped. It happened when he left the ship who had the extraterritorial status. Mass media has reported that now he is under arrest of the Ukrainian court.
So far, there are more questions than answers. But it is obvious that cooperation between two countries in case of detention of a citizen of another country on their territory should be regulated by the International Law norms, but not political impacts. In this situation, according to provisions of the Consul Convention between the RF and Ukrain stated in clause 13 of "Notification of detention, arrest, imprisonment and visiting":
"1. Competent authorities of the host state immediately (within 3 days) inform the appropriate consulate authority of the corresponding state about detention, arrest or any other limitation of freedom of a citizen from the represented state. At the same time competent authorities of the host state promptly convey any message from this person to the consulate.
2. Competent authorities of the host state immediately, within 4 days from the moment of detention, arrest or any other limitation of freedom of a citizen of the represented state, provide realization of the consulate authority's right to visit or establish contact with this person, including providing him/her with legal aid.
3. Competent authorities of the host state inform a certain person from the represented state about his/her rights in accordance with paragraphs 1 and 2 of this clause.
4. The rights mentioned in paragraphs 1 and 2 of this article are carried out in accordance with the laws and rules of the host state on condition though, that the above mentioned laws and rules must not cancel these rights".
In terms of the International Law the situation is as simple, as a common place: since both the ship and her crew belong to Russia, the Ukrainian part is obliged to treat them as foreign citizens. That is mainly why our Foreign Office as an authorized body of the Russian Federation should take measures aimed at observing by Ukrain its obligations towards the Russian citizens.
One of such measures may be a note of the Foreign Office of Russia to the Ukrainian authorities. It should contain, among the others, a demand for immediate release of the Russian ship and sailors, search for the captain and his return to Russia, and also bringing to justice all those responsible. Lack of contacts between the Russian Consul and the detained Russian sailors does not allow to evaluate the scale and content of the Ukrainian claims to the captain and crew of the ship.
If, according to one of the versions, the Russian ship was detained for fishing in the Ukrainian territorial waters, Ukrain has the right to carry out an investigation in accordance with clause 73 of the International Convention on Marine Law Rules "Provision of Laws and Rules of Coastal State", 1982. In this case Ukrain follows its domestic law in order to estimate the degree to which offenders are guilty and responsible. In this case, according to the Convention, Ukrain may take such measures, as examination, inspection, arrest and court proceedings to ensure maintaining laws and rules adopted by Ukrain in accordance with this Convention.
According to clause 73 part 2 of the Convention: "Arrested ship and her crew are immediately set free after providing a sensible bail or another kind of provision". In spite of it, there has been no demand for bail so far.
At the same time, part 3 of the above mentioned clause contains limitations on the use of such measures, as deprivation of freedom: "Penalties imposed by a coastal state for breaching laws and rules of fishing in the exclusive economic zone cannot include imprisonment if there is no agreement between the states concerned on the contrary, or any other form of personal punishment". Consequently, the Ukrainian authorities have no right to detain the captain of the Russian ship in person and choose a measure of restraint for him.
In order to observe the rights of the detained Russian sailors the Ukrainian authorities must also fulfill requirements of clause 73 part 4 of the Convention: "In case a foreign ship is arrested or detained, a coastal state immediately informs a state of flag about measures taken and about any punishment that follows, through corresponding channels".
It is also worth remembering that the Treaty on cooperation in the use of the Azov sea and the strait of Kerch was signed by Russia and Ukrain 24 December 2003. This document establishes certain rules of passing across the sea for civil vessels under the Russian and Ukrainian flags, and therefore it is necessary to find out how reasonable the Ukrainian claims are, and whether they breach or not norms of the International Law.
As we can see, the Russian state has decided to struggle with its foes not by means of Foreign Office and International public Law, but by criminal law and notorious 'siloviks'. It has become known that the Investigation possesses information which enables it to make a conclusion that there is an element of crime in the actions of the Ukrainian border guards, provided by clause 211 CC RF "Hijacking of an air or water vehicle, or a railway train". In accordance with clause 12, part 3 CC RF "The effect of the criminal law on persons who committed a crime beyond borders of the Russian Federation", "Foreign citizens and persons without citizenship who do not live permanently in the Russian Federation and committed a crime outside the Russian Federation, are subjected to criminal responsibility under this Code in case their crime is against interests of the Russian Federation or a citizen of the Russian Federation". Hence, the RF has a formal right to investigate unlawful actions of the Ukrainian force structures against Russian citizens.
If it occurs that the captain of the Russian ship who enjoys the extraterritorial status was brought to Ukrain by deceit and kidnapped by representatives of this state, investigatory bodies of the RF have a solid ground to initiate another criminal case of "Abduction of a person" under clause 126 CC RF.
Then, in accordance with criminal-legal logic and "Convention on legal assistance and legal relationship in civil, family and criminal cases" and clause 453 CPC RF "Request for legal assistance", a Russian investigator dealing with the case has the right to send a request for legal assistance to Ukrain through the Office of the Public Prosecutor General, containing issues about processual actions on the Ukrainian territory - questioning of Russian citizens, Ukrainian officials and other participants of unlawful actions, indicting those responsible and extradition of them to Russia in order to undergo criminal prosecution. The vessel should be given to the Russian part as material evidence.
I am not sure whether it may help the captain and the ship, but it will definitely help our news programs to persuade population that legal measures for defense of out citizens are super efficacious.
Alas, after analyzing the current situation one may once again come to the conclusion that our Russian Diplomatic Department together with its Consulate Department are brought to complete paralysis every time the grossest infringement of the rights of the Russian citizens abroad take place. They have learnt to frown in a frightening way and mutter in a strict voice instead of starting at least with inviting advocates for assistance.
Anton Imennov, advocate, Head of International Practice and Private Clients Practice of Pen & Paper