CEDH · CASELAW;CLIN;ENG — 8 janvier 2009

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Spain - 12050/04 Judgment 8.1.2009 [Section III] Article 5 Article 5-3 Guarantees to appear for trial Release pending trial Level of recognizance required to secure release on bail of a ship's captain in maritime pollution case: no violation [This case was referred to the Grand Chamber on 5 June 2009] Facts : The applicant was the captain of a vessel, the Prestige, which while sailing off the Spanish coast in November 2002 released into the Atlantic Ocean 70,000 tonnes of fuel oil when the hull sprang a leak. The spillage caused an environmental catastrophe whose effects on marine flora and fauna lasted for several months and spread as far as the French coast. A criminal investigation was opened and the investigating judge remanded the applicant in custody with bail fixed at EUR 3,000,000. The investigating judge noted that the applicant may have committed criminal offences through the damage the ship had caused to natural resources and the environment and by failing to obey instructions from the port authorities. In the investigating judge’s opinion, the gravity of the charges and the applicant’s foreign nationality and lack of any particular connection with Spain justified bail being fixed in such a large amount. The applicant applied for release and, in the alternative, for a reduction in the amount of bail. The investigating judge dismissed that application on the ground that his continued detention was justified by the gravity of the charges. With regard to the level of bail, the judge reiterated the reasons that had been given previously and stated that the applicant’s attendance at the trial was essential in order to establish the sequence of events after the leak appeared in the ship’s hull. An application to have that decision set aside and an appeal by the applicant were dismissed. The investigating judge subsequently ordered the applicant’s release on bail subject to certain conditions following the deposit of the bank guarantee in the requisite amount. An amparo appeal by the applicant to the Constitutional Court contesting the level at which bail had been fixed was declared inadmissible. The Spanish authorities later authorised the applicant’s return to his country of origin, where he is now living, on condition that the Greek authorities ensured that he was subject to the same periodic supervision as in Spain. That meant his reporting every two weeks to the police station on the island where he was born, or in Athens. The criminal proceedings against him are still pending. Law : The applicant had been deprived of his liberty for 83 days and had been released against the provision of a bank guarantee for EUR 3,000,000, that being the amount of bail demanded. The Court accepted that the level fixed for bail was high, but noted that it had been paid by the insurance company acting for the owner of the vessel – who was also the applicant’s employer – under an insurance policy covering civil liability for damage arising from pollution caused by the ship, and thus in accordance with the contractual legal relation between the owner and the insurers. After payment of the sum concerned the applicant had returned to Greece, where he reported regularly to the police. The main purpose for which bail was fixed – to ensure his attendance at the trial – therefore continued to subsist. In these circumstances, the Court could not disregard the growing and legitimate concern, both in Europe and internationally, about environmental offences. It noted in that connection the States’ powers and obligations regarding the prevention of marine pollution and the unanimous determination among States and European and international organisations to identify those responsible and to ensure that they stood trial and were punished. The special nature of offences committed in the context of the “hierarchy of responsibilities” that was specific to the law of the sea and, in particular, to cases involving damage to the maritime environment, had to be taken into account and distinguished the applicant’s case from other length-of-pre-trial detention cases. The seriousness of the case had justified the Spanish courts’ concern to allocate responsibility for what was a natural catastrophe, and they had accordingly acted reasonably in seeking to ensure the applicant’s attendance at the trial by fixing a high level of bail. Consequently, the national authorities had sufficiently demonstrated that the level of bail the applicant had been required to put up was proportionate and had sufficiently taken into account his personal circumstances, in particular the fact that he was an employee of the vessel’s owner which, in turn, was insured against this type of risk. The amount of bail demanded, though high, had not been disproportionate, regard being had to the legal interest being protected, the seriousness of the offence and the catastrophic consequences, both environmental and economic, caused by the spillage of the ship’s cargo. Conclusion : no violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes