European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
MANGOURAS v. SPAIN - 12050/04 [2010] ECHR 1364 (28 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1364.html
Cite as:
[2010] ECHR 1364,
[2011] Crim LR 481,
54 EHRR 25,
(2012) 54 EHRR 25
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
GRAND
CHAMBER
CASE OF
MANGOURAS v. SPAIN
(Application
no. 12050/04)
JUDGMENT
STRASBOURG
28
September 2010
This
judgment is final but may be subject to editorial revision.
In the case of Mangouras v. Spain,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul
Costa,
President,
Christos
Rozakis,
Nicolas
Bratza,
Peer
Lorenzen,
Françoise
Tulkens,
Giovanni
Bonello,
Ireneu
Cabral Barreto,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Mark
Villiger,
George
Nicolaou,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
Alejandro
Saiz Arnaiz, ad hoc
judge,
and
Michael O’Boyle, Deputy
Registrar,
Having
deliberated in private on 23 September 2009 and on 23 June 2010,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 12050/04) against the Kingdom
of Spain lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Greek national, Mr Apostolos Ioannis
Mangouras (“the applicant”), on 25 March 2004.
The
applicant was represented by Mr J.-M. Ruiz Soroa, a lawyer practising
in Bilbao. The Spanish Government (“the Government”) were
represented by their Agent, Mr I. Blasco, Head of the Legal
Department for Human Rights, Ministry of Justice.
The
applicant alleged, in particular, that the sum set for bail in his
case had been excessive and had been fixed without his personal
circumstances being taken into consideration. He relied on Article 5
§ 3 of the Convention.
The
application was allocated to the Fifth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 14 November 2006 the Section
President decided to give notice of the application to the
Government. By virtue of Article 29 § 3 of the Convention and
Rule 54A of the Rules of Court, it was decided to examine the
admissibility and merits of the case at the same time.
The
Greek Government, who had been invited to submit written observations
on the case, did not express any wish to exercise that right (Article
36 § 1 of the Convention and Rule 44 § 1 of the Rules of
Court).
On
1 February 2008 the Court changed the composition of its Sections
(Rule 25 § 1). The case was assigned to the newly composed Third
Section (Rule 52 § 1). Within that Section, the Chamber that
would consider the case (Article 27 § 1 of the Convention) was
constituted as provided in Rule 26 § 1.
Mr
L. López Guerra, the judge elected in respect of Spain,
withdrew from sitting in the case. The Government accordingly
appointed Mr Alejandro Saiz Arnaiz to sit as an ad hoc judge
(Article 27 § 2 of the Convention and Rule 29 § 1).
On
8 January 2009 the Chamber, composed of Josep Casadevall, President,
Elisabet Fura, Corneliu Bîrsan, Boštjan M. Zupančič,
Egbert Myjer, Ineta Ziemele, judges, and Alejandro Saiz Arnaiz,
ad hoc judge, and of Santiago Quesada, Section Registrar,
delivered a judgment in which it held unanimously that there had been
no violation of Article 5 § 3 of the Convention.
On
7 April 2009 the applicant requested, in accordance with Article 43
of the Convention and Rule 73, that the case be referred to the Grand
Chamber, arguing that there had been a violation of Article 5 §
3. On 5 June 2009 a panel of the Grand Chamber granted the request.
The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24.
The applicant and the Government each filed a memorial
before the Grand Chamber. In addition, third-party comments were
received from Mr Hugh Mercer QC, who had been given leave by the
President to intervene in the written procedure (Article 36 § 2
of the Convention and Rule 44 § 2) on behalf of the
International Transport Workers’ Federation, the International
Chamber of Shipping, the International Shipping Federation, the
Baltic and International Maritime Council (BIMCO), the International
Association of Independent Tanker Owners, the Hong Kong Shipowners’
Association, the International Association of Dry Cargo Shipowners,
the International Ship Managers’ Association, the Greek
Shipping Cooperation Committee, the Asian Shipowners’ Forum,
the International Group of P&I Clubs, the International Maritime
Employers’ Committee Ltd and the European Community Shipowners’
Association.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 23 September 2009 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr I. Blasco Lozano, Head
of the Legal Department for Human
Rights, Ministry of
Justice, Agent,
Mrs C. Castro Rey, State Counsel, Adviser;
(b) for the applicant
Mr E. Fitzgerald QC,
lawyer, Counsel,
Mr K. Annand, lawyer,
Mr J.-M. Ruiz
Soroa, lawyer,
Mr S. Zabaleta Sarasua, lawyer,
Mr M. Volikas,
lawyer,
Mr O. Murray, lawyer, Advisers.
The
Court heard addresses by Mr Fitzgerald and Mr Blasco.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1935 and lives in Greece.
On
13 November 2002 the ship Prestige, flying the flag of the
Bahamas, was sailing in the Spanish exclusive economic zone off the
coast of Galicia, carrying 70,000 tonnes of fuel oil. At a distance
of 28 miles from Cape Finisterre it sent out an SOS after sustaining
sudden and severe damage which produced a leak and caused the
contents of its tanks to spill into the Atlantic Ocean.
As
the Prestige was in danger of sinking, the maritime
authorities launched a large-scale operation to rescue its crew. The
ship was adrift and was approaching the coast, spilling its cargo
into the sea. The applicant, who was the ship’s Master, was
taken by helicopter to the offices of the Corunna (A Coruña)
harbourmaster, where he was arrested.
The
spillage of the ship’s cargo caused an ecological disaster
whose effects on marine flora and fauna lasted for several months and
spread as far as the French coast. The shores of the Atlantic coast
of Cantabria and Galicia were severely polluted by the numerous waves
of oil which were washed up. The oil spill blackened beaches and
cliffs, destroyed marine life, adversely affected water quality and
had an immediate environmental impact on numerous animal species. It
caused damage to protected natural areas and had considerable
repercussions on several sectors of the economy in the regions
concerned, particularly on fishing, commerce and tourism.
By
a decision of 17 November 2002 the Corunna no. 4 investigating judge
remanded the applicant in custody and set bail at three million euros
(EUR), after finding that the facts of the case disclosed sufficient
indicative evidence to justify opening a criminal investigation.
While acknowledging that the oil spill had been caused by an
accident, the judge said that some of the information in the file,
although still provisional at that stage in the proceedings,
suggested that the applicant had been at fault in several respects,
in particular in failing to cooperate sufficiently with the port
authorities when they had tried to take the vessel in tow. The
applicant’s conduct could constitute an offence of causing
damage to natural resources and the environment and one of failing to
comply with the instructions of the administrative authorities. In
the judge’s opinion, the seriousness of the offences in
question and the fact that the applicant was a foreign national who
had no particular ties with Spain justified the high sum set for
bail. The relevant part of the decision reads as follows:
“The information obtained discloses indicative
evidence – still provisional at the preliminary investigation
stage – of an offence of causing damage to natural resources
and the environment for the purposes of Article 325 and, possibly,
Article 326 of the Criminal Code, and of an offence of failure to
comply with the instructions of the administrative authorities,
punishable under Article 556 of the Code. The investigation has
produced sufficient indicative evidence to suggest that Mr Apostolos
Mangouras could be criminally responsible for the offences in
question. In view of the penalties laid down in the Criminal Code for
these offences, and the fact that the application provided for in
Article 504 bis § 2 and Article 539 of the Code of
Criminal Procedure was made at the mandatory hearing, an order should
be made, in accordance with Articles 503 and 504 of that Code, for
the accused’s pre-trial detention as a preventive measure,
accompanied by the right for the accused to communicate with others
and the possibility of release on bail.
The reasonable indications referred to above emerge from
the documents in the case file and, in particular, from detailed
examination of the testimony of the witnesses who appeared this
morning. All the evidence indicates that the severe damage to the
Prestige was caused by the unforeseeable phenomenon of a storm
surge, but that actions were taken which could form the basis of a
criminal prosecution, as indicated in the previous paragraph.
It should be stressed that the steps taken hitherto and
the conclusions to be drawn for the purposes of this decision are of
a wholly provisional nature and that many further steps and much more
expert evidence will be needed in order to fully elucidate the facts.
However, it is clear at this stage that the Prestige did not
have any emergency towing equipment or that if it did, it was not in
working order, as demonstrated by the recordings of conversations. It
is also clear that the ship’s Master, by repeatedly ignoring
the instructions of the port authorities, hampered meaningful joint
efforts to lessen the extremely serious risks.
It appears that the Master of the Prestige
refused for almost three hours to cooperate and subsequently
continued to do so indirectly, creating difficulties by refusing to
take the necessary steps to ensure effective towing of the vessel or
to start the engine so that the ship could advance, however slowly.
These events occurred within the country’s 24-mile limit and,
by definition, within the 200-mile zone. It is true, as already
indicated, that further investigative elements are required, in
particular the ship’s log, which has been urgently requested,
and that it will be necessary to verify all the other information
contained in the recordings of conversations, transcripts of which
appear to be in the possession of the Cape Finisterre control centre.
Without prejudice to all of the above, the accused’s
detention could be dispensed with subject to bail being furnished in
the amount of three million euros. In the court’s view, the
security in question is justified in view of the seriousness of the
offences concerned and the heavy sentence they carry and also because
the investigation is in the early stages, the accused’s release
could impede the investigation, the case has clearly caused a major
public outcry and, in addition to the issues of criminal
responsibility raised, there are significant civil liability issues
at stake involving substantial sums. Furthermore, Mr Mangouras has no
ties in Spain and could leave the country at any time and thus evade
prosecution. For all the reasons outlined above it is necessary and
unavoidable, in the present circumstances, to fix bail. Bail cannot,
for the time being at least, be replaced by a less restrictive
measure.”
On
19 November 2002 the applicant requested his release and, in the
alternative, the reduction of bail to EUR 60,000 to reflect his
personal situation. He also submitted that his advanced age should be
taken into account. In a decision of 27 November 2002 the Corcubión
(Corunna) no. 1 investigating judge refused the applicant’s
request. The judge took the view that the seriousness of the offences
of which the applicant stood accused justified his continued
pre-trial detention and that the latter measure was exceptional,
subsidiary, temporary and proportionate in nature and thus satisfied
the remaining criteria laid down by the case-law of the
Constitutional Court. As to the amount set for bail, the judge stated
that the applicant’s appearance at trial was vital in order to
elucidate the sequence of events following the leak in the vessel. He
also reiterated the arguments of the first investigating judge to the
effect that the seriousness of the offences, the public outcry caused
by the marine pollution, the applicant’s Greek nationality, the
fact that his permanent address was abroad and the fact that he had
no ties with Spain justified setting a high level of bail in order to
rule out any risk that the applicant might fail to appear.
On
7 December 2002 the same investigating judge confirmed the decision,
rejecting an application from the applicant to set it aside (recurso
de reforma).
An
appeal by the applicant was dismissed on 3 January 2003 by the
Corunna Audiencia Provincial on the ground that there was
sufficient evidence to charge the applicant with serious offences and
that the amount of bail was justified by the unusual circumstances of
the case. The court pointed out that the applicant had been remanded
in custody on account of his “alleged involvement in the acts
of which he is accused, namely acting in a manner liable to cause a
disaster, failing to comply with the instructions of the port
authorities and committing an offence of causing damage to natural
resources”. It further pointed out that the investigating judge
had offered the applicant the possibility of avoiding custody on
grounds of “alleged responsibility for offences against natural
resources and the environment and an offence of failure to comply
with the instructions of the administrative authorities”,
subject to the posting of bail in the amount of EUR 3,000,000. The
Audiencia Provincial noted the outcry caused by the alleged
offences and took the view that the impugned decision was not open to
criticism on any account, “including with regard to the amount
of bail”.
The
Audiencia Provincial stressed that the prima facie evidence
taken into consideration by the investigating judge in ordering the
applicant’s pre trial detention concerned serious
offences, that it was too early to rule on whether the offence had
been committed intentionally and that the applicant’s detention
pursued the legitimate aim of preventing the risk of his absconding,
a risk closely linked to the seriousness of the alleged offence and
his lack of any particular ties in Spain. It referred in that regard
to the category of offences in question and the severity of the
likely sentence, the fact that the accused’s presence was
essential to the investigation, the possibility that the trial might
collapse if he absconded and the public outcry surrounding the
established facts.
The
Audiencia Provincial dismissed the ground of appeal based on
the applicability of Article 230 of the United Nations Convention on
the Law of the Sea of 10 December 1982, holding that the provision in
question referred only to administrative offences relating to
pollution of the marine environment committed by foreign vessels
beyond the territorial sea, for which only monetary penalties could
be imposed, and not to wilful and serious acts of pollution in the
territorial sea.
On 6 February 2003 the Corcubión (Corunna) no. 1 investigating
judge recorded the lodging of a bank guarantee in an amount
corresponding to the sum set for bail, which was provided as a
one-off, spontaneous humanitarian gesture by the London Steamship
Owners’ Mutual Insurance Association Limited (“the London
P&I Club”), which insured the ship’s owner.
Accordingly, on 7 February 2003, the judge ordered the applicant’s
provisional release after eighty-three days in detention, subject to
the following conditions:
“(a) that [the applicant] supply an
address in Spain;
(b) that he report every day before 1 p.m. to
the police headquarters corresponding to the address supplied;
(c) that he remain in the country and surrender his
passport to the court’s registry.”
On
28 May 2003 the London P&I Club and the ship’s owner,
Mare Shipping Inc., paid out EUR 22,777,986 in compensation for
the damage for which they were civilly liable within the limits laid
down by Article V of the 1992 International Convention on Civil
Liability for Oil Pollution Damage (“CLC 1992”, see
paragraph 54 below).
Relying
on Article 17 of the Constitution (right to liberty and security),
the applicant lodged an amparo appeal with the Constitutional
Court. While he did not appeal against his pre-trial detention, for
which he considered sufficient reasons to have been given, the
applicant complained of the amount set for bail, arguing that it had
been excessive and disproportionate in view of his financial
circumstances and had made any prospect of provisional release
unrealistic. He alleged that the amount had been fixed without
account being taken of his personal circumstances, in disregard of
the requirements of the Court’s case-law.
By
a reasoned decision (auto) of 29 September 2003, the
Constitutional Court declared the appeal inadmissible. It began by
observing that, according to its case-law, the fact that the
applicant had been released did not render the amparo appeal
devoid of purpose, given that:
“... in the event of a breach of the fundamental
right asserted, the Court should allow the appeal and grant the
applicant amparo relief.”
However,
on the merits, the Constitutional Court ruled as follows:
“... Article 531 of the Code of Criminal Procedure
stipulates that the amount set for bail should take into account,
among other factors, the nature of the offence, any previous
convictions and other circumstances that might prompt the accused to
seek to evade justice. According to the case-law of the European
Court of Human Rights, the object of bail is to secure the presence
of the accused at the trial ... and the amount should act as a
deterrent against any wish to abscond.
...
The rulings given in the instant case concerning the
amount of bail and the refusal to reduce it provided ample reasons
based on the primary objective of securing the accused’s
presence at the trial, the seriousness of the offences in question,
the national and international disaster caused by the oil spill, the
fact that the accused is a non national and the fact that he has
no ties in Spain.
These circumstances led the courts to consider that the
risk of flight could only be reduced by setting such a high sum for
bail ... They also took into consideration the accused’s
personal and financial circumstances and his professional
environment. ... In fixing bail at a level such as to dispel any wish
to abscond, they further took account of other aspects of the
accused’s personal situation, namely his Greek nationality, the
fact that his permanent address is abroad and the fact that he has no
ties whatsoever in Spain.
It follows that bail was fixed on the basis of criteria
of proportionality ... The exceptional amount reflects the
exceptional nature of the situation.”
Subsequently,
in March 2005, the Spanish authorities authorised the applicant’s
return to his country of origin, where he is now living, on condition
that the Greek authorities ensured his compliance with the periodic
supervision to which he had been subject in Spain. The applicant is
therefore required to report every two weeks to a police station on
the island of Icaria, where he was born, or in Athens, where his
children live.
The
criminal proceedings are currently pending before the Corcubión
(Corunna) no. 1 investigating judge.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
A. Domestic law
The
relevant provision of the Spanish Constitution reads as follows:
Article 17
“Everyone has the right to liberty and security.
No one may be deprived of his liberty other than in accordance with
the provisions of this Article and in the circumstances and form
provided by law.”
The
relevant provisions of the Criminal Code in force at the material
time stipulated as follows:
Article 92
“Notwithstanding the provisions of the preceding
Articles, convicted persons who have reached the age of seventy or
who reach that age while serving their sentence, and who satisfy the
requirements laid down [by the law], with the exception of the
requirement to have served three quarters or, where appropriate, two
thirds of [the sentence], may be granted conditional release.
...”
Article 325
“Any person who ... causes or produces, directly
or indirectly, emissions, discharges ... into ... inland or maritime
waters or groundwater ... likely to severely upset the balance of
natural systems, shall be liable to a term of imprisonment of between
six months and four years, a day-fine payable for between eight and
twenty four months and a prohibition of between one and three
years on carrying out his or her occupation. Where there is a risk to
persons’ health the term of imprisonment shall be in the upper
half of the range.”
Article 326
“The commission of any of the acts described in
the previous Article shall entail a more severe sentence when
accompanied by:
a. illegal operation of an industrial or
other activity using facilities which have not obtained the necessary
administrative authorisation or approval; or
b. failure to comply with the express
instructions of the administrative authority aimed at remedying or
putting an end to the activities referred to in the previous Article;
or
c. falsification or concealment of
information on the environmental implications of the activities in
question; or
d. hampering of the administrative
authorities’ inspection activities; or
e. a risk of irreversible or catastrophic
damage; or
f. illegal pumping of water while
restrictions are in place.”
Article 331
“The penalty imposed for an offence referred to in
this Chapter shall be in the lower half of the range where the
offence was the result of gross negligence.”
The
second paragraph of Article 325 of the Criminal Code, as amended in
November 2003, provides:
Article 325
“...
2. Persons who knowingly release, discharge
or introduce ionising radiation or other substances into the air,
soil or maritime waters ... in quantities such as to cause death or
illness ... with irreversible effects, shall be liable to a term of
imprisonment of between two and four years in addition to the penalty
for causing personal injury.”
The
relevant provision of the Code of Criminal Procedure reads as
follows:
Article 531
“In determining the nature and amount of the
security, consideration should be given to the nature of the offence,
the social circumstances of the accused and any previous convictions,
together with any other circumstance which may increase or reduce the
incentive to evade justice.”
The
Environmental Liability Act (Law no. 26/2007 of 23 October 2007)
regulates operators’ responsibility to prevent and remedy
environmental damage in accordance with Article 45 of the
Constitution and the precautionary and “polluter pays”
principles.
B. Protection of the marine environment
An
increasing tendency has been observed at European level to use the
criminal law as a means of enforcing the environmental obligations
imposed by European Union law.
1. Council of Europe instruments
In
1998 the Council of Europe opened for signature the Convention on the
Protection of the Environment through Criminal Law (ETS No. 172). To
date, however, only thirteen States have signed the Convention and
Estonia is the only country to have ratified it. The text includes
the following provisions:
Article
2 – Intentional offences
“1. Each Party shall adopt such
appropriate measures as may be necessary to establish as criminal
offences under its domestic law:
a. the discharge, emission or introduction of
a quantity of substances or ionising radiation into air, soil or
water which:
(i) causes
death or serious injury to any person, or
(ii) creates
a significant risk of causing death or serious injury to any person;
b. the unlawful discharge, emission or
introduction of a quantity of substances or ionising radiation into
air, soil or water which causes or is likely to cause their lasting
deterioration or death or serious injury to any person or substantial
damage to protected monuments, other protected objects, property,
animals or plants;
c. the unlawful disposal, treatment, storage,
transport, export or import of hazardous waste which causes or is
likely to cause death or serious injury to any person or substantial
damage to the quality of air, soil, water, animals or plants;
d. the unlawful operation of a plant in which
a dangerous activity is carried out and which causes or is likely to
cause death or serious injury to any person or substantial damage to
the quality of air, soil, water, animals or plants;
e. the unlawful manufacture, treatment,
storage, use, transport, export or import of nuclear materials or
other hazardous radioactive substances which causes or is likely to
cause death or serious injury to any person or substantial damage to
the quality of air, soil, water, animals or plants,
when committed intentionally.
2. Each Party shall adopt such appropriate
measures as may be necessary to establish as criminal offences under
its domestic law aiding or abetting the commission of any of the
offences established in accordance with paragraph 1 of this article.”
Article
3 – Negligent offences
“1. Each Party shall adopt such
appropriate measures as may be necessary to establish as criminal
offences under its domestic law, when committed with negligence, the
offences enumerated in Article 2, paragraph 1 a to e.
2. Any State may, at the time of signature or
when depositing its instrument of ratification, acceptance, approval
or accession, by a declaration addressed to the Secretary General of
the Council of Europe, declare that paragraph 1 of this article, in
part or in whole, shall only apply to offences which were committed
with gross negligence.
3. Any State may, at the time of signature or
when depositing its instrument of ratification, acceptance, approval
or accession, by a declaration addressed to the Secretary General of
the Council of Europe, declare that paragraph 1 of this article, in
part or in whole, shall not apply to:
–
subparagraph 1.a.ii. of Article 2,
–
subparagraph 1.b. of Article 2, insofar as the
offence relates to protect monuments, to other protected objects or
to property.”
Article
6 – Sanctions for environmental offences
“Each Party shall adopt, in accordance with the
relevant international instruments, such appropriate measures as may
be necessary to enable it to make the offences established in
accordance with Articles 2 and 3 punishable by criminal sanctions
which take into account the serious nature of these offences. The
sanctions available shall include imprisonment and pecuniary
sanctions and may include reinstatement of the environment.”
In
its report on sea pollution of 30 March 2005, the Committee on the
Environment, Agriculture and Local and Regional Affairs of the
Parliamentary Assembly of the Council of Europe stated as follows:
“...
In the sphere of penalties
167. Four lines of thought must be pursued:
a) The excessively absolute principle of
freedom of navigation must be revised, as it is no longer appropriate
in the context of present-day transport flows. Legally speaking, this
would open the way for passive control and ultimately active control,
at least in zones subject to risk. The issue of the responsibilities
of control bodies could be considered at the same time.
b) A state which has suffered pollution
damage caused by a ship must be able to demand reparation from the
state whose flag that ship flies where it is established that the
damage results completely or partly from the flag state’s
failure to exercise any effective monitoring of the vessel causing
the damage.
c) Article 230 of the Convention on the Law
of the Sea must be amended to make clearer the possibility of
penalties of imprisonment for the most serious pollution offences.
d) An international maritime criminal court
must be set up. In the same way that the notion of crimes against
humanity finally yielded the creation of the international criminal
court, it cannot be excluded in the future that states may eventually
enshrine the notion of ‘crime against the environment’,
drawing the consequences, in legal terms, of the idea put forward by
some of establishing the sea as the common heritage of humanity.”
2. European Union developments
The
issue of environmental crime has also been debated for many years
within the European Union (“the EU”).
In
its judgment, the Chamber referred to Directive 2005/35/EC on
ship-source pollution, which makes ship-source discharges in breach
of Community law a criminal offence. The Directive further requires
that both criminal and administrative penalties be imposed if the
persons concerned are found to have committed or participated in the
act with intent or as a result of negligent behaviour. The Directive,
adopted in response to the sinking of the Erika and of the
Prestige, specifically provides that the Member States must
implement it by 1 March 2007. It was therefore not intended to apply
to events having occurred prior to that date.
In
any event, Directive 2005/35/EC applies to discharges occurring,
inter alia, in the exclusive economic zone or equivalent zone
of a Member State, from any ship with the exception of any warship,
naval auxiliary or other ship owned or operated by a State and used
at the material time only on government non-commercial service. The
Member States must take the necessary measures to ensure that
infringements are subject to effective, proportionate and dissuasive
penalties, which may include criminal or administrative penalties.
In
its judgment of 3 June 2008 in Case C-308/06, the Court of Justice of
the European Communities (“the ECJ”), having been called
upon to examine a challenge to the validity of Directive 2005/35/EC,
found that the concept of “serious negligence” provided
for in many national legal systems could only refer to a patent
breach of a duty of care (paragraph 76 of the judgment). The ECJ
further held that “serious negligence” within the meaning
of the Directive should be understood as entailing an unintentional
act or omission by which the person responsible committed a patent
breach of the duty of care which he should have and could have
complied with in view of his attributes, knowledge, abilities and
individual situation (paragraph 77).
In
the wake of the ECJ judgments of 13 September 2005 and 23 October
2007, which quashed respectively Council Framework Decision
2003/80/JHA of 27 January 2003 and Framework Decision 2005/667/JHA,
adopted by the Council on 12 July 2005 to strengthen the criminal-law
framework for the enforcement of the law against ship-source
pollution and to complement Directive 2005/35/EC (referred to in the
Chamber judgment), the Commission put forward a proposal for a
Directive on the protection of the environment through criminal law.
The EU legislative process culminated with the adoption of
Directive 2008/99/EC. Point 3 of the preamble to the Directive
states that the availability of criminal penalties demonstrates
social disapproval of a qualitatively different nature compared to
administrative penalties or a compensation mechanism under civil law.
It also makes an explicit link between the need for criminal
penalties and past experience in the field of environmental
protection.
The
Directive in question requires Member States to treat as criminal
offences certain activities that breach EU environmental legislation,
including:
(i) unlawful
shipment of waste;
(ii) trade
in endangered species or in ozone-depleting substances;
(iii) conduct
causing significant deterioration of a habitat within a protected
site;
(iv) significant
damage to the environment caused by the treatment, disposal, storage,
transport, export or import of hazardous waste (including oil and
gas, waste oils, sewage sludge, metals or electrical or electronic
waste); and
(v) significant
damage to the environment caused by the unlawful discharge of
materials or ionising radiation.
Member
States are required to subject these offences to effective,
proportionate and dissuasive criminal penalties and to ensure that
companies can be held liable for offences carried out by individuals
on their behalf.
For
its part, Directive 2004/35/CE of the European Parliament and of the
Council of 21 April 2004 on environmental liability with regard to
the prevention and remedying of environmental damage is aimed at
establishing a framework of environmental liability based on the
“polluter pays” principle, with a view to preventing and
remedying environmental damage.
C. Vessels and crews in international law
1. United Nations Convention on the Law of the Sea
(“UNCLOS”) of 10 December 1982
The
relevant articles of this Convention, which was ratified by Spain on
15 January 1997, read as follows:
Article
220
Enforcement by coastal States
“...
3. Where there are clear grounds for
believing that a vessel navigating in the exclusive economic zone or
the territorial sea of a State has, in the exclusive economic zone,
committed a violation of applicable international rules and standards
for the prevention, reduction and control of pollution from vessels
or laws and regulations of that State conforming and giving effect to
such rules and standards, that State may require the vessel to give
information regarding its identity and port of registry, its last and
its next port of call and other relevant information required to
establish whether a violation has occurred.
...
6. Where there is clear objective evidence
that a vessel navigating in the exclusive economic zone or the
territorial sea of a State has, in the exclusive economic zone,
committed a violation referred to in paragraph 3 resulting in a
discharge causing major damage or threat of major damage to the
coastline or related interests of the coastal State, or to any
resources of its territorial sea or exclusive economic zone, that
State may, subject to section 7, provided that the evidence so
warrants, institute proceedings, including detention of the vessel,
in accordance with its laws.
7. Notwithstanding the provisions of
paragraph 6, whenever appropriate procedures have been established,
either through the competent international organization or as
otherwise agreed, whereby compliance with requirements for bonding or
other appropriate financial security has been assured, the coastal
State if bound by such procedures shall allow the vessel to proceed.
...”
Article 221
Measures
to avoid pollution arising from maritime casualties
“1. Nothing in this Part shall
prejudice the right of States, pursuant to international law, both
customary and conventional, to take and enforce measures beyond the
territorial sea proportionate to the actual or threatened damage to
protect their coastline or related interests, including fishing, from
pollution or threat of pollution following upon a maritime casualty
or acts relating to such a casualty, which may reasonably be expected
to result in major harmful consequences.
2. For the purposes of this article,
‘maritime casualty’ means a collision of vessels,
stranding or other incident of navigation, or other occurrence on
board a vessel or external to it resulting in material damage or
imminent threat of material damage to a vessel or cargo.”
Article
227
Non-discrimination with respect to foreign vessels
“In exercising their rights and performing their
duties under this Part, States shall not discriminate in form or in
fact against vessels of any other State.”
Article 230
Monetary
penalties and the observance of recognized rights of the accused
“1. Monetary penalties only may be
imposed with respect to violations of national laws and regulations
or applicable international rules and standards for the prevention,
reduction and control of pollution of the marine environment,
committed by foreign vessels beyond the territorial sea.
2. Monetary penalties only may be imposed
with respect to violations of national laws and regulations or
applicable international rules and standards for the prevention,
reduction and control of pollution of the marine environment,
committed by foreign vessels in the territorial sea, except in the
case of a wilful and serious act of pollution in the territorial sea.
3. In the conduct of proceedings in respect
of such violations committed by a foreign vessel which may result in
the imposition of penalties, recognized rights of the accused shall
be observed.”
With
regard to detention of seafarers and their release, UNCLOS provides:
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 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 292
Prompt
release of vessels and crews
“1. Where the authorities of a State
Party have detained a vessel flying the flag of another State Party
and it is alleged that the detaining State has not complied with the
provisions of this Convention for the prompt release of the vessel or
its crew upon the posting of a reasonable bond or other financial
security, the question of release from detention may be submitted to
any court or tribunal agreed upon by the parties or, failing such
agreement within 10 days from the time of detention, to a court or
tribunal accepted by the detaining State under article 287 or to the
International Tribunal for the Law of the Sea, unless the parties
otherwise agree.
2. The application for release may be made
only by or on behalf of the flag State of the vessel.
3. The court or tribunal shall deal without
delay with the application for release and shall deal only with the
question of release, without prejudice to the merits of any case
before the appropriate domestic forum against the vessel, its owner
or its crew. The authorities of the detaining State remain competent
to release the vessel or its crew at any time.
4. Upon the posting of the bond or other
financial security determined by the court or tribunal, the
authorities of the detaining State shall comply promptly with the
decision of the court or tribunal concerning the release of the
vessel or its crew.”
2. Case-law of the International Tribunal for the Law
of the Sea
The
provisions concerning detention and release of vessels and crews have
been interpreted by the International Tribunal for the Law of the Sea
(“the Tribunal”). In doing so, the Tribunal has laid down
a number of criteria in order to determine what constitutes a
reasonable bond within the meaning of Article 73 of UNCLOS read in
conjunction with Article 292 of that Convention. Hence, it is
interesting to examine the approach taken by the Tribunal in cases
relating to the detention of a foreign national by the coastal State
and the fixing of the amount of bail. However, it should be borne in
mind, firstly, that the Tribunal, unlike the Court, is tasked with
striking a balance between the competing interests of two States
rather than the interests of an individual and those of a State.
Secondly, the issues brought before the Tribunal concern the
detention and release of both crews and vessels. Thirdly, unlike the
instant case, which is about an environmental disaster, the vast
majority of cases before the Tribunal concern fisheries related
violations. In its judgment of 6 August 2007 in Hoshinmaru (Japan
v. the Russian Federation), the Tribunal summarised the
principles it applies in deciding what constitutes a reasonable bond.
The relevant extracts read as follows:
“82. The Tribunal has expressed its
views on the reasonableness of the bond in a number of its judgments.
In the ‘Camouco’ Case it stated: ‘the
Tribunal considers that a number of factors are relevant in an
assessment of the reasonableness of bonds or other financial
security. They include the gravity of the alleged offences, the
penalties imposed or imposable under the laws of the detaining State,
the value of the detained vessel and of the cargo seized, the amount
of the bond imposed by the detaining State and its form’ (ITLOS
Reports 2000, p. 10, at p. 31, para. 67). In the ‘Monte
Confurco’ Case it added that: ‘This is by no means a
complete list of factors. Nor does the Tribunal intend to lay down
rigid rules as to the exact weight to be attached to each of them’
(ITLOS Reports 2000, p. 86, at p. 109, para. 76). In the
‘Volga’ Case it stated that: ‘In assessing
the reasonableness of the bond or other security, due account must be
taken of the terms of the bond or security set by the detaining
State, having regard to all the circumstances of the particular case’
(ITLOS Reports 2002, p. 10, at p. 32, para. 65). In the ‘Juno
Trader’ Case the Tribunal further declared that: ‘The
assessment of the relevant factors must be an objective one, taking
into account all information provided to the Tribunal by the parties’
(ITLOS Reports 2004, p. 17, at p. 41, para. 85).
...
89. The proceedings under article 292 of the
Convention, as clearly provided in paragraph 3 thereof, can deal only
with the question of release, without prejudice to the merits of any
case before the appropriate domestic forum against the vessel, its
owner or its crew. Nevertheless, in the proceedings before it, the
Tribunal is not prevented from examining the facts and circumstances
of the case to the extent necessary for a proper appreciation of the
reasonableness of the bond as set by the Respondent (‘Monte
Confurco’, ITLOS Reports 2000, p. 86, at pp. 108-109, para.
74). However, the Tribunal wishes to emphasize that in so doing it is
by no means acting as a court of appeal (‘Monte Confurco’,
ITLOS Reports 2000, p. 86, at p. 108, para. 72).”
It
is clear from the foregoing that, in assessing the reasonableness of
the bond, the Tribunal takes three factors into consideration:
(i) the gravity of the alleged offences; (ii) the
penalties imposed or imposable under the laws of the detaining State
in so far as they are reasonably proportionate to the gravity of the
alleged offences; and (iii) the value of the detained
vessel and of the cargo seized. In doing so, the Tribunal is mindful
of its duty not to prejudice the merits of the case, which are
decided domestically. However, the Tribunal considers that it is not
prevented from making determinations bearing on the merits when these
are necessary for the assessment of a reasonable bond.
3. The BIMCO report of 23 March 2009
The
Baltic and International Maritime Council (“BIMCO”) is an
independent shipping association with a membership composed of
shipowners, managers, brokers, agents and many other stakeholders
with vested interests in the shipping industry. BIMCO is one of the
third-party interveners in the present case. On 23 March 2009 BIMCO
published a report on the treatment of seafarers which is interesting
in several respects.
Firstly,
the report identifies fourteen cases where sanctions were taken
against the seafarers involved before any deliberate act or
negligence had been admitted or proven in court. The period examined
runs for eleven years from 1996 until 2007 and the cases dealt with –
which include the Mangouras (or Prestige) case –
involve twelve coastal States. The report concludes that: (i) the
use of criminal sanctions against seafarers is a worldwide
phenomenon, by no means restricted to particular countries or
regions; (ii) although the rules are fair, their
application is unjust, often flying in the face of the presumption of
innocence; and (iii) while there are relatively few cases,
the issues involved clearly illustrate that there are continuing
problems with respect to the unfair treatment of seafarers.
Secondly,
the report examines a range of instruments in connection with the
treatment of seafarers, including international conventions, the
Universal Declaration of Human Rights and a number of regional and
national instruments. In the last category, particular attention is
given to the European Union legal framework and to the law in France,
the United States of America, Canada and the United Kingdom. In its
conclusions, BIMCO observes that the test generally applied in those
instruments is gross negligence, with punishment ranging from fines
to imprisonment.
Finally,
this report was examined by the Legal Committee of the International
Maritime Organization (IMO) at its 95th session from 30 March to
3 April 2009. As regards the fair treatment of seafarers, the minutes
of the Legal Committee record that:
“The Committee agreed that the Guidelines on Fair
Treatment of Seafarers in the event of a maritime accident, adopted
by the Legal Committee, and the Code of International Standards and
Recommended Practices for a Safety Investigation into a Marine
Casualty or Marine Incident, adopted by IMO’s Maritime Safety
Committee, should be strictly applied by States so that a proper
balance could be achieved between the need, on the one hand, for a
thorough investigation of maritime accidents and, on the other hand,
the protection of the rights of seafarers.
Many delegates noted that the issue of fair treatment of
seafarers was the direct responsibility of port, coastal and flag
States, the State of the nationality of the seafarers, shipowners,
and seafarers. States were obliged to treat seafarers fairly,
pursuant to the Universal Declaration of Human Rights and regional
human rights instruments, as well as under national law. There was
also a consensus that States should comply with the Guidelines on
fair treatment of seafarers adopted by the Legal Committee.”
The
Guidelines on fair treatment of seafarers are attached to the
observations of the third-party interveners in the present case.
D. International Convention for the Prevention of
Pollution from Ships of 2 November 1973 and the Protocol thereto
adopted on 17 February 1978 (“MARPOL 73/78”)
This
Convention, which, together with the Protocol thereto, was ratified
by Spain on 6 July 1984, has been amended on several occasions, most
recently in July 2007 (entry into force December 2008). Annex I to
the Convention relates to the prevention of pollution by oil
following collision or stranding. The Convention, which is a
combination of two treaties adopted in 1973 and 1978, constitutes the
main instrument covering prevention of pollution of the marine
environment by ships from operational or accidental causes.
E. Civil liability and compensation for oil pollution
damage
1. 1992 International Convention on Civil Liability for
Oil Pollution Damage (“CLC 1992”)
This
Convention governs the liability of shipowners for oil pollution
damage. It sets up a system of strict liability for shipowners and a
system of compulsory liability insurance. The shipowner is normally
entitled to limit his liability to an amount which is linked to the
tonnage of his ship.
Article III
“1. Except as provided in paragraphs 2
and 3 of this Article, the owner of a ship at the time of an
incident, or, where the incident consists of a series of occurrences,
at the time of the first such occurrence, shall be liable for any
pollution damage caused by the ship as a result of the incident.
...
4. No claim for compensation for pollution
damage may be made against the owner otherwise than in accordance
with this Convention. Subject to paragraph 5 of this Article, no
claim for compensation for pollution damage under this Convention or
otherwise may be made against:
(a) the servants or agents of the owner or
the members of the crew;
(b) the pilot or any other person who,
without being a member of the crew, performs services for the ship;
...
unless the damage resulted from their personal act or
omission, committed with the intent to cause such damage, or
recklessly and with knowledge that such damage would probably result.
...”
Article V
“...
2. The owner shall not be entitled to limit
his liability under this Convention if it is proved that the
pollution damage resulted from his personal act or omission,
committed with the intent to cause such damage, or recklessly and
with knowledge that such damage would probably result.
...”
2. The London P&I Rules
The
Protection and Indemnity Clubs were set up by shipowners themselves
to provide cover against various risks including those arising out of
pollution caused by their vessels. They are governed by general
conditions (the London P&I Rules), the relevant parts of which
read as follows:
9.28
– Omnibus Rule
“9.28.1 Liabilities, losses, costs and
expenses incidental to the business of owning, operating or managing
Ships which and to such extent as the Committee in its sole
discretion shall consider fall within the scope of this Class,
9.28.1.1 PROVIDED that there shall be no
recovery which is expressly excluded by other provisions of these
Rules, save to the extent that those members of the Committee present
when the claim is being considered are unanimous that such exclusion
should be over-ridden in the particular circumstances of the case.
...”
Rule 20 – Bail
“20.1 The Association may, but shall in
no case be obliged to, provide on behalf of an Assured security to
prevent arrest or obtain release from arrest or otherwise in respect
of an entered Ship and if it does such Assured shall upon first
demand made at any time by the Association in writing arrange such
counter-security (which expression may in the Association’s
sole discretion include a deposit of cash with the Association) as
the Association may require and (with or without such
counter-security having been required or arranged) shall indemnify
the Association against all liabilities and expenses incurred by the
Association in consequence of the security originally provided by the
Association. In the event that the Assured does not arrange such
counter-security as may have been required or does not indemnify the
Association as aforesaid, the Association, without prejudice to its
other rights, shall be entitled to retain any amounts which would
otherwise be recoverable by such Assured, notwithstanding that the
same may have no connection with the liability in respect of which
the original security was provided and may relate to other periods of
cover before or after that liability was incurred by the Assured or
to another entered Ship. The provision of security by the Association
shall be without prejudice to the Association’s liability to
the Assured for the claim in question.
...”
THE LAW
ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
The
applicant complained of the amount set for bail by the Spanish
authorities, which he considered disproportionate. He submitted that
the authorities had not taken into account his personal situation
(profession, income, assets, previous convictions, family
circumstances and so forth) in deciding on the amount. The applicant
relied on Article 5 § 3 of the Convention which, in its relevant
part, provides:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1.c of this article ... shall be entitled
to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial.”
A. The Chamber’s conclusions
The
Chamber found that account had to be taken of the particular
circumstances of the case which distinguished it from other cases in
which the Court had had occasion to rule on the length of pre-trial
detention. It took the view that the seriousness of the environmental
disaster justified the domestic courts’ concern to determine
who had been responsible and that, accordingly, it had been
reasonable for them to seek to ensure that the applicant would appear
for trial by fixing a high level of bail. It considered that the
domestic authorities had demonstrated that the amount required from
the applicant by way of bail had been proportionate and that they had
taken sufficient account of his personal circumstances, and in
particular his status as an employee of the shipowner, which had
taken out insurance to cover this type of risk. The Chamber therefore
concluded that the amount of bail, although high, had not been
disproportionate in view of the legal interest being protected, the
seriousness of the offence in question and the disastrous
environmental and economic consequences of the oil spill.
Accordingly, it held that there had been no violation of Article 5 §
3 of the Convention.
B. The parties’ submissions and the third-party
interveners’ observations
1. The applicant’s submissions
The
applicant argued that, in confining their attention to the
seriousness of the offences in question and the severity of the
likely sentence, the public outcry caused by the oil spill and the
fact that he was a Greek national whose permanent residence was
abroad and who had no ties with Spain, the domestic courts had taken
insufficient account of his personal and financial situation, his
income, the fact that he had no previous convictions, his family
circumstances and his age. On the last point, he submitted that he
had been sixty-seven years old on 17 November 2002 and that the
Spanish Criminal Code exempted persons over the age of seventy from
serving custodial sentences (see paragraph 29 above).
In
the applicant’s submission, the Chamber had incorrectly stated
that bail had been paid under the terms of the contract between the
Prestige’s owner and the latter’s insurers,
despite affirming in paragraph 32 of the judgment that the London P&I
Club had put up bail as “a spontaneous, one-off humanitarian
gesture”. The applicant maintained that it was not permissible
for the domestic courts to fix bail by reference to the financial
situation of a third party in the absence of any offer from that
party. While the domestic courts may have assumed that the ship’s
owner or the insurers would put up bail, he had spent eighty-three
days in detention. Allowing the domestic courts to fix the level of
bail on the basis of the financial situation of a third party was
tantamount to rendering the Court’s previous rulings
ineffective, not to say meaningless.
Arguing
that the contractual relationship between the shipowner and the
insurers of the Prestige was governed by the London P&I
Rules (see paragraph 55 above), the applicant submitted that these
rules obliged the insurer to put up a security only if a vessel
insured by it was detained and not if a member of the crew was
arrested (Rule 20). In the latter case, the insurer could pay the
bail, but was by no means legally required to do so. Cover against
certain shipping-related risks was left to the discretion of the
insurer. The applicant referred in that regard to Rule 9.28 of the
P&I Rules (see paragraph 55 above), which the London P&I Club
had apparently agreed to apply – in view of the exceptional
nature of the situation – in order to pay the bail and secure
the applicant’s release after eighty-three days in detention.
He pointed out that, in any event, while the insurance contract had
been binding on his employer and the ship’s insurer, he had not
taken out any personal insurance with the London P&I Club, which
had no obligations towards him. In giving reasons for the level of
bail, the domestic courts had not stated that the company which
insured the applicant’s employer had been obliged to put up
bail, or that they expected it to do so. In the applicant’s
submission, the appeal courts were not required to read the decisions
of the lower courts in the light of new arguments not referred to by
the latter.
Referring
to Articles III § 4 and V § 2 of the 1992 CLC (see
paragraph 54 above), the applicant submitted that the Master and
crew could not be held civilly liable unless the damage resulted from
their personal acts or omissions, committed with intent or
recklessly.
The
applicant contended that the amount of bail had been fixed not simply
in view of his criminal responsibility, which would be engaged if he
failed to appear for trial, but also – in disregard of the
Court’s case-law – with a view to covering the
compensation due in settlement of civil claims. In referring to the
seriousness of the charges against the applicant, the domestic courts
had actually had in mind the serious consequences of the accident. In
the applicant’s view it was unacceptable, in determining the
amount of bail to be imposed on the employee of a ship’s owner,
to take into account public anger and indignation towards the
shipping companies, before it had even been established who was
responsible for the disaster.
The
applicant argued that the Chamber ruling had been based on
inappropriate considerations and on European directives which were
not in force when the accident had occurred (in breach of the
principle that the law should not have retrospective effect), and
also on reports containing purely political statements of intent
which had no legal effect whatsoever. He pointed out that Article 230
§ 1 of UNCLOS prohibited the imposition of a custodial sentence
in the circumstances of the present case, and that the case was still
at the investigation stage before the Spanish courts.
The
applicant complained of the implications of the Chamber judgment
which, in his view, called into question the principles of
presumption of innocence and non-discrimination by permitting the
authorities to fix bail solely by reference to the seriousness of the
consequences of the alleged offence, without taking into
consideration the accused’s personal circumstances. He stressed
the pernicious effects of the Chamber judgment on the shipping
industry and on any activities entailing a degree of risk, as it
allowed the authorities to detain employees for reasons linked to
their employer’s civil liability. Furthermore, the Chamber
judgment created obstacles to the free movement of services within
the European Union; the Court of Justice of the European Communities
had held that national rules on criminal procedure could constitute a
restriction on free movement. Finally, the applicant contended that
the rules in question had been applied in a discriminatory manner in
his case because of his nationality.
In
the light of these submissions, the applicant requested the Grand
Chamber to find a violation of Article 5 § 3 of the Convention.
2. The Government’s submissions
The
Government began by pointing out that the applicant had been
released. Making the point that bail had been paid only two and a
half months after the applicant had been remanded in custody, they
contended that the amount had not prevented him from paying it.
The
Government were mindful of the requirements imposed by the Court’s
case-law regarding the need to take account of the applicant’s
personal situation in fixing bail. They were aware that the aim was
to ensure that the sum in question was not used to anticipate the
sentence without the accused having benefited from the guarantees of
a fair trial and there being sufficient evidence against him. That
would be contrary, inter alia, to the right to be presumed
innocent. However, they observed that, in any event, those guarantees
could come into play only if the appearance for trial of the person
remanded in custody was assured; the investigating judge before whom
the applicant was brought had noted the significant risk that the
latter might abscond. The Government inferred from this that the
level of bail had been justified by the authorities’ wish to
achieve the primary aim of the impugned measure, namely to ensure
that the accused appeared for trial.
Contrary
to the applicant’s assertion, his personal circumstances had
been duly taken into account, as the courts had noted his foreign
nationality, his complete lack of ties in Spain and the ease with
which he could have left the country and thus evaded prosecution and
obstructed the course of justice. Added to these factors had been
objective considerations relating to the nature and seriousness of
the alleged offences, the severe penalties they carried, the criminal
and civil liability issues raised by the case, the considerable and
undeniable public outcry, the national and international
ramifications of the disaster and the exceptional scale of the
damage. It followed that the amount of bail had been fixed in a
non arbitrary manner and that sufficient reasons had been given,
in accordance with the criteria laid down by the Court in Neumeister
v. Austria (27 June 1968, Series A no. 8) and Iwańczuk
v. Poland (no. 25196/94, 15 November 2001), although the cases in
question differed from the present case in some significant respects.
As
to the nature of the alleged offences, the Government observed that
the Corunna Audiencia Provincial, in its ruling on the case,
had stated that the evidence available to it at that stage in the
proceedings suggested that the alleged offences might have been
committed intentionally (dolus eventualis). The court had made
the point that environmental offences were not fully made out until
such time as damage occurred as a result of the omissions of those
who contributed to turning a hazard into catastrophic damage by
repeatedly and persistently failing in their duty to manage the risk
factors directly under their control and responsibility, that is to
say, until the pollution of the natural resources became apparent,
rather than when the pollutant was actually discharged. Furthermore,
the offence of failure to comply with instructions, of which the
applicant stood accused on account of the difficulties he had created
by preventing the vessel from being taken in tow and hampering
efforts to prevent and minimise the effects of the oil spill, had
clearly been intentional and not the result of carelessness or
negligence.
Accordingly,
in the Government’s view, Article 230 of UNCLOS was not
applicable in the instant case, as it referred only to violations of
the laws and regulations for the prevention, reduction and control of
pollution of the marine environment committed by foreign vessels
beyond the territorial sea, for which monetary penalties only could
be imposed, and not to wilful and serious acts of pollution in the
territorial sea. UNCLOS did not provide for immunity in respect of
offences against the environment and natural resources: only monetary
penalties could be imposed for breaches of national laws and
regulations committed in the territorial sea, except in the case of
wilful and serious acts of pollution.
With
regard to the length of the likely custodial sentence, the Government
observed that offences resulting in irreversible and catastrophic
damage carried sentences of between six and nine years’
imprisonment if committed intentionally and between four and six
years if they resulted from negligence (see paragraphs 29 and 30
above). As to the applicant’s age, the exemption on
humanitarian grounds provided for by Article 92 of the Criminal Code
did not amount to immunity; exemption from serving a custodial
sentence required further conditions to be met.
The
Government maintained that the amount of compensation due in
settlement of civil claims had not been a determining factor in
fixing bail, as demonstrated by the fact that the amount of bail was
equivalent to less than 1% of the potential compensation. They were
aware that determining the amount of security by sole reference to
the losses sustained would be contrary to the Court’s case-law,
as the measure in question was intended to ensure the appearance of
the accused at trial, not to guarantee payment of the compensation
due in respect of civil claims. However, the authorities were not
prohibited from taking this factor, among others, into account in
assessing the risk of the accused’s absconding, provided that
his or her personal situation was also taken into consideration. On
the contrary, the risk of the accused’s absconding could not be
assessed “solely” by reference to the severity of the
criminal and civil penalties – although these had to be taken
into account – just as the amount of bail could not be
determined “solely” on the basis of the losses incurred.
The Court’s case-law in no way precluded account being taken of
circumstances which might have a bearing on the risk of the accused’s
absconding and on the adequacy of the sum required by way of bail.
On
this last point the Government stressed that, both in remanding the
applicant in custody and in fixing bail, the domestic courts had
taken into account his nationality, the fact that he was resident
abroad and had no ties in Spain, his professional status and the
environment in which he worked and – as specified by the Court
in Neumeister – the persons who might be able to stand
bail for him. They had also had regard to the complex legal structure
governing the activity of the ship of which he was Master and the
type of commercial activity in which he had been engaged. The fact
that bail had been paid promptly served to confirm the validity of
the criteria used to determine the amount. Furthermore, the Chamber
had been correct in finding, in paragraph 39 of its judgment, that
there had been a contractual legal relationship between the ship’s
owner and the insurer. Bail had been paid by the company which
insured the applicant’s employer, in accordance with usual
practice in the shipping industry. If the applicant was found guilty
of the charges against him, the judgment would fix the amount of
compensation for which the shipowner employing him was civilly liable
and which would ultimately be paid by the latter’s insurer.
The
Government requested the Court to find that there had been no
violation of Article 5 § 3 of the Convention.
3. Observations of the third-party interveners
The
third-party interveners’ representative observed that the
criminal liability of a ship’s Master and crew for acts giving
rise to pollution was strictly regulated by UNCLOS and MARPOL 73/78.
Referring to Article 230 of UNCLOS, he pointed out that
custodial penalties were prohibited for acts of pollution committed
beyond the territorial sea, that is to say, more than twelve miles
from the coast. As an additional safeguard against excessive action
by the coastal State, UNCLOS provided a remedy in the form of an
application for prompt release of a vessel or crew. In the three
“prompt release” (fisheries-related) cases in which it
had had jurisdiction – Camouco, Monte Confurco and
Volga – the International Tribunal for the Law of the
Sea had ordered the release of the crew.
However,
under CLC 1992 and the 1992 International Convention on the
Establishment of an International Fund for Compensation for Oil
Pollution Damage, shipowners were civilly liable for damage of this
kind, even if they were not at fault. While CLC 1992 stipulated that
shipowners must be covered for civil liability, there was no
obligation to indemnify the shipowner for the bail bond of the ship’s
Master. There was usually a discretion to provide cover in respect of
matters that did not fall squarely within any of the risks covered
but were closely linked thereto, where it was considered appropriate
in the circumstances. However, such discretion was exercised only
exceptionally and was not intended to provide cover in respect of
bail for crew.
While
civil liability insurance cover was subject to limits, the evolution
of the market had led to a 50% increase in cover provided under CLC
1992 in the aftermath of the sinking of the Erika and the
Prestige. Supplementary compensation could be paid by the
Fund, but it would be inadmissible that dissatisfaction with the
level of cover held by shipowners under the international system of
civil liability agreed by States under CLC 1992 should justify
reliance on setting high bail for seafarers in order to secure the
unsecured part of the clean-up costs.
The
third-party interveners’ representative expressed concern at
the increasing criminalisation of seafarers’ actions, and
referred in that regard to the Guidelines on fair treatment of
seafarers in the event of a maritime accident, which called on
States, inter alia, to: (a) take steps to ensure that
seafarers, once interviewed or otherwise not required for a coastal
State investigation following a maritime accident, were permitted to
re-embark or be repatriated without undue delay; (b) consider
non-custodial alternatives to pre-trial detention; and (c) make
available a system for posting a reasonable bond or other financial
security to allow for release and repatriation of detained seafarers
pending resolution of any investigatory or judicial process. He
stressed that decisions on the detention of seafarers should be taken
solely in accordance with the latter’s personal circumstances
and alleged actions and not on the basis of the possible consequences
of those actions for the environment.
C. The Court’s assessment
1. General principles
The
Court reiterates that the guarantee provided for by Article 5 §
3 of the Convention is designed to ensure not the reparation of loss
but, in particular, the appearance of the accused at the hearing. Its
amount must therefore be assessed principally “by reference to
[the accused], his assets and his relationship with the persons who
are to provide the security, in other words to the degree of
confidence that is possible that the prospect of loss of the security
or of action against the guarantors in case of his non appearance
at the trial will act as a sufficient deterrent to dispel any wish on
his part to abscond” (see Neumeister, cited above, §
14).
In
any event it is clear from the structure of Article 5 in general, and
the third paragraph in particular, that bail may only be required as
long as reasons justifying detention prevail (see, in particular,
Musuc v. Moldova, no. 42440/06, § 42, 6 November 2007,
and Aleksandr Makarov v. Russia,
no. 15217/07, § 139, 12 March 2009). If the risk of
absconding can be avoided by bail or other guarantees, the accused
must be released, bearing in mind that where a lighter sentence could
be anticipated, the reduced incentive for the accused to abscond
should be taken into account (see Vrenčev v. Serbia, no.
2361/05, § 76, 23 September 2008). The authorities must take as
much care in fixing appropriate bail as in deciding whether or not
the accused’s continued detention is indispensable (see, among
other authorities, Iwańczuk, cited above, § 66;
Bojilov v. Bulgaria, no. 45114/98, § 60, 22 December
2004; Skrobol v. Poland, no. 44165/98, § 57, 13 September
2005; Hristova v. Bulgaria, no. 60859/00, § 110, 7
December 2006; Musuc, cited above, § 42; and Georgieva
v. Bulgaria, no. 16085/02, § 30, 3 July 2008).
Furthermore,
the amount set for bail must be duly justified in the decision fixing
bail (see Georgieva, cited above, §§ 15, 30 and 31)
and must take into account the accused’s means (see Hristova,
cited above, § 111). In that connection, the domestic courts’
failure to assess the applicant’s capacity to pay the sum
required was one of the reasons why the Court found a violation in
the Toshev v. Bulgaria judgment (no. 56308/00, §§ 68
et seq., 10 August 2006).
While
the amount of the guarantee provided for by Article 5 § 3 must
be assessed principally by reference to the accused and his assets it
does not seem unreasonable, in certain circumstances, to take into
account also the amount of the loss imputed to him (see Moussa v.
France, no. 28897/95, Commission decision of 21 May 1997,
Decisions and Reports 89-B, p. 92). In the Kudła v.
Poland judgment ([GC], no. 30210/96, ECHR 2000 XI, 26
October 2000), the Court observed that the domestic court had fixed
the amount of bail by reference to the cost of the damage, the
serious nature of the offences and, above all, the risk that the
applicant would abscond (§ 47). It recognised that the risk of
his absconding “was one of the main factors that [the court]
took into account when determining the amount of bail” (ibid.,
§ 113).
2. Application of these principles to the present case
In
the instant case the applicant was deprived of his liberty for
eighty-three days and was released following the lodging of a bank
guarantee of EUR 3,000,000 corresponding to the amount set for bail.
The Court observes that Article 531 of the Spanish Code of Criminal
Procedure, as interpreted by the Constitutional Court (see paragraph
25 above), lists the main factors to be taken into consideration in
fixing bail, namely the nature of the offence, the penalty at stake,
the legal interest being protected, the social situation of the
accused and any previous convictions, and any other circumstance
which might prompt the accused to seek to evade justice. The domestic
courts based their findings on the serious nature of the offence and
the public outcry caused and on certain aspects of the applicant’s
personal situation, namely his nationality and place of permanent
residence and the fact that he had no ties in Spain. For its part,
the Constitutional Court took the view that the lower courts had
provided ample reasons justifying the amount of bail and their
refusal of the request to reduce it, on the following grounds: “the
primary objective of securing the accused’s presence at the
trial, the seriousness of the offences in question, the national and
international disaster caused by the oil spill, the fact that the
accused is a non-national and the fact that he has no ties in Spain”.
It further noted that the courts concerned had also taken into
consideration the accused’s personal and financial
circumstances and his professional environment, and that all these
circumstances taken together had led them to consider that the risk
of his absconding could only be reduced by setting such a high sum
for bail (see paragraph 25 above).
The
Court is conscious of the fact that the amount set for bail was high,
and is prepared to accept that it exceeded the applicant’s own
capacity to pay. However, it is clear from the foregoing that in
fixing the amount the domestic courts sought to take into account, in
addition to the applicant’s personal situation, the seriousness
of the offence of which he was accused and also his “professional
environment”, circumstances which, in the courts’ view,
lent the case an “exceptional” character. The Court must
therefore ascertain whether this approach was compatible with Article
5 § 3.
In
this connection the Court observes that, since the Neumeister
judgment, it has consistently held that “[the accused’s]
relationship with the persons who are to provide the security”
is one of the criteria to be used in assessing the amount of bail
(see paragraph 78 above).
As
to whether it was legitimate to take the applicant’s
professional environment into account in the present case, the Court
reiterates at the outset that the domestic courts, which are in touch
with local reality, are in principle better placed than the
international judge to assess this. In the instant case it is clear
from the case file that the domestic courts considered it essential
to ensure the applicant’s appearance for trial before the
courts hearing the case, in view of his responsibilities as the
Prestige’s Master. The seriousness of the offences
concerned, the “national and international disaster caused by
the oil spill” (see paragraph 25 above) and the “public
outcry” (see paragraphs 17, 18 and 20) were such that the
presence of the applicant constituted a “primary objective”
(see paragraph 25).
Against
this background the Court cannot overlook the growing and legitimate
concern both in Europe and internationally in relation to
environmental offences. This is demonstrated in particular by States’
powers and obligations regarding the prevention of maritime pollution
and by the unanimous determination of States and European and
international organisations to identify those responsible, ensure
that they appear for trial and, if appropriate, impose sanctions on
them (see “Relevant domestic and international law”
above). A tendency can also be observed to use criminal law as a
means of enforcing the environmental obligations imposed by European
and international law.
The
Court considers that these new realities have to be taken into
account in interpreting the requirements of Article 5 § 3 in
this regard. It takes the view that the increasingly high standard
being required in the area of the protection of human rights and
fundamental liberties correspondingly and inevitably requires greater
firmness in assessing breaches of the fundamental values of
democratic societies (see Selmouni v. France [GC], no.
25803/94, § 101, ECHR 1999 V). It cannot therefore be
ruled out that, in a situation such as that in the present case, the
professional environment which forms the setting for the activity in
question should be taken into consideration in determining the amount
of bail, in order to ensure that the measure retains its
effectiveness.
In
that connection the Court points out that the facts of the present
case – concerning marine pollution on a seldom-seen scale
causing huge environmental damage – are of an exceptional
nature and have very significant implications in terms of both
criminal and civil liability. In such circumstances it is hardly
surprising that the judicial authorities should adjust the amount
required by way of bail in line with the level of liability incurred,
so as to ensure that the persons responsible have no incentive to
evade justice and forfeit the security. In other words, the question
must be asked whether, in the context of the present case, where
large sums of money are at stake, a level of bail set solely by
reference to the applicant’s assets would have been sufficient
to ensure his attendance at the hearing, which remains the primary
purpose of bail. The Court agrees with the approach taken by the
domestic courts on this point.
The
Court further notes that, in deciding what constitutes a reasonable
bond, the International Tribunal for the Law of the Sea also takes
into account the seriousness of the alleged offences and the
penalties at stake (see paragraphs 46 and 47 above). While conscious
of the fact that the Tribunal’s jurisdiction differs from its
own, the Court nevertheless observes that the Tribunal applies
similar criteria in assessing the amount of security, and that the
fact that it has a duty not to prejudice the merits of the case does
not prevent it from making determinations bearing on the merits when
these are necessary for the assessment of a reasonable bond (see, in
particular, the ITLOS judgment of 6 August 2007 in Hoshinmaru,
§ 89, cited at paragraph 46 above).
In
the instant case it is established that bail was paid by the company
which insured the owner of the ship of which the applicant was
Master. Leaving aside the considerations – “humanitarian”,
contractual or other – which may have motivated the insurer,
and which are disputed between the parties, the very fact that
payment was made by the shipowner’s insurer would seem to
confirm that the Spanish courts, when they referred to the
applicant’s “professional environment”, were
correct in finding – implicitly – that a relationship
existed between the applicant and the persons who were to provide the
security.
The
observations of the third-party interveners’ representative
make clear that the 1992 International Convention on Civil Liability
for Oil Pollution Damage requires shipowners to take out civil
liability insurance but that there is no obligation to indemnify the
shipowner for the bail bond of a ship’s Master who has been
detained by the maritime authorities. The interveners’
representative also pointed out that the discretion exercised
exceptionally by insurers in certain circumstances did not extend to
providing cover in respect of bail for seafarers. And while the
applicant and the third-party interveners’ representative
stressed that the shipowner and the insurer had not been bound by any
obligations in the matter of bail, whether by virtue of custom and
practice or contractually, the applicant acknowledged that Rule 9.28
of the London P&I Rules had served as a legal basis for payment
(see paragraph 55 above). In any event, the Court observes that it
was indeed the insurers of the applicant’s employer, that is,
the London Steamship Owners’ Mutual Insurance Association,
which paid the security.
In
these circumstances the Court considers that the domestic courts, in
fixing the amount of bail, took sufficient account of the applicant’s
personal situation, and in particular his status as an employee of
the ship’s owner, his professional relationship with the
persons who were to provide the security, his nationality and place
of permanent residence and also his lack of ties in Spain and his
age. In view of the particular context of the case and the disastrous
environmental and economic consequences of the oil spill, the courts
were justified in taking into account the seriousness of the offences
in question and the amount of the loss imputed to the applicant.
It
follows that there has been no violation of Article 5 § 3 of the
Convention.
FOR THESE REASONS, THE COURT
Holds, by ten votes to seven, that there has been no violation
of Article 5 § 3 of the Convention.
Done in French and in English, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 28 September 2010.
Michael O’Boyle Jean-Paul Costa
Deputy
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint separate opinion of Judges
Rozakis, Bratza, Bonello, Cabral Barreto, David
Thór Björgvinsson, Nicolaou and Bianku is
annexed to this judgment.
J.-P.C.
M.O’B.
JOINT DISSENTING OPINION OF JUDGES ROZAKIS, BRATZA,
BONELLO, CABRAL BARRETO, DAVÍD THÓR BJÖRGVINSSON,
NICOLAOU AND BIANKU
1. We
are unable to agree with the majority of the Court that there has
been no violation of Article 5 § 3 of the Convention in the
present case. In our view the setting of bail by the Spanish courts
in an amount of three million euros (EUR), a sum far beyond the means
of the applicant, with the consequence that he continued to be
detained on remand for a total of eighty-three days, was in
clear violation of his rights under that Article.
We
note at the outset that, although emphasis was placed by the national
courts on the seriousness of the suspected offences, the disastrous
consequence of the oil spillage, both environmental and economic, and
the public outcry caused by the spillage, these were not factors
which of themselves were regarded as requiring the continued
detention of the applicant. As stated by the Constitutional Court,
the overriding objective was to secure the applicant’s presence
at the trial. The seriousness of the offences and of the penalty
which they carried were seen by the national courts as increasing the
risk that the applicant would abscond or not appear for trial in the
event that he were ultimately charged and thus as justifying an
exceptionally high amount of bail before he could be released. The
central question is whether the fixing of bail at this level was
based on principles which were compatible with the requirements of
Article 5.
The
general principles developed by the Court under Article 5 § 3 as
to the setting of bail are summarised in paragraphs 78 to 81 of the
judgment. Three principles appear to us to be of special importance
in the present case.
(i) As
appears from the terms of Article 5 § 3 itself, the setting of
bail as a condition of release is designed to ensure not the
reparation of any loss suffered in consequence of the suspected
offence but only the presence of the accused at trial. The sum set
cannot accordingly be fixed by reference to the amount of any loss
which might eventually be imputable to the accused or his employers
but must be assessed principally by reference to him, his assets and
his relationship with those persons, if any, who offer themselves as
sureties to guarantee his appearance. Where no such sureties are
offered, it is the accused person and his assets which must be the
principal reference point for the setting of bail (see Bonnechaux
v. Switzerland, no. 8224/78, Commission report of 5 December
1979, DR 18, p. 144, § 73, and Moussa v. France, no.
28897/95, Commission decision of 21 May 1997, DR 89-B, p. 92).
(ii) There
is an obligation on an accused applicant to furnish to the national
authorities sufficient information as to his assets. There is also an
obligation on those authorities, including national courts, to
examine the information that they have as to the resources of the
person concerned before setting bail. The authorities must take as
much care in fixing appropriate bail as in deciding whether or not
continued detention is indispensable (see Toshev v. Bulgaria,
no. 56308/00, 10 August 2006). In certain special circumstances, it
may be legitimate to take into account also the extent of the losses
imputed to the accused in fixing a higher level of bail. However,
such cases have in general concerned offences involving fraud or the
misappropriation of funds, where there is evidence to suggest that
the accused may have substantial undisclosed assets (see, for
example, Moussa, cited above, and Skrobol v. Poland,
no. 44165/98, 13 September 2005).
(iii) Domestic
courts must adduce sufficient arguments to justify the amount of bail
fixed. The seriousness of the charge not only cannot be the sole
factor justifying the size of the bail; it cannot be the decisive
factor (see Hristova v. Bulgaria, no. 60859/00, 7 December
2006). Nor can the danger of absconding be evaluated solely on the
basis of considerations relating to the gravity of the penalty likely
to be imposed. As the Court observed in the Neumeister case
(27 June 1968, Series A no. 8, § 10), other factors must also be
taken into account, including “the character of the person
involved, his morals, his home, his occupation, his assets, his
family ties and all kinds of links with the country in which he is
being prosecuted”. Regard should also be had to the use of
other preventative measures, alone or in conjunction with bail, to
reduce the risk of absconding and ensuring the accused’s
attendance at trial.
Although
in setting and upholding the amount of bail no assessment appears to
have been made by the Spanish courts of the applicant’s
personal assets, the sum of EUR 3,000,000 fixed by the Corunna No. 4
investigating judge self-evidently bore no relation to the personal
means of the applicant. At the time of fixing bail, no sureties had
offered to post bail on his behalf and there is no suggestion that,
as the Master of a cargo ship, the applicant himself was in a
position to find sureties to meet such a sum. Further, the
circumstances of the case were not, in our view, such as to justify
the national courts in taking account of the losses resulting from
the acts imputed to the applicant: unlike the cases mentioned above,
the offences of which the applicant was suspected did not involve
fraud or imputations of personal and unlawful gains.
It
is conceded by the majority of the Court that the amount set as bail
was “high” and that it exceeded the applicant’s own
capacity to pay. In finding the sum, nevertheless, to be compatible
with Article 5, the majority place emphasis on two features of the
case which in their view entitled the domestic courts to conclude
that it was of an “exceptional character” – the
applicant’s relationship to the persons who eventually provided
the guarantee for his bail, namely the owners and insurers of the
ship of which he was Master, and the gravity of the offences of which
the applicant was suspected.
We
do not consider that either of these features was such as to justify
the bail demanded by the Spanish courts in terms of Article 5 §
3 of the Convention.
As to
the former, we note that, in fixing the bail, the investigating judge
made no reference to the owners of the Prestige or to the
insurers of the ship or to any obligation on the part of either to
meet any bail which might be set. Nor was any such reference made by
the Corunna No. 1 investigating judge in the applicant’s two
requests for release or by the Audiencia Provincial on
his appeal. The only suggestion that the financial support of the
owners or insurers of the vessel played a part in the decisions of
the courts in setting or upholding the amount of the bail is in the
Delphic statement of the Constitutional Court that the applicant’s
“professional environment” had been taken into account, a
phrase which is interpreted in the judgment as embracing the
applicant’s relationship with the shipowners. However, what is
clear is that at no stage prior to the applicant’s release was
any inquiry made by the national courts as to the legal obligations,
if any, owed by the owners to post bail or as to the relevant
insurance arrangements which existed between the owners and their
insurers. In particular, there appears to have been no investigation
of the question whether the insurers had any responsibility to
indemnify the shipowners in respect of the bail bond of a ship’s
Master who had been detained by the maritime authorities in the
circumstances of the present case. Indeed, according to the
undisputed evidence of the third-party interveners, there was no such
legal obligation under the 1992 Convention and neither the shipowners
nor their insurers had any legal responsibility in the matter of
bail, whether by custom, practice or contractual arrangement.
While
acknowledging this to be the case, the majority emphasise that the
very fact that payment was made by the shipowners’ insurers
“would seem to confirm that the Spanish courts ... were correct
in finding – implicitly – that a relationship existed
between the applicant and the persons who were to provide the
security” (paragraph 90 of the judgment) and that “in any
event ... it was indeed the insurers of the applicant’s
employer, that is, the London Steamship Owners’ Mutual
Insurance Association, which paid the security” (paragraph 91).
The fact that the applicant’s bail was eventually posted by the
insurers is, in our view, of limited importance in terms of Article 5
§ 3 of the Convention. Of more significance is the fact that, in
setting bail, the national courts based themselves on what was, at
best, an unsupported assumption that the shipowners or their insurers
would feel morally obliged to come to the applicant’s rescue by
posting bail rather than allowing him to languish in detention on
remand. Moreover, by the time they did so, the applicant had already
spent two and a half months in custody. This approach to the fixing
of bail was not, in our view, consistent with the responsibilities
required of national courts by that provision of the Convention.
As
to the gravity of the offence of which the applicant was suspected,
we fully share the view of the majority as to the growing and
legitimate concerns, in Europe and more broadly, in relation to
environmental damage and the increasing tendency to use the criminal
law as a means of enforcing the environmental obligations imposed
under international law. However, even if, as the majority argue,
these new realities have to be taken into account in interpreting the
requirements of Article 5 § 3, the seriousness of the offence of
which a person is suspected cannot be the decisive factor justifying
the size of the bail; still less can the gravity of the offence or of
the damage allegedly caused thereby, whether environmental or
otherwise, justify the setting of bail at an exorbitant level which
renders illusory the applicant’s ability to secure his release
from custody. Even accepting, as the judgment asserts, that it was
“hardly surprising” that the judicial authorities should
adjust the amount of the bail in line with the level of civil
liability incurred, “so as to ensure that the persons
responsible [had] no incentive to evade justice and forfeit the
security”, this was not in our view compatible with the
requirements of Article 5 § 3, particularly in a case where the
legal relationship of those persons had not even been examined by the
courts themselves. Nor was it in our view consistent with the
principles governing that provision to fix bail at a level far beyond
the reach of an individual accused by reference to the strength of
the public outcry over the damage caused by the acts or omissions
imputed to him.
The
majority accept the view of the domestic courts that, in the context
of the present case, where large sums of money were at stake, a level
of bail set solely by reference to the applicant’s assets would
not have been sufficient to ensure his attendance at the hearing
(paragraph 88). We observe, however, that the applicant was prepared
to put up bail of EUR 60,000, a substantial sum for an
individual in the position of the present applicant. Moreover, a
striking feature of the present case is that the national courts do
not appear to have taken account, when setting and upholding the
bail, of the applicant’s personal circumstances other than his
Greek nationality and his lack of ties to Spain. There is no
reference to his assets, the fact that the applicant was 67 years old
and of good character, the fact that he was a citizen of another
Member State of the European Union or his family circumstances, all
of which had relevance to the risk that he might abscond. Nor was any
account apparently taken of the penalty which might be imposed on a
person of the age of the applicant, who was at least unlikely to be
subject to a custodial sentence if tried and convicted of the
offences of which he was suspected. Of equal importance is the fact
that no consideration appears to have been given at the time to
combining bail with other measures designed to secure the applicant’s
attendance at trial, such as those which were imposed when he was
eventually released (paragraph 21) and when the applicant was
subsequently allowed to return to Greece (paragraph 26).
The majority conclude by stating that sufficient account was taken by
the Spanish courts of the applicant’s personal situation and
that, in view of the disastrous environmental and economic
consequences of the oil spill, the courts were justified in taking
into account the seriousness of the offences in question and the
amount of the loss imputed to the applicant. We disagree. In our
view, the approach of the Spanish courts in fixing the applicant’s
bail was not compatible with the principles established by the Court
under Article 5 § 3 of the Convention, the fundamental purpose
of which is to ensure that no one is arbitrarily deprived of his
liberty.
