The Prosecutor-General’s Office is considering dozens of cases involving ship calls at ports in the Russia-annexed Crimea. Many sailors are charged with violating the procedure for entering and leaving the Peninsula with the aim of harming the interests of the state, which entails criminal liability. However, a proper examination of the legislation shows that not all the charges have a solid legal basis. The problem is that the parliament adopted the relevant laws and regulations hastily, as a result of which parliamentary deputies were unable to consider the details, in which, as we know, lies the devil.
The result is that there are no clear rules, which means that ambiguous interpretations of the legislation are possible. The LeGran.TT law firm’s Director Tatiana Titarenko discusses the cases in which the actions of law enforcement officers are lawful and the cases in which they are unlawful.
After the events of spring 2014, some vessels called at ports in the annexed peninsula for various reasons. The owners and crews of these vessels are now having very unpleasant conversations with the Prosecutor-General’s Office. We analyzed the extent to which the law enforcement officials’ claims are justified under the active legislation.
The annexation of the Crimea resulted in radical changes in the Ukrainian transport industry. However, “annexation” is not quite the correct term in this case from a purely legal point of view because it involves quite different rules than the current rules. De facto, we are dealing with an annexed territory, but we are applying regulations relating to occupied regions. However, now is not the time for that…
After the loss of the peninsula, Ukraine lost five seaports that accounted for about 10% of the combined turnover of all its seaports. However, the flow of cargoes was rapidly redistributed among seaports in Greater Odessa, Nikolayev, and Kherson. However, some ships continued to call at seaports in the occupied Crimea, for which they immediately got into trouble with the Prosecutor-General’s Office. However, if we leave out the political aspects of the issue, we can see that their claims are not always justified from a legal point of view.
Let us examine the basis for the charges filed by the law enforcement agencies. The first is Article 10 of the law “On Protecting the Rights and Freedoms of Citizens and the Legal Framework in a Temporarily Occupied Territory of Ukraine,” which stipulates that the procedure for entering and leaving the Crimea is to be established by the Cabinet of Ministers. It also has a derivative in the Criminal Code (Article 332-1), which stipulates liability for violation of this procedure with the aim of harming the interests of the state. However, the question arises: how do these rules apply to the shipping industry, where dozens of criminal cases are currently being considered?
It is clear that there was no time to go through the usual bureaucratic procedures in an environment in which unidentified men in military uniforms had taken control of the Crimea and the new Crimean “authorities” held a “referendum.” That is, the law was passed hastily, in violation of the rules: without its inclusion on the parliament’s agenda and without the necessary expert conclusions. Naturally, this is reflected in its practical application, as well as in the interpretation of the relevant bylaws.
The period between the adoption of the law and the approval of the procedure was more than one year because the relevant Cabinet of Ministers resolution No. 367 was adopted only in June 2015. However, the absence of an established procedure did not prevent the prosecutor’s office from detaining the ships that entered these ports in 2014 and threatening them with Article 332-1 of the Criminal Code. In addition, this article stipulates liability for violating the procedure for entering and leaving Crimean ports with the aim of harming the interests of the state. The authors of the law did not specify the “harm” that is done to the state or make provisions for passage of maritime traffic through the peninsula, which allows law enforcement officers to interpret the provisions of the legislation based on their own beliefs.
Fast forward to June 2015. The procedure for entering and leaving Crimean ports was finally approved, and it allows entry onto the Crimean territory through checkpoints. What is a checkpoint? The resolution describes a checkpoint as “a dedicated area on an automobile road or at a railway station with a set of buildings, special engineering structures, fortifications, and technical means, where border, customs, and other forms of government control are performed.” The document says nothing about maritime traffic. The question arises: can Article 332-1 of the Criminal Code be used to prosecute a ship’s captain violating an entry/exit procedure that does not apply to maritime traffic?
However, law enforcement officials also cite other documents, but even these documents are not as unambiguous as prosecutors say. Crimean ports were closed to ships by the Ministry of Infrastructure’s order No. 255 of 16 June 2014, which was registered by Ministry of Justice on 24 June and introduced only on 15 July. There is no mention of criminal liability for violation of this document and Article 332-1 of the Criminal Code and Article 204-2 of the Administrative Code make no reference to it. No administrative or criminal liability is stipulated for its violation. The only possibility is international trade sanctions on vessels that fail to comply. Nevertheless, the Turkish ship Kanton, which visited the port of Sevastopol from 27 to 29 July 2014, was arrested in Kherson by decision of the Pecherskyi District Court of Kyiv in March 2015.
If we go into the details of these cases, we are inevitably faced with the question: what is considered a seaport under the current legislation? According to Article 1 of the law “On Seaports,” a seaport is a land territory and water body with defined boundaries that are equipped to handle vessels and passengers and perform cargo, transport, and forwarding operations. Article 8 of this law stipulates that the boundaries of a seaport’s land and water areas are to be determined only by the Cabinet of Ministers of Ukraine.
Another example of arbitrary interpretation of legislative acts by the prosecutor’s office occurred on 30 July 2014, when the Vityaz tugboat registered to the state-owned Ust-Danube seaport entered the Kamysh-Burun Bay to pick up a PGP-2 floating crane that was repaired in Kerch. The crane, which is listed as state property, was facing the threat of “nationalization” by the Crimean “authorities.” An important detail is that the crane was in the roadstead outside the Kerch seaport at the time.
The materials of the relevant criminal case stated that the captain of the vessel illegally entered the closed seaport of Kamysh-Burun. However, is Kamysh-Burun a seaport under the law “On Seaports?” Does Kamysh-Burun have a water body assigned to it documentarily? No! Neither the Kamysh-Burun bay nor the Kerch-Yenikalsky canal falls within the boundaries of the water body that the Cabinet of Ministers resolution No. 406 of 3 June 2013 assigned to the Kerch port.
The situation involving the territory is similar. It is not assigned to the port of Kamysh-Burun in accordance with the procedure established by law. The status of the marine terminal is also not confirmed because, under the current legislation, it is an integral property complex located within the boundaries of a commercial seaport. Given the fact that the boundaries of the territory of the Kerch seaport are undefined, Kamysh-Burun is not a terminal. In addition, the Kamysh-Burun Kerch Seaport LLC is a privately owned business entity that is not included in the Register of Seaports of Ukraine or the Register of Hydraulic Engineering Structures.
Accordingly, a ship entering the Kamysh-Burun bay is not entering a Crimean port that was closed by the Ministry of Infrastructure’s order No. 255 of 16 June 2014. Therefore, the law enforcement authorities’ claims in this case have no legal basis.
There was a border crossing point on the territory of the Kamysh-Burun port, and this is also mentioned in the charges filed by the law enforcement authorities. In this case, the law enforcement authorities cited the government directive No. 424-r of 30 April 2014 entitled “On Temporary Closure of Border Crossing Points and Checkpoints.” Until 7 September 2015, legislators included only the land area and not the water area in the territory of the border crossings. Because of this, it is unclear what was violated when the ship entered the roadstead.
In addition, the actions of the tugboat’s crew do not fall under Article 332-1 of the Criminal Code because they had no malicious intent and did not harm the state. On the contrary, the crew of the tugboat tried to save a state property located in the annexed Crimea.
Furthermore, the boundaries of the territory are not assigned to any commercial seaport in Ukraine, including a Crimea seaport. Thus, it is impossible to claim lawfully that the vessel visited a Crimean port.
The absence of clearly defined regulations in the maritime industry leads to arbitrary interpretations of the legislation by law enforcement authorities. Therefore, the legal framework needs significant improvement. For example, it currently provides no answer to question regarding the status of the Kerch Strait. Is coastal traffic between the Yuzhny port and the Mariupol port through this sea corridor considered a violation? What does “harming the state” mean? Why does Article 332-1 of the Criminal Code apply to a ship visit to a closed Crimean port, provisions of which stipulate that violation of the procedure for entering and leaving ports, which is regulated only by an overland link with the peninsula?
Is it necessary to punish offenders? Undoubtedly. The law is the same for everyone, but only those that actually ignore its requirements with the aim of harming the state should be punished. In the meantime, the legal framework does not specify what should be considered a violation and what punishment it should carry.