DRIEMAN AND OTHERS v. NORWAY
Inadmissible
The application was lodged by four applicants, namely Mr Geert Drieman and Mr Albert Kuiken, both Dutch nationals, Ms Felicity Jane Arnold Crush, a British national, and Mr Kevin Dennis Bell, a national of the United States of America. They were born in 1950, 1948, 1963 and 1962 respectively. They are represented before the Court by Mr Menno T. Kamminga, professor of law. The facts of the case, as described mainly in the judgments of the national courts, may be summarised as follows. In July 1994 Greenpeace conducted, with two of its vessels MS Solo and MS Sirius, registered in the Netherlands, and fast rubber dinghies stationed on board the ships, a campaign against Norwegian whaling in the exclusive economic zone south-west of Egersund. The first applicant was Director of the Greenpeace Foundation in the Netherlands, and formally in charge as campaign leader on board the Solo as from 14 July 1994. The other three applicants were respectively captain, deckhand and assistantengineer on board that vessel. For a month they followed the movements and catching activities of a whaling ship, the Senet. According to its captain, the campaign had had as a consequence that the hunt was prolonged by a fortnight. The Senet was the only vessel pursuing whales in the area in question on 20 and 23 July 1994, the dates on which the incidents giving rise to the present case occurred. The Solo arrived in the area where the Senet was hunting in the afternoon of 20 July 1994, just after the Sirius had been put under arrest by the Coastguard (kystvakten). Later in the afternoon a whale was shot from the Senet. While it was lying on deck being cut up, a new whale was observed. The Senet then manned the harpoon gun and followed the whale. This was observed by the applicants on board the Solo. Shortly thereafter, a dinghy was launched from the Solo and positioned in front of the bows of the Senet where it drove in zigzag and otherwise consistently manoeuvred towards the last place where the whale had been seen on the surface. The Coastguard forced the dinghy away, and the Solo therefore launched another one with the third and fourth applicants on board, together with a camera man from a German television company. The Coastguard seized the second dinghy immediately but the third and fourth applicants were allowed to board the Solo again. They then launched a third dinghy (this time without the cameraman) on the other side of the Solo, unhindered by the Coastguard. The third applicant was navigating and she manoeuvred the dinghy up to the starboard side of the Senet, then alongside until it was positioned across the bows of the ship. The distance to the Senet during these manoeuvres varied from 5-6 to 15-20 metres. The third and fourth applicants kept the dinghy in position in front of the bows and in so doing forced the Senet to change course. The noise of the dinghy's engine was such as to frighten the whale away. On the morning of 23 July 1994, the second applicant, the Solo's captain, acting on the instructions given by the first applicant as the responsible campaign leader, manoeuvred the Solo in such a way as to force the Senet to change course when chasing a whale which it had observed. Moreover, the Solo's water canons were used in a manner impeding visibility from the Senet and thereby shielding the whale. The intended purpose and effect of these measures was to prevent the Senet from shooting the whale. Following the above incidents the 4 applicants were arrested and were held in detention on remand for 2 days before being released. After hearings on 6 and 9 September 1994, the Dalane District Court (herredsrett), by judgments of 20 September 1994, convicted the applicants, under Sections 14 (2) (1) and 53 (1) of the Sea-Water Fisheries Act 1983 (Saltvannsfiskeloven - Act of 3 June 1983 No. 40) and a Royal Decree of 15 July 1994, for having obstructed lawful whaling. It sentenced the first and second applicants to pay a fine of respectively NOK 25,000 and 20,000, or 40 days’ imprisonment in default. Moreover, under Articles 35 (2) and 37 C of the Penal Code, it ordered the confiscation of a dinghy belonging to the first applicant. The third and fourth applicants were each sentenced to pay a fine of NOK 10,000, or 15 days’ imprisonment in default. The second applicant then appealed on points of law and sentencing, while the other applicants sought to obtain a new trial before the High Court (lagmannsretten), or alternatively to appeal on points of law and sentencing to the Supreme Court (Høyesterett). The first applicant also challenged the confiscation order. The Supreme Court's Appeals Selection Committee (kjæremålsutvalg) refused the request for a new trial but allowed a joint appeal on points of law and sentencing, as well as the appeal against confiscation. By judgment of 4 March 1996 the Supreme Court upheld the applicants' convictions but limited the sentences to the fines imposed. It also upheld the confiscation of the dinghy. In upholding the applicants' convictions, the Supreme Court observed that it was satisfied that the measures had a legal basis in Sections 14 and 53 of the Sea-Water Fisheries Act, as extended by the Royal Decree of 15 July 1994. This was not prevented by Article 65 of the 1982 United Nations Convention on the Law of the Sea, which did not contain a general prohibition on whaling. Nor was it prevented by the moratorium in 1982 for all whaling or the moratorium in 1985 to classify minke whale as a threatened species, decided by the International Whaling Commission established under the 1946 International Convention for the Regulation of Whaling. In accordance with Article V no. 3 of the Convention, Norway had protested and exempted itself from these decisions by way of reservation, as the District Court noted, on the ground that there was no scientific basis for upholding a total ban. The Supreme Court further considered whether the convictions were compatible with Articles 10 and 11 of the Convention. While leaving open whether the acts concerned, in particular those by the first and second applicants, could be regarded as falling within the notions of freedom of expression in Article 10 or freedom of peaceful assembly in Article 11, the Supreme Court found that the conditions for restricting these freedoms under the second paragraphs of these provisions had been fulfilled. Firstly, it was satisfied that the requirement of lawfulness had been fulfilled, as the interference not only had a legal basis but the law in question was also accessible and foreseeable. The Royal Decree of 15 July 1994 had in fact been aimed at the specific campaign conducted by Greenpeace; the matter had attracted media attention and, according to the findings of fact made by the District Court, the applicants had been aware of the amendments in question. Even if they had not, one could have expected them to acquaint themselves beforehand with the relevant legislation, under which the proscribed conduct was illegal even before the decree. Moreover, the measure had been necessary in a democratic society in order to protect the rights of others. Greenpeace had demonstrated against whaling over a long period with a large amount of media attention, but its freedom to demonstrate had not been impaired by the disputed measures which related to 2 isolated incidents where attempts had been made to protect the whalers' lawful exercise of their right to catch whales. As regards sentencing the Supreme Court recalled that, under Section 53 (3) of the Sea-Water Fisheries Act, prison sentences should not apply to offences committed by foreign vessels in the exclusive economic zone, and that, under Article 73 (3) of the 1982 United Nations Convention on the Law of the Sea, prison sentences should not be imposed for contraventions of fishery legislation. It further observed that Norway had not ratified this Convention. Nonetheless, having regard to the preparatory work for Section 53 (3) of the Sea-Water Fisheries Act, which referred to the provision of the Law of the Sea Convention, the Supreme Court quashed the sentences in so far as they imposed imprisonment in default of the payment of the fines. As regards the confiscation of the dinghy belonging to the first applicant, the Supreme Court recalled that this had been used by the third and fourth applicants in connection with the acts leading to their arrest. On two occasions they had, by the manner in which they had manoeuvred the dinghy in front of the Senet, hindered the exercise of lawful whaling. Although a special provision on confiscation was contained in Section 54 of the Sea-Water Fisheries Act, the Supreme Court was satisfied that Article 35 and 37 C of the Penal Code were applicable. The confiscation was also justified in the interests of ensuring the effective enforcement of Section 14 of the Sea-Water Fisheries Act. According to Section 14 of the Sea-Water Fisheries Act, vessels in a fishing zone must not manoeuvre so as to damage or needlessly endanger catching gear or reduce catching opportunities. This provision applies to all vessels, not only fishing and catching vessels. Under Section 53, Chapter X, a person who by intent or negligence violates the provisions of the Act may be liable to fines and, in the event of a previous conviction under the Act or aggravating circumstances, up to 6 months' imprisonment. Section 54, Chapter X, authorises the confiscation of, inter alia, vessels used in violating the provisions of the Act. General provisions on confiscation of objects used in the perpetration of crime are contained, inter alia, in Articles 35 of the Penal Code. Under Article 37 C such confiscation may be effected with regard to the possessions of foreigners who are not resident in Norway if it is deemed reasonable. Pursuant to the Royal Decree of 15 July 1994, Section 14 and Chapter X of the SeaWater and Fisheries Act should apply to sealing and whaling activities and the provisions in, inter alia, Sections 53 and 54 in Chapter X of the Act should, as appropriate, apply to all activities other than fishing. According to Section 3 of the Sea-Water and Fisheries Act, its provisions do not affect the right of navigation in the exclusive economic zone under the Norwegian Economic Zone Act 1976, and are subject to the limitations which follow from public international law and agreements with other States. In the proceedings the applicants referred to the following provisions of the Convention on the Law of the Sea, which entered into force in 1994 and which were ratified by Norway in 1996: Article 56 Rights, jurisdiction and duties of the coastal State in the exclusive economic zone "1. In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention." Article 58 Rights and duties of other States in the exclusive economic zone "1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and use of airspace and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention." Article 65 Marine mammals “Nothing in this Part restricts the right of a coastal State or the competence of an international organisation, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall co-operate with a view to the conservation of marine mammals and in the case of cetaceans shall work in particular through the appropriate international organisations for their conservation, management and study.” Article 73 Enforcement of laws and regulations of the coastal State “1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. 2. Arrested vessels and their crews shall be promptly released upon the posting of a reasonable bond or other security. 3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment. 4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the Flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.” Article 97 Penal jurisdiction in matters of collision or any other incident of navigation “1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. 2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the Flag State.”