By John Helmer, Moscow
The Greenland government is about to open court proceedings against Greenpeace for attempts to occupy an offshore oil rig two years ago, the chief police prosecutor in Nuuk, Morten Nielsen, has disclosed. Russian sources say that Gazpromneft or parent Gazprom may be considering a similar move. These legal actions are targeted at Greenpeace as an organization. Until now, only individual members of Greenpeace have been prosecuted – in 2010 and 2011 cases in Greenland, when altogether 24 individuals were arrested, jailed, convicted and fined; and in proceedings now under way in Murmansk for 30 Greenpeace members; they are currently in prison awaiting trial on Russian charges for an attempt to board the Gazpromneft oil platform Prirazlomnaya, in the Pechora Sea, on September 18.
Their vessel, the 38-year old motor yacht Arctic Sunrise, registered in The Netherlands, is under arrest in Murmansk port. For details of its position, see here .
Russian officials have been the target of a global publicity campaign by Greenpeace, as they struggle with the fact that Russian law lacks the precision of the Greenland criminal code and maritime regulations. The legal loopholes Greenpeace has exploited in the Russian case were not available in Greenland.
Anton Beneslavskiy, a Moscow lawyer for Greenpeace and head of its Russian forest programme, has acknowledged the loopholes. There can be no basis for charging the Arctic Sunrise or its Greenpeace complement for violating the security zone around the Prirazlomnaya because “the security zone was not properly installed. Besides, Russian legislation does not provide liability for its violation.” They cannot be charged with criminal trespass either, according to Beneslavskiy, because the operative Russian criminal law does not allow it. That means, the lawyer said he believes, there “is absolutely no violation of Russian law by Greenpeace.”
By telephone from Nuuk Prosecutor Nielsen explains that the Greenpeace members arrested and convicted in his 2010 and 2011 cases were subject to Section 96 (1)(i) of the Greenland Criminal Code; that is criminal trespass. The concept of trespass has almost a thousand years of history in the laws of England and continental Europe. The current UK guidelines for criminal or aggravated trespass – the charge the Russian prosecutors would like to bring if they could – can be read here . The standard defences to a charge of criminal trespass are that there was no intention to act illegally, no harm was done, and the consent of the property owner was not violated.
According to Nielsen, the Greenpace actions also violated Greenland’s Home Rule Regulations; in particular Home Rule Executive Order No. 14 of 26 August 2010. Sections 3(1) and 4(1)(i). Here  they are in Danish. The order defines security or safety zones for “offshore facilities and accommodation vessels within the territorial sea or continental shelf area off Greenland”. Section 3 sets out restrictions for vessels, aircraft and individuals approaching the 500-metre radius of declared security zones around oil rigs. Section 4 provides for fines for violators – that is, “anyone who intentionally or recklessly [is in] (1) breach of a rule of this Order , including the prohibition in §3, paragraph 1.”
Nielsen also explained that the Greenland authorities acted according to their law against the Greenpeace helicopter used in the 2011 incident. “The helicopter in question was seized in accordance with the Administration of Justice Act for Greenland. The helicopter was released afterwards, as it was determined that the helicopter was leased and not owned by Greenpeace. The individual participants were prosecuted and received fines between 1.500 kr., and 4.000 kr. Their personal equipment was confiscated, and they were expelled from Greenland.” Had the helicopter been owned by Greenpeace it would have been confiscated.”
Nielsen said a separate prosecution of Greenpeace is under way, and the indictment will go to court in Nuuk shortly. Asked why this prosecution has taken two years so far, Nielsen said “the main reason for the delay is that Greenpeace doesn’t have a local organization in Greenland.” Serving the legal papers outside Greenland’s jurisdiction has proved time-consuming, he added. The penalty the prosecution will seek against Greenpeace is a fine.
Although the Russian arrests last month followed the Greenland practice, Greenpeace’s anti-Russian campaign has been much more intensive. In part, this reflects the longer period of imprisonment and pre-trial investigation by Russian prosecutors. For a summary of the Greenpeace actions against Cairn Energy oil rigs in Turkish, Dutch and Greenland waters, the Greenland Government released this . It is noteworthy that Greenland, which is an autonomous unit of Denmark, claimed it was lawful for Danish Navy and Greenland police to arrest a Greenpeace vessel outside the 500-metre security perimeter of the oil rigs themselves. “The Danish Ministry of Foreign Affairs has found in pursuance of the United Nations Convention on the Law of the Sea that it is possible for Greenland authorities to take action within a radius of 5 km from the safety zone. The applicable safety zone is 500 metres around the drilling rig.”
Greenpeace lawyers claim that a similar Russian action was unlawful last month when the Greenpeace vessel, Arctic Sunrise, was boarded outside the 500-metre security zone around Prirazlomnaya, but within one kilometre of the rig. The ship was then required to proceed to Murmansk port where it remains under arrest, along with its crew and complement. For an analysis of the Russian case to date, read here .
Russian officials have claimed there are several provisions of the UN Convention on the Law of the Sea which provide the legal basis for the action taken against the Greenpeace vessel. The 500-metre security zone is provided for in Art. 60 of the Convention. In addition, Art. 33  of the Convention extends for up to 24 nautical miles (44 kms) from shore. “In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea. 2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.”
The Convention provisions clearly deny the Greenpeace claim that the Arctic Sunrise was engaged in “innocent passage”. Art. 19(d), for instance, expressly rules that Russia’s border patrol and naval forces had the right to arrest a vessel and crew engaged in “any act of propaganda aimed at affecting the defence or security of the coastal State.”
The provision of the Russian Criminal Code which is the foundation for the current indictments in Murmansk is Art. 213. The legal meaning of the term “hooliganism” in this provision isn’t the same as its common English applications. According to the Code article, the similarity to criminal trespass is obvious. Article 213 – “a gross violation of the public order which expresses patent contempt for society, attended by violence against private persons or by the threat of its use, and likewise by the destruction or damage of other people’s property shall be punishable by compulsory works for a term of 120 to 180 hours, or by corrective labour for a term of six to twelve months, or by arrest for a term of four to six months, or by deprivation of liberty for a term of up to two years.”
It is also clear that the individuals now facing trial in Murmansk are part of the Greenpeace organization. This compounds the offence under Russian law , and adds to the prison sentence on conviction. “ 2. The same act, if it is: a) committed by a group of persons, a group of persons in a preliminary conspiracy, or an organized group; b) connected with resistance to a representative of authority or to any other person who fulfills the duty of protecting the public order or who prevents violation of the public order; c) committed by a person who was earlier convicted of hooliganism – shall be punishable by compulsory works for a term of 180 to 240 hours, or by corrective labour for a term of one to two years, or by deprivation of liberty for a term of up to five years.”
There is no provision in the Russian law allowing courts to impose fines as an alternative to community service or prison sentences.
The Murmansk prosecutors do not say if they are monitoring the Greenland authorities’ plan to prosecute Greenpeace as an organization. As Greenpeace is registered as an organization in Russia, they were also asked if they are considering a prosecution of Greenpeace the organization. Sergei Soloviev, a spokesman for the Investigative Committee of the procuracy, disclosed that Russian law doesn’t allow the same flexibility as in Greenland because the Russian Criminal Code fixes responsibility for crimes on individuals. That doesn’t change when individuals are acting as an organization.
“We are not pursuing Greenpeace as an organization,” Soloviev explained, “because we have in the Criminal Code the established principle of individual criminal responsibility. That is, to criminal responsibility shall be subject only a capable physical person who has attained the age of 14 years for a number of crimes; for other crimes, 18 years. Therefore, these individuals who have now been accused, they are indicted as individuals. And the fact that they worked for or were involved in Greenpeace, this has absolutely has no bearing.”
“In Russia the principle of criminal responsibility for organizations is absent in law, that is, organizations are not investigated for criminal liability.” The Investigative Committee says it handles criminal investigations and prosecutions. For civil matters, it referred to the Prosecutor-General who has yet to respond on whether it is considering other breaches of Russian law by Greenpeace.
Soloviev acknowledges that Greenpeace may have civil liability as an organization. “Maybe Gazprom has claims against them. They may feel that they [Greenpeace] have done some damage, including moral damage to employees who were on the platform.”
Cairn Energy, a London Stock Exchange-listed oil company, with headquarters in Edinburgh, was the operator of the two offshore rigs Greenpeace had tried to occupy and stop drilling in 2010 and 2011. While Cairn explicitly referred the trespass prosecutions to the Greenland prosecutor, the UK company did go to an Amsterdam court against Greenpeace as an organization, and on June 9, 2011, won an injunction against Greenpeace . Section 5 of the judgement  issued an immediate prohibition to Greenpeace “for a period of six months after the service of this judgment from being present in a radius of 500m around the drilling platforms LE and Ocean Rigs Corcovado, as long as these drilling platforms are in the EEZ of Greenland – Orders GPI [Greenpeace International] to pay a penalty to Capricorn [Cairn] of EUR 50,000 for every day or part thereof that they will not adhere to the decision pronounced in 5.1, with a cap of EUR 1,000,000.00.” Greenpeace was also ordered to pay the court costs of Cairn’s application for protection.
Greenpeace ignored the injunction, and a week later, on June 17, Greenpeace’s executive director, Kumi Naidoo, evaded a Danish naval patrol, entered the security zone and boarded the Cairn rig, Leif Eriksson . Naidoo issued a statement admitting he was aware of the Dutch court action, but omitting the court injunction. There had been, he said, “a massive lawsuit against Greenpeace International. In it they demanded we pay 2 million euro for each day our action prevented their oil drilling operation. But, despite a small army of expensive lawyers, it didn’t go Cairn’s way in court. The judge awarded them far less than they asked for.”
Dutch court records show that Cairn Energy was awarded a penalty and Greenpeace fined for violating the June 9 injunction by occupying the rig. The Dutch organization of Greenpeace was obliged to pay up.
Gazprom and Gazpromneft are reluctant to speak on the record about their next moves. A Gazpromneft source acknowledges the company has coordinated with the border guards before the rig incident, and with the Investigative Committee since. Gennady Lubin, chief executive of Gazpromneftshelf, operator of the Prirazlomnaya rig, has said “the Greenpeace initiative had no serious consequences for the rig. However, at the time of the incident we were performing scheduled underwater monitoring of abandoned exploration wells and rockfill ledges that protect the structure from scouring effect. We had to stop this work because of the threat to divers’ lives.”
According to Lubin, next year the Prirazlomnaya platform will produce about 600,000 tonnes of oil. Peak production will be reached in 2021 at about 6 million tonnes per year.