Dr Sergey Golubok represents the Greepeace activists charged with hooliganism following their attempt to scale a Russian offshore oil platform in September 2013. With Dr Golubok’s permission we are publishing a translation of this original interview.
Russia refused to take part in the arbitration proceedings. What will follow next? How will the proceedings be held with such an attitude of Russia?
Sergey Golubok: The Russian Federation is acting as a defendant in civil proceedings, and it is entitled either to take part in the proceedings or not. Meanwhile the right, even the duty of the International Tribunal for the Law of the Sea (ed. – ITLOS) is to hear the case irrespective of Russia nonparticipating in the hearing. Therefore, this situation is even worse for Russia as it will not have an opportunity to prove its case before the Tribunal.
The arbitration hearing will be held even if Russia refuses to take part in it?
Yes, it will and ITLOS is currently entertaining an application for provisional measures. The situation will be the same with respect to the arbitration proceedings: if Russia does not participate in the arbitration, then the tribunal will hear the case in its absence. For an arbitral hearing to be launched, the UN Convention requires that the composition of the arbitration panel be selected first, which may take up to several months. The Convention also vests in the tribunal the power to rule on provisional measures while the arbitration panel has not been selected yet. In this regard the tribunal deals with procedural questions after which the case goes back to the arbitration panel which by that time will hopefully have been composed and will hear the case. The procedural consequences of Russia’s absence are the same as the failure to appear of a properly informed defendant in a civil proceeding under our legislation.
The definition of piracy is nearly the same in all countries. However the definition of hooliganism is not entirely clear, especially outside Russia. How difficult will it be to challenge those charges in Russian and European courts?
We don’t have to challenge the accusation. The investigative authorities have to prove that the charges are well-grounded. We have a right to defend ourselves in court proceedings. Putting that obligation on us would contradict the presumption of innocence. We don’t have to prove our innocence – it is the other party who should prove our culpability. Hooliganism – is a very distinctive crime, some sort of a Soviet left-over which does not exist in the majority of other countries; it is very difficult to explain its exact nature. The only thing I can suggest to the Western observers is to read the translated version of the article 213 of the Criminal Code of the Russian Federation: if they manage to understand anything from this article – well done, but if not – I can’t explain something that I do not understand myself. Article 213 of the Criminal Code is like a weapon of mass destruction, it is feasible to institute criminal proceedings under this article against anyone who commits acts which contradict “spiritual ties” of the society. Not to forget that members of “Pussy Riot” were convicted under the same article.
Is this case somehow different from the proceedings against Russian citizens, and in what way?
The citizenship of the accused in the Russian court proceedings is immaterial. And that is why during the hearing on provisional measures we strongly disagreed with the prosecution, which pleaded that foreign citizenship falls into the category of personal information and therefore should be taken into account while deciding on provisional measures. The fact that the person is a foreigner does not mean anything in itself. Foreign citizenship has the same legal significance as sexual orientation; it is a personal characteristic that has no legal importance. What does it matter if he or she is a foreigner? What does it change? From the point of view of penal procedure, under the Criminal Proceedural Code of Russia, this does not change anything.
Which human rights violation claims could be filed on the basis of the ECHR?
Claims to ECHR are filed not by Greenpeace but by individual activists whose rights have been infringed. They may also appeal to several other international authorities, though that could be incompatible with an action brought before the ECHR. Obviously, the articls of various articles of the Convention could be invoked. I would not want to anticipate events and refer to particular provisions of the Convention to which these potential claimants will refer, though claims may inter alia concern detention conditions – which are odious – and an unlawful detention starting from 19 September 2013. However, this list is not exhaustive.
Which other judicial mechanisms are you planning to use in the near future?
We are currently awaiting receipt of all indictment acts and we have to examine them. I suppose this will take several days, at least till next week. Only when we have examined the indictment against all of them can we come back to this question and decide what steps to take next. The Investigative Committee has made its step – now we’ll make ours.