This was a criminal prosecution brought by the State of Finland, alleging that a criminal act was committed in the Finnish exclusive economic zone (EEZ) and elsewhere in the Gulf of Finland outside Finnish territorial waters, but with the consequences of the crime occurring in Finland. The State Prosecutor argued that Vadatchkoria, as the master of the tanker Eagle S, registered under the flag of the Cook Islands and owned by Caravella LLC-FZ, together with Egizaryan as first officer and Chaurasia as second officer, intentionally damaged several power cables.

The vessel travelled from the Russian port of Ust-Luga via the Gulf of Finland towards the Baltic Sea. While in the Gulf of Finland, the securing of its port anchor failed, and the anchor fell onto the seabed. However, the vessel continued its journey, although its speed and engine speed decreased significantly due to anchor dragging. The anchor damaged the Estlink2 power cable jointly owned by Fingrid Oy and Elering AS. After receiving information about the damage, the Finnish authorities inquired about the location of the anchors from the vessel, whereupon Egizaryan and Chaurasia stated that both anchors were up and secured. As the ship continued its journey, it further damaged a cable owned by Elisa Corp, the CITIC cable owned by CPC Finland Oy and Citic Telecom CPC Netherlands BV, and telecommunications cables owned by Elisa Corp and the C-Lion 1 telecommunications cable owned by C-Lion1 Oy, owned by Cinia Oy.

The defendants argued that the charges and compensation claims against them should be dismissed.

Held: Judgment for the defendants.

Finland has no jurisdiction in this matter. The Finnish EEZ Act lists acts punishable in the EEZ, and it is not those acts that are at issue. The United Nations Convention on the Law of the Sea (UNCLOS) limits the scope of Finnish criminal law.

Finland can be considered the place of commission of the alleged crimes pursuant to Ch 1, ss 1 and 10 of the Criminal Code on the basis of the alternative sentencing requirement in ss 1 and 2. This must still be assessed under Ch 1, s 15 of the Criminal Code as to whether any international agreement binding on Finland limits the scope of Finnish criminal law.

The international agreement in question that may limit the scope of Finnish criminal law is UNCLOS, which Finland has ratified and which has been brought into force in Finland by law (524/1996). UNCLOS is a broad international treaty that covers numerous matters related to navigation and the exploitation of natural resources. In general, it can be stated that according to this treaty, maritime areas are divided into territorial seas, EEZ, and high seas. The jurisdiction of States based on the treaty in different situations varies from region to region.

The crimes that were concealed occurred in the Finnish EEZ, but the preliminary investigation measures against the vessel and its crew were initiated in Finnish territorial waters. Since the crimes that were concealed were committed before the vessel entered Finnish territorial waters, the scope of Finnish criminal law cannot be based on legal guidelines concerning the territorial sea. This assessment is not affected by whether the vessel arrived in Finnish territorial waters voluntarily, as the prosecutor has maintained, or was it forced there, as the defendants have argued.

Based on art 58 UNCLOS, freedom of navigation and certain other arts of the Convention apply in the EEZ. UNCLOS provisions concerning jurisdiction in the EEZ and on the high seas are therefore equivalent to each other insofar as they are applicable in this case.

In terms of the scope of Finnish criminal law, art 92.1 UNCLOS is of significance: ships may fly the flag of only one State and, except for exceptional cases mentioned in international agreements or UNCLOS, are subject to its exclusive jurisdiction on the high seas. According to the wording of this art, it applies to the ship, but not, eg, to persons on board. It has also been held in legal literature that this art does not prevent the parallel jurisdiction of States other than the flag State of the ship (see Matti Tupamäki, Valtion rikosöudlisen toiminvalt loosvuus kansinvälisnes oikeudessa, Helsinki 1999, p 195). According to the Court's assessment, art 92 UNCLOS is therefore not a matter for Ch 1, s 15 of the Criminal Code.

According to art 97.1 UNCLOS, in the event of a collision or other maritime casualty involving a ship on the high seas which renders the master of the ship or any other person in the service of the ship liable for criminal or disciplinary liability, criminal or disciplinary proceedings against such person may be brought only before the judicial or administrative authorities of the flag State, or the State of which s/he is a national.

Legal literature has held that this art excludes the jurisdiction of States other than those mentioned therein in criminal matters in situations falling within its scope (see Dan Helenius, Straffrattslig jurisdiktion, 2014, p 409; Tupamaki, p 196; and Alexander Proelss et al, United Nations Convention on the Law of the Sea - A Commentary, 2017, p 722).

However, UNCLOS does not define in more detail what is meant by an 'incident of navigation'. A similar provision was included in the Convention on the High Seas 1958, which preceded UNCLOS, in which it has been held that a maritime incident may include, among other things, damage to submarine cables (International Law Commission, Articles concerning the Law of the Sea with Commentaries, 1956, p 281).

The Enrica Lexie decision under Annex VII of UNCLOS has taken a position on the definition of a maritime incident (CMI967). According to this decision, the damage caused must be related to the manoeuvering or movement of a ship in order for it to be a maritime incident within the meaning of art 97.1 UNCLOS. However, legal literature has stated that that this art would not necessarily apply in situations where a ship deliberately drags an anchor with the intention of damaging submarine cables, or where cables are otherwise intentionally damaged (International Law Association, Submarine cables and Pipelines under International Law, [third] interim report 2024, para 46).

Damage to submarine cables is also covered by art 113 UNCLOS, which obligates every State to punish any intentional act or negligent omission by which a vessel flying its flag or a person under its jurisdiction has severed or damaged a submarine cable on the high seas in such a way as to cause the interruption or disruption of telegraph or telephone communications, or similarly has severed or damaged a submarine pipeline or high-voltage cable. The wording of the art is somewhat unclear as to its effects on the possibilities of States other than the flag State of the vessel to apply their own legislation to damage to cables, but legal literature has considered that the art limits jurisdiction to the flag State of the vessel (Proelss, p 782). This interpretation is supported by the Act on the Protection of Certain Underwater Cables, which implements the legislative obligation under this art in Finland, and on the basis of which the cutting or damaging of an underwater cable is punishable in all maritime areas. According to s 1(2) of the Act, however, it applies outside territorial waters only to a ship flying the Finnish flag, a Finnish citizen, or a Finnish company. The preamble to the Act states that the limitation of the scope of application of the s results from art 113 UNCLOS (HE 53/2004 vp p 40).

According to the clear wording of art 97 UNCLOS, jurisdiction in maritime incidents lies only with the States mentioned in the art, even when the act in question is a criminal act. The wording of the art does not support the interpretation put forward by the Prosecutor that the art does not apply to intentional crimes.

The issue has therefore been a maritime incident within the meaning of art 97 UNCLOS.

The application of Finnish criminal law is also opposed by art 113 UNCLOS and the Preamble to the Act on the Protection of Certain Underwater Cables based on it, which was explained above. The legislator intended that only cable damage caused by a Finnish citizen and a Finnish vessel outside Finnish territory would be dealt with in accordance with Finnish law, and that jurisdiction would otherwise be determined in accordance with art 113 UNCLOS. The charge and the claims for compensation based on it must therefore be dismissed under Ch 1, s 15 of the Criminal Code. The conclusion is the same for all the provisions of Ch 1 of the Criminal Code, and it is not necessary to comment further on the conduct of the defendants.