How sea-going vessels are arrested in Ukraine without arrest: absurdist theatre

• Shipping

“Selfless” actions of law enforcement bodies of Ukraine aimed to struggle for law compliance but eventually resulted in manifold gross violation of the law. Furthermore, such actions of law enforcement officers may serve as a reason for serious international investigations and conflicts. Let us review the occurred situation in details.

We all remember annexation of the Crimea by the Russian Federation in spring 2014. Of course, both Ukraine and the international society disapprove such actions and treat them as gross violation of the international law. Assessment of such actions at the international level is stated in the Resolution of the UN General Assembly No. A/RES/68/262 of the 27th of March 2014. According to the Resolution, the UN General Assembly affirms its commitment to the sovereignty and territorial integrity of Ukraine within its internationally recognized borders and does not recognize any change in the status of  of Crimea or the Black Sea port city of Sevastopol. On its part, Ukraine adopted a number of regulatory acts concerning the current situation on the peninsula. The most essential ones in shipping are the Law of Ukraine ”On Providing Rights and Freedoms of Citizens and Legal Regime at the Temporarily Occupied Territory of Ukraine” dd. 04.03.2015 and the Order of the Ministry of Infrastructure of Ukraine ”On Closing of Sea Ports” No.255 dd. 16.06.2015, aimed, inter alia, to prevent unlawful violation of the sovereignty of Ukraine and vessel calls at the Crimean sea ports.

Article 204-2 of the Code of Ukraine on Administrative Violations and Article 332-1 of the Criminal Code of Ukraine provide responsibility for violation of the aforesaid regulatory acts regarding the vessel calls at the Crimean sea ports.
So, in early June 2015 the vessel under the Russian flag arrived to the Ukrainian sea port in order to load 3,500 tons of soy beans bound to the United Arab Emirates. After completion of loading, issuing bills of lading and cargo preparation for fumigation, the investigation group headed by investigator of the General Prosecutor’s office of Ukraine performed a search on board of the vessel, on the grounds of the Ruling of Pecherskii District Court of Kyiv.  The search resulted in seizure of all the original vessel documents. Since the vessel crew included only citizens of the Russian Federation, the master requested the defense of attorney and a representative of the Consulate General of the Russian Federation, but the investigator ignored the master’s request.
In fact the vessel, ready to sail with the Ukrainian export cargo on board, was detained at the Ukrainian sea port due to impossibility of leaving the port without original vessel documents on board. The investigators took into account neither shipowner’s nor cargo owner’s (well-known international trader’s) interests.
First reason for the search was a document «Ship Pre-Arrival Security Information Form» submitted by the master upon arrival to the port. The master erroneously stated in the document that on 25.04.2015 the vessel was received bunker at the Kerch Strait.
Second reason for the search was a statement of the General Prosecutor’s office of Ukraine that the vessel engaged a pilot of the closed Kerch Commercial Sea Port.

But what happened in fact?

In particular, the General Prosecutor’s Office of Ukraine did not initiate separate criminal proceedings upon the abovementioned facts. Instead, pretrial investigation was performed in the framework of unified criminal proceedings upon all the Crimean vessel calls under Article 332-1 of the Criminal Code of Ukraine (violation of the procedure of entering/leaving the temporarily occupied territory of Ukraine for the purpose of causing damage to state’s interests).

Unfortunately, both the General Prosecutor’s Office of Ukraine upon filing the application on search and the court upon issuing the Ruling on search have ignored the facts that neither bunkering at the Kerch Strait nor engagement of an undetermined pilot in the Kerch Strait are deemed as crimes pursuant to Article 332-1 of the Criminal Code of Ukraine. At the same time the General Prosecutor’s Office of Ukraine submitted neither evidence of bunkering at the territorial waters of Ukraine nor evidence of engaging a pilot of the closed Kerch Commercial Sea Port.

Notable that during the search, while studying both original vessel documents and minute-by-minute vessel route, it was found out that the vessel passed the Kerch Strait by transit and made bunkering not at the Strait itself but outside the territorial sea of Ukraine. In fact the master filled in the «Ship Pre-Arrival Security Information Form» with an error.
Moreover, investigator of the General Prosecutor’s Office of Ukraine, not after but just before filling the application on search to the investigative judge, could and should have inspected the fact of call and bunkering at the closed port. In Ukraine State Institution “Gosgidrografiya” is the organization able to provide precise information about the vessel location which further may be used in criminal proceedings as evidence. The data provided by this organization confirm that the vessel neither called at the closed Crimean port nor performed bunkering at the territorial waters of Ukraine near the peninsula.
But neither absence of any evidence nor absence of the crime fact itself impeded the obscure goals of the General Prosecutor’s Office of Ukraine.

«Everybody in - nobody out! All resistance is vain!»

The shipowner’s attorneys, for the purpose of defending its interests, filed a complaint against the investigator’s actions upon seizure of original vessel documents, submitted the documents certifying objective absence of all the possible suspicions, including the disc with minute-by-minute vessel route. Leaping ahead, the investigative judge considered the complaint within two and a half months, instead of the prescribed three-day term.
Since neither vessel nor cargo was arrested (obviously, the demands were groundless and investigator’s actions upon seizure of original vessel documents resulted in cessation the vessel commercial activity, and were duly appealed against), the shipowner decided to obtain copies of vessel documents instead of originals seized during the search.
Meantime, the vessel master, as agreed with port authorities, made a decision on cargo fumigation due to the risk of its damage, since it had been on board for nine days. According to General Provisions of the Sea Port, in case of cargo fumigation by means of phosphine (placing phosphine inside the cargo) the vessel shall leave the port not later than two hours after completion of placing the fumigant and closing the holds.
Having obtained copies of original vessel documents, more than one day after fumigation, the vessel was able to leave the port due to absence of legal grounds for any obstacles.

Further the General Prosecutor’s Office of Ukraine returned to the shipowner original vessel documents seized during the search.

It is obvious that finally common sense has been met, but the total vessel detention made up ten days and the shipowner suffered damages in the amount of tens thousands dollars.

No doubt, that Ukraine is obliged to defend its rights on the temporarily occupied territory and to struggle for bringing to responsibility all the persons invading its sovereignty and territorial integrity. But such actions shall be performed in strict compliance with the law, without causing damage to public image of Ukraine in the sight of foreign shipowners and international traders.

We have to summarize that the vessel sailed away but unpleasant aftertaste remained.

To be continued…

Published in UJBL.