CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 juin 2024

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POLAND (Applications nos. 25344/20 and 17 others – see appended list)   JUDGMENT   Art 5 §§ 1 and 2 • Deprivation of liberty of activists affiliated with Greenpeace and journalists after the interruption of a protest held at sea and media coverage thereof and the immobilisation of their vessels in Polish internal waters • Art   5 applicable having regard to the nature and duration of the restrictions imposed on the applicants on board their vessels, the Boarder Guards’ vessel and/or premises • Lack of sufficient legal basis for all the applicants’ detention • Absence of reasonable suspicion in relation to the detention of two of the applicants • Failure to provide information on reasons for arrest or provide such information promptly Art 10 • Freedom of expression • Unlawful nature of detention impacting on lawfulness of interference Art 5 § 4 • No issue as to the review of lawfulness of detention • Due to short duration of deprivations of liberty no time for applicants to “take proceedings” for their release • Manifestly ill-founded   Prepared by the Registry. Does not bind the Court.   STRASBOURG 20 June 2024   FINAL   20/09/2024     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Friedrich and Others v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak , President ,   Alena Poláčková,   Krzysztof Wojtyczek,   Lətif Hüseynov,   Ivana Jelić,   Erik Wennerström,   Raffaele Sabato , judges , and Ilse Freiwirth, Section Registrar, Having regard to: the applications (nos.   25344/20, and seventeen other applications against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Ms Miriam Friedrich, and seventeen other applicants (“the applicants”) on the various dates indicated in the appended table; the decision to give notice to the Polish Government (“the Government”) of the complaints raised under Articles 5, 10, 11 and 13 of the Convention, and under Article 2 of Protocol No. 4 to the Convention; the decision that the Governments of the States of the applicants’ nationality be notified of the application under Article 36 § 1 of the Convention and Rule   44 § 1 of the Rules of the Court and the absence on their part of any indication that they wished to intervene; the observations submitted by the respondent Government, and the observations in reply submitted by the applicants; the comments submitted by the Polish Bar Council, which was granted leave to intervene by the President of the Section; Having deliberated in private on 28 May 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The cases concern actions undertaken by the Polish Border Guard Service in respect of the applicants (sixteen activists affiliated with Greenpeace and two journalists) – namely, the interruption of a protest held at sea and media coverage thereof, the immobilisation of the applicants and their vessels, and the arrest of two applicants who were taken ashore. It mainly raises issues under Articles 5 and 10 of the Convention. THE FACTS 2.     The applicants’ personal details are set out in the annex below. The applicants were represented by Ms M.J. Radziejowska, a lawyer practising in Warsaw, and by Mr A. Ploszka, of the Helsinki Foundation for Human Rights. 3.     The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs. 4.     The facts of the case may be summarised as follows. I.         THE APPLICANTS 5 .     The first sixteen applicants are activists affiliated with Greenpeace. The seventeenth and eighteenth applicants are journalists. All the applicants were involved in the protest in Gdańsk that is described below. 6.     The first applicant is an Austrian national. At the time of the events in question, she was the helmswoman of RHIB (rigid-hull inflatable boat) no.   4. 7 .     The second applicant is a Spanish national. At the time of the material events, he was the captain of the Rainbow Warrior III sailing vessel (“the Rainbow Warrior”), which was flying the flag of the Netherlands. 8 .     The remaining sixteen applicants are of either Polish or other nationalities (as listed in the Annex). At the time of the material events, two applicants (the seventeenth and eighteenth applicants) were on board RHIB no. 4, while fourteen applicants (the third to sixteenth applicants) were mainly on board the Rainbow Warrior. II.       GREENPEACE INTERNATIONAL CAMPAIGN 9 .     Greenpeace launched an international campaign, entitled the “European Energy Transition Project”, to encourage national economies to rapidly phase out coal in the light of the climate emergency and to make the transition from fossil fuels to renewable energy. The campaign included a series of protests such as the one that is the subject of the present application. III.     THE PROTEST IN THE SEAPORT OF GDAŃSK 10 .     On an unspecified date the Rainbow Warrior entered the Polish territorial waters. On 6 September 2019 it entered the Gdańsk seaport’s roadstead (an area of safe anchorage for ships waiting to enter a port), after permission was granted for the vessel to drop anchor in Anchorage No.   1 ( Kotwicowisko nr 1 ), which is located within the roadstead (located ten nautical miles – approximately 18 kilometres – from the main port), and, presumably, within the Polish internal waters. 11.     Greenpeace had sought permission to anchor the ship closer to the coast in order to be able to welcome the public on board for a series of conferences and events commemorating the anniversary of Greenpeace Poland and informing the public about the climate crisis. That request was not granted, and the Gdańsk Seaport Master’s office issued a ban on the vessel entering the actual seaport area. 12 .     On 9 September 2019 at about 5.45 p.m. the Rainbow Warrior, without the permission of the seaport authorities, raised anchor and steered a course towards the entrance to the Gdańsk North seaport. 13 .     The applicants submitted that the ship had been moving slowly on a steady course, without creating any danger, when boats belonging to the Border Guard had surrounded the ship, trying to force it to stop or to change its course. According to the witness testimony given (on 9 September 2019 to the Operations and Investigations division of the headquarters of the Maritime Border Guard unit and, later, to the court examining the applicants’ interlocutory appeal concerning their being deprived of their liberty and their movement being restricted, see paragraphs 68-84 below), by one of the Border Guard officers patrolling the seaport area (namely, P.R.), Rainbow Warrior, having cast off four RHIBs, was moving at a speed of eleven knots. 14 .     While the operation was unfolding, the crew of the Rainbow Warrior broadcast a radio message to the seaport authorities and to the Border Guard, informing them that their protest was of a peaceful nature and that the activists had no intention of destroying any property or causing any danger to anyone. 15 .     At approximately 6.30 p.m. the Rainbow Warrior anchored at the entrance to the area of the seaport devoted to the unloading of coal, in the vicinity of pipelines and terminals designated for the reloading and transport of coal, oil and gas products. It blocked the passage of a collier ship carrying coal imported from Mozambique, preventing it from entering the seaport and unloading. 16 .     The RHIBs that had been cast off from the Rainbow Warrior were carrying several Greenpeace activists and journalists. They were trying to approach the collier. According to the testimony of a Border Guard officer (M.Ć.) (given on 9 September 2019 to the Operations and Investigations division of the headquarters of the Maritime Border Guard unit and, later, to the court examining the applicants’ interlocutory appeal concerning their being deprived of their liberty and their movement being restricted, see paragraphs   68-84 below), Border Guard boats were actively trying to impede the Greenpeace vessels and prevent them from approaching the collier ship, which was moving towards the coal unloading area. As the unfolding situation was judged to be volatile and dangerous, the Border Guard boats withdrew. 17 .     One of the RHIBs (not RHIB no. 4) approached the Mozambican collier. The activists who were in it painted the slogan “Coal Stop” on the cargo ship’s hull and displayed banners reading “No Future in Coal”. Having finished their protest, the occupants of the RHIB in question withdrew. 18 .     RHIB no. 4, commanded by the first applicant, was carrying three journalists who were to report on the protest. Among them were the seventeenth and eighteenth applicants. 19 .     Video recordings submitted by the applicants and various publicly available edited videos of the material events [1] feature the following elements: activists on an RHIB paint the “Coal Stop” slogan on the side of a large vessel, while a Border Guard boat and other Greenpeace RHIBs watch on, floating on the water; an RHIB carrying eight Border Guard officers with partially covered faces approaches the Mozambican ship, and then RHIB no.   4; Greenpeace activists displaying banners reading “Poland without coal, 2030” and “No Future in Coal” announce over loudhailers, in English and in Polish, that their protest is peaceful and that it is against the importation of coal into Poland. 20 .     The applicants did not formally forewarn the Gdańsk Seaport Master’s Office of their above-described actions. An obligation to do so existed under maritime law. 21 .     The Government submitted that appeals to those on board the Rainbow Warrior to cease their operation and to allow an inspection team aboard had been communicated to the Rainbow Warrior by the Seaport Master’s Office and by the commander of Border Guard Unit no. 112 via radio , flag signals, and light and horn signals. The Rainbow Warrior had disregarded those appeals. This information corresponds to the written reports ( notatka urzędowa ) drawn up on 10 September 2019 by two duty officers of the Border Guard and to a letter written on 30   September   2019 by the head of the Maritime Department of the Border Guard to a head of the Analytics Department at the Headquarters of the Border Guard. 22 .     The Government also submitted that appeals not to approach the coal cargo ship had been transmitted by Border Guard unit no. 213. Those appeals had been disregarded by the crew of RHIB no. 4 who, in the Government’s view, had posed a serious threat to maritime traffic – specifically, by coming very close to the collier. 23 .     The applicants stated that no orders had been issued or communicated to them by the Seaport Master’s Office, as indicated by the record stored on, what is referred to as, the “DMIS” communications database. Rather, they asserted, the Seaport Master’s Office had transmitted radio messages such as “You can stick your ... [swear word] protest you know where”. The applicants also submitted that the crew of RHIB no. 4 had fully complied with orders communicated to them by the Border Guard, as depicted in the video footage presented to the Court (see paragraph 19 above). They also denied that RHIB no.   4 had been in the close vicinity of the cargo ship. 24 .     On 10 September 2019 a licensed independent expert on sailing drew up a preliminary report ( opinia wstępna ) on the events in question that was based on the submission of a Border Guard officer and video material. The expert concluded that the Rainbow Warrior’s captain (the second applicant) and the respective crews of the RHIBs had violated numerous provisions concerning maritime traffic and safety, creating a risk of collision between the Rainbow Warrior and the other vessels. At a hearing at the prosecutor’s office on 11   September   2019, the expert submitted that any possible collision could not be classified as a “maritime disaster” because the actions of the protesters had not endangered the life or the health of many people or threatened property on a large scale. Rather, there had been a risk of the boats colliding, of material damage to the boats or of someone falling into the water. The expert also stated that he could not be certain as to whether or not light or sound signals had been emitted by the Border Guard to the Greenpeace vessels. The applicants drew the Court’s attention to the fact that the report in question had never been formally challenged, because no criminal proceedings for endangering lives of others or posing a risk of a maritime disaster (under Articles 160 and 174 of the Criminal Code – see paragraphs   99 and 100 below) had been instituted against the first and second applicants. 25 .     The protest was livestreamed on the Internet and quickly attracted nationwide media attention. IV.    EVENTS ON RHIB NO. 4 AND THE ARREST OF THE FIRST APPLICANT 26 .     As submitted by the parties and shown in a video recorded by one of the protesters, at approximately 8 p.m. RHIB no. 4 was approached by an RHIB carrying eight officers of the Border Guard unit. In the video footage, the officers are not visibly armed, and they are not pointing guns at the protesters. According to the applicants’ respective submissions, the officers were armed. The officers told the applicants to cooperate; otherwise the use of handcuffs and force would be necessary. Four officers boarded RHIB no.   4 and collected the identity documents of the occupants. They then asked the three journalists, among whom were the seventeenth and the eighteenth applicants (see paragraph 18 above), to transfer to the border guards’ RHIB. The seventeenth applicant was told to leave his filming equipment in RHIB no. 4; he was reassured that he would be allowed to return there after the identity check. The video does not show any signs of heightened tension, shouting or physical force. 27 .     Subsequently the officers, for approximately one hour, subjected the journalists to identity checks. During that time, the first applicant was told to stay on her RHIB. Her identity was later checked on board the Border Guard’s RHIB. 28 .     Later, the journalists (according to their own account) remained under the control of four armed officers of the Border Guard, without being told whether they were under arrest or not. No written charge or the instruction on the rights and obligations of a suspect were issued in respect of the seventeenth and eighteenth applicants. 29 .     At 11 p.m. the Border Guard told the journalists that they were free to go but did not allow them to return to their RHIB. As recorded in the minutes of a hearing that took place on 6   November 2019 before the Gdańsk ‑ Południe District Court, P.R. – a Border Guard officer – stated that the inspection and identity check conducted on RHIB no. 4 had lasted eight hours (from 8 p.m. until 4.15 a.m. on 10-11 September 2019). The applicants submitted that they had not been given any water, food or blankets. The latter information was not contested by the Government. 30 .     At 4 a.m. on 10 September 2019, after the eighteenth applicant stated that he was suffering from a medical condition (presumably, predating the events in question), the group was moved ashore, where an ambulance was called for him. At approximately 4.15 a.m. the seventeenth and eighteenth applicants, together with the remaining journalist, were free to leave. 31 .     On 10 September 2019 (according to the first applicant’s submission at around 5 a.m.) the first applicant was taken to the Operations and Investigations division ( Wydział Operacyjno-Śledczy ) of the headquarters of the Maritime Border Guard unit ( Komenda Morskiego Oddziału Straży Granicznej ). She was informed of the offence of which she was charged: failing to obey an order of a person authorised to control traffic (that is, in this instance a person authorised to stop a ship under Article 178b of the Criminal Code – see paragraph 101 below). She was also informed of her rights in German. She was accompanied at that point by a lawyer. 32 .     The arrest report recorded the time of the first applicant’s arrest as 3.55 a.m. on 10   September 2019. A written note was appended to the effect that the applicant had declared that she had been arrested on the previous day at 8   p.m. The report’s narrative ended at 6.45 a.m. on 10 September 2019. It is recorded in the document that, on that day at 3.50 a.m., the Gdańsk-Oliwa district prosecutor was informed of the first applicant’s arrest. The document is silent as to the time of the first applicant’s release. 33.     The arrest report stated that the first applicant had been arrested on the basis of Article 244 § 1 of the Code of Criminal Procedure (see paragraph   87 below). 34 .     A printout from what is referred to as “WWIDA” records released by the Maritime Border Guard unit (a document submitted by the Government) indicates that the first applicant was arrested in connection with the offence under Article 178b of the Criminal Code (see paragraph 101 below) on 10   September 2019 at 3.55 a.m. and released on 11 September at 5.15 p.m. 35.     In a letter dated 11 September 2019 the Maritime Border Guard unit informed the Embassy of Austria in Poland that the first applicant (who had been arrested on 10 September 2019 at 3.55 a.m.) “remained at the prosecutor’s disposal” ( pozostaje do dyzpozycji prokuratora ). 36 .     According to the decision to press charges ( postanowienie o przedstawieniu zarzutów ) that was drawn up on 11 September 2019 by Officer C.M. at the Operations and Investigations division of the headquarters of the Maritime Border Guard unit, written charges that had been brought against the first applicant were presented to her on 11   September 2019 (at a time not indicated). 37 .     According to the record of her questioning as a suspect, the first applicant was questioned at the Operations and Investigations division of the headquarters of the Maritime Border Guard unit in the presence of her lawyer and an interpreter, from 3.45 p.m. until 5 p.m. on 11   September   2019. 38 .     The first applicant submitted that she had remained in custody until approximately 5 p.m. on 11   September 2019 – that is to say for over forty ‑ five hours, calculated from the time when the officers had boarded her RHIB, and over thirty-seven hours from the time of her formal arrest. 39 .     In their latest submissions in respect of the applications, the Government acknowledged that the first applicant had been released after her questioning on 11 September 2019. V.      EVENTS ON THE RAINBOW WARRIOR AND THE ARREST OF THE SECOND APPLICANT 40 .     At approximately 11 p.m. on 9 September 2019, the armed officers of the Border Guard boarded the Rainbow Warrior. At that time, nearly twenty activists – including the second applicant and the third to sixteenth applicants – were on board the vessel. 41 .     The Government submitted that the ship’s captain had not responded to the order issued by the commander of the Border Guard vessel to allow the Border Guard officers aboard. 42 .     Reinforcements were sent from the Department of Security for the Activities of the Maritime Border Guard Division. According to the Government’s submission, when the officers boarded the ship the crew had hidden themselves away and all the doors were locked. The officers smashed a window on the bridge. According to the minutes of the hearing that took place on 6   November   2019 before the Gdańsk-Południe District Court, Officer M.Ć. estimated that between fourteen and sixteen armed officers had been engaged in the operation aboard the ship. 43 .     Video recordings (taken by cameras on the bridge and on the deck) submitted by the applicants and various publicly available edited videos and copies of livestreamed video recordings of the material events [2] depict the following sequence of events on board the Rainbow Warrior: the ship’s crew is locked (from inside) on the bridge; they have their arms raised – some of them are filming on their smartphones, while others are holding up posters; the lights inside the bridge are off and the windows are covered with semi ‑ opaque blinds; the crew members are calm and largely silent; approximately six armed Border Guard officers, with partially covered faces, are moving around the deck, with their weapons (fitted with flashlights) raised; the officers bang on the doors and windows and shout “Open the door – Border Guard”; the officers report the situation over the radio; for about five minutes, the officers do not communicate with the crew; two guards are walking around the ship checking for an open door leading to the bridge – the others are pointing their machine guns and handguns inside the bridge through the (closed) windows; the officers have difficulty counting how many people are on the bridge; the officers receive an order to force entry; they try to open the door into the bridge; they tap on the windows and repeatedly shout out commands in Polish and in English, such as “Let us in” and “Open the door or we will break it”; one applicant begins her livestream coverage from the Rainbow Warrior to which she adds commentary; the officers take notice of the lack of any reaction from the crew; two officers break a cabin window with sledge hammers; the lights are switched on inside the bridge; the captain unlocks the door and several officers enter the bridge; they repeatedly shout out in English the command “On the ground”; the activists comply with the order; one officer shouts out in English “Show your hands” and “You will be handcuffed”; the officers are then heard deciding that the crew would be taken onto the bow without being handcuffed, as they are not resisting the orders and are on board a ship on the water; an officer tells one activist to turn her smartphone off; the livestreaming applicant is then told to put away her smartphone; she puts the device down, leaving the recording mode on; one officer then tells the others to take the crew, one by one, onto the bow, without handcuffing them, and to carry out a cursory body search and an inspection of the vessel. The livestream is then stopped. Throughout the video recordings there are no signs of heightened tension, such as physical force being exerted towards certain people or repeated shouting or screaming, either on the part of the officers or the crew. 44 .     The officers took complete control of the crew. 45 .     According to the applicants’ submissions the officers pointed their unlocked guns at the activists. The Government did not contest this submission. 46 .     The activists were at first corralled together in the bow of the vessel. According to the applicants’ submissions, they were not allowed to communicate with each other or make any movement. They were not allowed to film the scene. The Government did not contest these submissions. 47 .     Presumably, two hours after boarding the vessel, the officers started to check the identities of the activists, one by one. The ship inspection report ( protokół z kontroli statku ), which was drawn up between 11.40 p.m. on 9   September 2019 and 6 a.m. on 10 September 2019, indicated that ten crew members and eight passengers were on board. Two printed documents, entitled “IMO Crew List”, were attached to the report. They listed the names of thirty-one people (including those of all the applicants) and their identity details (including their passport numbers), and listed each person’s rank on the ship. Handmade markings (ticks and crosses), made in what appears to be the handwriting of the person drawing up the inspection report, feature on these documents. 48 .     The Border Guard officers also inspected the vessel and the vessel’s documentation. According to the search report ( protokół przeszukania ) drawn up on 10 September 2019 (between 2.10 a.m. and 3 a.m.) by the officers, the vessel was searched for objects that were illicit or dangerous or that could serve as evidence in the case. During the search, no obstacles or difficulties were encountered, and the officers did not break anything. According to a prosecutor’s decision dated 17 September 2019 validating the search in question, the search led to the seizure of two smartphones and one video camera. 49 .     The Government submitted that the crew had not raised any objections to the inspection. 50 .     The applicants submitted that having completed the check, the officers had moved the activists to the wardroom. Going to the toilet had been possible only with an officer’s permission and under escort, and the toilet door had had to be kept open. The Government did not contest this submission. 51.     The Government submitted that the captain of the Rainbow Warrior (the second applicant) had been informed that by moving from the anchorage without the consent of the Port Master’s Office and by dropping anchor in a prohibited location, he had committed an offence liable to be punished with an administrative penalty. 52 .     The third to sixteenth applicants submitted that they had at no point been informed of their status or been presented with any written charge or been briefed on the rights and obligations of a suspect. According to the record of the hearing that took place on 6   November   2019 before the Gdańsk ‑ Południe District Court, Officer M.Ć. stated that the activists had not had any status, as they had only been subjected to a search and identity check. The applicants had not been allowed to contact or be contacted by their lawyers. 53 .     The activists’ lawyers, who were trying to reach the Border Guard, could not obtain any information about the situation unfolding. The lawyers’ written requests for information went unacknowledged and unanswered. The Government did not contest this information. One such request that did reach the Border Guard was refused, and no reasoning for that refusal was provided. 54 .     On 10 September 2019 at approximately at 5.30 a.m. the Rainbow Warrior was towed out of the seaport. 55 .     The Border Guard officers left the ship at 6 a.m. 56 .     At 3.31 a.m. on 10 September, the Border Guard took the second applicant (presumably) and the eighth applicant, ashore. They were taken to the Operations and Investigations division of the headquarters of the Maritime Border Guard unit. 57 .     From 5.30 a.m. until 6.25 a.m. on 10 September 2019, the eighth applicant was heard as a witness and then, presumably allowed to go. 58 .     The second applicant was formally arrested and charged with failure to obey an order issued by a person authorised to control traffic (Article 178b of the Criminal Code – see paragraph 101 below) – or in the instant case, authorised to order a ship to stop. 59 .     At that point in the proceedings the second applicant was accompanied by a lawyer. He was informed in English of the charge and of his rights. 60 .     The arrest report recorded the date of the second applicant’s arrest as 10   September 2019 at 3.31 a.m. The applicant’s lawyer submitted a written declaration that his client’s detention had begun on 9 September 2019 at 11   p.m. The report was concluded at 6.05 a.m. on 10 September 2019. It is recorded in the document that, on that day at 3.50 a.m., the Gdańsk-Oliwa district prosecutor was informed of the first applicant’s arrest. The document is silent as to the time of the second applicant’s release. 61 .     The arrest report states that the second applicant was arrested on the basis of Article 244 § 1 of the Code of Criminal Procedure (see paragraph   87 below). 62 .     A print-out of the WWIDA records released by the Maritime Border Guard unit indicates that the second applicant was arrested in connection with the offence provided by Article 178b of the Criminal Code (see paragraph 101 below) on 10 September 2019 at 3.31 a.m. and released on 11 September at 5.30 p.m. 63 .     A letter dated 11 September 2019 from the Maritime Border Guard unit informed the Consulate of Spain in Gdańsk that the second applicant, who had been arrested on 10 September 2019 at 3.31 a.m., “remained at the prosecutor’s disposal”. 64 .     According to a document drawn up on 11 September 2019 by Officer C.M. at the Operations and Investigations division of the headquarters of the Maritime Border Guard unit, written charges that had been brought against the second applicant were presented to him on 11 September 2019 (the hour was not indicated). 65 .     According to the record of his questioning, the second applicant was questioned at the Operations and Investigations division of the Maritime Border Guard unit, in the presence of his lawyer and an interpreter, from 3.45   p.m. until 5.10. p.m. on 11   September   2019. 66 .     The second applicant submitted that he had remained in custody until 11   September 2019 at 5.10 p.m. – that is to say, for approximately forty-two hours, counting from the time when the officers had boarded the Rainbow Warrior, and over thirty-seven hours from the time of his formal arrest. 67 .     In their latest submissions in respect of the applications, the Government acknowledged that the second applicant had been released on 11   September 2019 after his questioning. VI.    THE COURT PROCEEDINGS IN RESPECT OF THE BORDER GUARDS’ ACTIONS A.    Applicants’ interlocutory appeal concerning their being deprived of their liberty and their movement being restricted 68 .     On 16 September 2019 a lawyer lodged an interlocutory appeal on behalf of all the applicants, objecting to their “arrest in its entirety”. The appeal was based, inter alia , on Article 246 § 1 of the Code of Criminal Procedure (see paragraph 93 below). It was argued that the applicants’ being deprived of their liberty and their movement being restricted had been unlawful and unjustified and, as such, in breach of Polish law and of Article   5 of the Convention. 69 .     In respect of the first and second applicants , the lawyer argued, inter alia , that: (i) the measure had been unnecessary in the absence of a reasonable suspicion that they had committed a criminal offence, or of any risk that they would flee; (ii) the applicants had only been informed at approximately 5 a.m. on 10 September of the reasons for their arrest, their rights and the possibility to have an interpreter present, whereas they had already been deprived of their liberty on 9 September at 8 p.m. (the first applicant) and at 11 p.m. (the second applicant); (iii) the applicants’ respective arrests had been without legal basis in so far as no record had been made of the fact that they had been deprived of their liberty from 9   September at 8 p.m. (the first applicant) and at 11 p.m. (the second applicant) until approximately 5 a.m. on 10   September 2019. 70 .     In respect of the remaining applicants, the lawyer argued, inter alia , that: (i) the measure had not been called for, in the absence of a reasonable suspicion that they had committed a criminal offence, or of a risk that they would flee or tamper with evidence; (ii) the applicants had not been informed of the reasons for their arrest or of their rights immediately after their respective arrests on 9 September at 8 p.m. (the seventeenth and eighteenth applicants) and at 11 p.m. (the third to sixteenth applicants); (iii) no reports had been made of the applicants’ respective arrests; (iv) depriving the applicants of their liberty within the context of their social and public interest activity had constituted a form of repression and restriction of the applicants’ “fundamental rights”. 71 .     In respect of all the applicants, the lawyer argued that contact between the applicants and their lawyers had been impeded until 10   September at 5 a.m. 72 .     The applicants’ interlocutory appeal also stated that at 5   a.m. on 10   September 2019 the first and second applicants had been transferred to the premises of the Border Guard, where they had formally been arrested. 73 .     On 24 October 2019 the lawyers extended the above-mentioned appeal by arguing that all the applicants had been subjected to unlawful and unjustified restriction on their movement, in violation of Article 2 of Protocol No. 4 to the Convention. In this document, the lawyers submitted that the first and second applicants had been restricted in their movements without any legal basis until approximately 5 a.m. on 10   September 2019. B.    Domestic court’s rulings 1.      In respect of the first and second applicants 74 .     On 6 November 2020 the Gdańsk-Południe District Court ruled in respect of the arrests of the first and second applicants (case files nos. X Kp 1088/19 and X Kp 1089/19) under, inter alia , Article 246 § 1 of the Code of Criminal Procedure (see paragraph 93 below). 75 .     The domestic court dismissed their appeal on the grounds that the arrest, as recorded in the respective arrest reports, was lawful and justified, because the applicants had disregarded the Border Guard’s orders and had been suspected of committing a criminal offence under Article 178b of the Criminal Code (see paragraph 101 below). Moreover, a lawyer had been present when the respective arrest reports had been drawn up, and the applicants had been informed of their rights in English, a language which they spoke. 76 .     The domestic court also considered that the measure in question had been justified, because the authorities had had to question the applicants, check their respective places of residence and decide whether to remand them in custody. 77 .     The domestic court considered that what had preceded the respective arrests had constituted the limitation of the applicants’ movement for the purposes of conducting an identity check and an inspection of the vessels – it had not constituted deprivation of liberty. The fact that during the above ‑ mentioned activities the applicants had not been free to walk away without the officers’ authorisation had been an inherent feature of the operation. 78.     The domestic court did not examine the applicants’ arguments about their movement having been restricted in breach of Article 2 of Protocol no.   4 to the Convention. 79.     On 13 November 2019 that decision was served on the applicants’ lawyer. 2.      In respect of the third to eighteenth applicants 80 .     On 6 November 2019 the Gdańsk-Południe District Court issued a decision to leave unexamined the appeal in respect of the remaining sixteen applicants – that is, the third to sixteenth applicants (who had been on board the Rainbow Warrior) and the seventeenth and eighteenth applicants (who had been on RHIB 4) – on the grounds that it was inadmissible in law (see   paragraph 97 below). 81 .     The court found that the applicants in question had not been deprived of their liberty, but had been compelled to participate only in the identity checks and the inspection of the vessel. The court relied on the general principle, arising from domestic case-law, that the lack of freedom to walk away while a procedure was underway did not automatically constitute a deprivation of liberty. The crucial element to be assessed was whether the persons concerned had been able to leave once the procedure had been completed. Under the circumstances of the case, even though the applicants had not been free to move around or walk away while the officers had been carrying out their checks and inspections, once that procedure had been completed, the applicants had been free to leave. 82 .     The domestic court also observed that, in view of the above, the officers had not had a duty to draw up an arrest report or to inform the applicants of their rights. 83 .     Lastly, the court observed that subjecting the applicants to the control by the Border Guard had been justified because the Rainbow Warrior and RHIB no. 4 had disregarded the signals issued by the Border Guard and had, in the officers’ judgment, posed a serious threat to maritime traffic – especially by coming very close to a large cargo vessel. The court found irrelevant the arguments concerning the peaceful nature of the protest. 84 .     On 5 December 2019 the Gdańsk-Południe District Court upheld that decision after a further appeal lodged by the applicants. VII. THE COURT PROCEEDINGS IN RESPECT OF THE APPLICANTS’ ACTIONS A.    Criminal proceedings against the first and second applicants 85 .     The criminal proceedings (based on the indictment of 10 December 2019) against the first and second applicants for failure to comply with a lawful order given by an officer authorised to enforce the law were discontinued. On 4   March   2021 the Gdańsk-Południe District Court – and (after an appeal lodged by the prosecutor) on 28   April   2021 – the Gdańsk Regional Court ruled that the conduct of the first and second applicants had not met the criteria of a prohibited act (as specified by Article 178b of the Criminal Code) because, according to well-established case-law, that provision only applied to road, and not maritime, traffic. 86 .     An extraordinary cassation appeal, lodged by the Prosecutor General, is pending examination by the Supreme Court (no. V KK 182/22). B.    Administrative proceedings against the second applicant 87 .     It appears that on 13 September 2019 the head of the Gdynia Maritime Office ( Urząd Morski ) fined the second applicant, in his capacity as captain of the Rainbow Warrior, 91,700 Polish zlotys (PLN – approximately 21,300   euros (EUR)) for a series of maritime offences. These offences comprised the following acts: raising anchor and, without informing or obtaining authorisation from the Seaport Master’s Office – and in spite of orders issued by the duty officer at the Seaport Master’s Office – dropping anchor in a place not designated for that purpose; engaging in activities exceeding the usual use of the seaport; and blocking efforts by the officers of the Seaport Master’s Office and Border Guard to board the Rainbow Warrior. On 31 January 2020 the relevant Minister quashed that decision and remitted the case to a lower ‑ instance authority. On 5 October 2021 the head of the Gdynia Maritime Office re-imposed a fine in the same amount on the second applicant. On 29 April 2021 that decision was upheld by the relevant government minister. 88 .     It appears that the proceedings are currently pending appeal before the Warsaw Regional Administrative Court. RELEVANT LEGAL FRAMEWORK AND PRACTICE I.         Identity check, arrest and detention A.    Substantive provisions 89 .     The Border Guard Act of 12 October 1990 ( Ustawa o Straży Granicznej ) authorises the Border Guard to undertake activities for operational, reconnaissance and public-order purposes (section 9(1)), and to run identity checks (section 11(1)(4). They may also carry out arrests, as further regulated by the Code of Criminal Procedure of 6 June 1997 ( Kodeks postępowania karnego ) (section 11(1)(5) of the Border Guard Act and Article   312 § 1 of the Code of Criminal Procedure). 90 .     Article 244 § 1 of the Code of Criminal Procedure authorises the Border Guard to make an arrest where there are justified grounds to suspect that the person in question has committed an offence and it is feared that he/she might escape, go into hiding, conceal traces of that offence or his/her identity cannot be established. 91 .     An arrested person shall immediately be informed of the reasons for his or her arrest and of his or her rights – including the right to a lawyer and, if necessary, an interpreter (Article 244 § 2 of the Code of Criminal Procedure). 92 .     An arrested person shall immediately be released where the reasons for his or her arrest cease to exist. In any event, such a person shall be released within forty-eight hours of his or her arrest unless he or she is brought before a judge in connection with an application for his or her pre-trial detention (Article 248 of the Code of Criminal Procedure). B.    Remedies in respect of arrest, detention, identity checks and sea