Interview: Sergey Golubok – Lawyer of Greenpeace Activists on Trial in Russia

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.

 

Sergey Golubok

About Sergey Golubok

Dr Sergey Golubok is an Attorney-at-Law of the St. Petersburg Bar Association, Russian Federation. He represents the Greepeace activists charged with hooliganism following their attemtp to scale a Russian offshore oil platform in September 2013.

4 Responses to “Interview: Sergey Golubok – Lawyer of Greenpeace Activists on Trial in Russia”

  1. Peter Peters says:

    Quite a disappointing interview, it just has the characteristics of politics, activism and little to do with law. That coming from a defense lawyer is worrying. If we look at laws in the UK like Obscenity, like using threatening words….. we also will not find the definitional purity that allows pre-evaluation with certainty. However, this lawyer seems to almost show a legal nihilism, a predetermined position against the legal system he is within. I think it is pretty obvious by analogy to any objective observer that there will be transgression in Russian law during the action of Greenpeace participants. I think it is also obvious that those transgressions were pre-planned and pre meditated. There simply is no right of protest that interferes with other vessels existing in the UNCLOS, because it would run counter to the whole purposefulness of UNCLOS itself and once upon the rig the individuals are subject to Russian jurisdiction. Additionally as I understood it a court order was obtained prior to the vessel’s seizure that determined prima facie criminal activity. So this case indeed falls under Russian jurisdiction and thus the ECHR is relevant. Indeed this is the prime mechanism that these individuals could employ to seek justice in line with European standards. However, there is a caveat to this in that recently the Russian constitutional court has hinted that it will not recognize ECHR rulings that are in contradiction with the Russian constitution. Given that the Russians have already demonstrated they will not recognise a judicial bodies (ITLOS) when sovereign jurisdiction is involved, as in this case. I would not get my hopes up too high for an enforceable remedy coming from that direction. I just think the Greenpeace lawyer needs step back and do the best for his client, rather than as it appears now, remain locked in some political, activist mode!

    • Michael says:

      Peter: Although I agree with some of the things you say, I think there is room for the argument that certain provisions have been defined in such a vague manner that they lend themselves to be abused by strong executives. That is true as much for the UK (as we currently see when it comes to the freedom of the press which is not even vaguely defines – its not defined at all!) as it is for the Russian legal system. So I dont think there is anything problematic about having a sceptical attitude to the legal system within which one operates. Also, I am not sure I understand your argument about Russian jurisdiction applying to the exclusion of the ECHR. The whole point of the ECHR is that it applies in parallel to a domestic legal system – meaning that whatever you do within your jurisdiction must comply with the provisions of the ECHR.

  2. Peter Peters says:

    Michael, absolutely agree law can be vague; absolutely agree you can have a skeptical attitude to the courts you plead in. However, your duty should be to your clients within that system above your own protestations or attitude, which could have an adverse affect on your client’s outcome. The article led me to believe and conclude that the defense is being conducted as a predominantly political maneuver by the protesters counsel, not a legal one. Given Russia’s approach to letter of the law, in deference to other considerations, and also maybe in consideration with good legal practice, the approach should not be supported, condoned or indeed allowed to prevail. My point about the ECHR jurisdiction is that, with you I understand its intention and organization in terms of superiority to domestic legislation. However, the Russian constitutional court is murmuring that they will not accept ECHR rulings if they are incompatible with the Russian constitution. Where is your real enforcement going to come from in that situation – very practically to get efficacy! They will probably comply with 99.9% then walk away on the last part. Is 99.9% of the cake better than none? How do you see that playing out?

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