Information Note on the Court’s case-law No. 133
August-September 2010
Mangouras v. Spain [GC] - 12050/04
Judgment 28.9.2010 [GC]
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 master in maritime pollution case: no violation
Facts – The applicant, a Greek national, was the Master of the ship Prestige, which in 2002, while sailing off the Spanish coast, spilled the 70,000 tonnes of fuel oil it was carrying into the Atlantic Ocean after its hull sprang a leak. The spillage of the cargo caused an ecological disaster 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 the possibility of release on bail of EUR 3,000,000. The judge stressed the applicant’s conduct, which 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 view, the seriousness of the alleged offences 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 applicant requested his release and, in the alternative, the reduction of bail to EUR 60,000 to reflect his personal situation. The investigating judge in question refused the request on the ground that the seriousness of the alleged offences justified the applicant’s continued pre-trial detention. As to the amount set for bail, he reiterated the previous arguments and added that the applicant’s appearance at trial was vital in order to elucidate the sequence of events following the leak in the vessel’s hull. The applicant lodged an appeal and an application to have the ruling set aside, both of which were dismissed. The investigating judge recorded the lodging of a bank guarantee in an amount corresponding to the sum set for bail, whereupon he ordered the applicant’s provisional release, subject to certain conditions. The amparo appeal which the applicant lodged with the Constitutional Court, complaining of the amount set for bail, was declared inadmissible.
The Spanish authorities subsequently authorised the applicant’s return to his country of origin, where he is now living, on condition that the Greek authorities enforced compliance with the periodic controls to which the applicant had been subject in Spain. As a result, he must report every two weeks to a police station on the island where he was born or in Athens. The criminal proceedings on the merits are still pending.
In a judgment of 8 January 2009 a Chamber of the Court held unanimously that there had been no violation of Article 5 § 3 (see Information Note no. 115).
Law – Article 5 § 3: The Court reiterated that bail could only be required as long as reasons justifying detention prevailed, and that the authorities had to take as much care in fixing appropriate bail as in deciding whether or not the accused’s continued detention was indispensable. Furthermore, while the amount of bail had to be assessed principally by reference to the accused and his assets it was not unreasonable, in certain circumstances, to take into account also the amount of the loss imputed to him. The applicant had been deprived of his liberty for 83 days and had been released following the lodging of a bank guarantee of EUR 3,000,000. While the sum set for bail most likely exceeded the applicant’s own capacity to pay, the domestic courts had 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”. The Court therefore had to ascertain whether that approach was compatible with Article 5 § 3.
The Court was of the view that new realities had to be taken into account in interpreting the requirements of Article 5 § 3, namely the growing and legitimate concern both in Europe and internationally in relation to environmental offences, and the trend towards using criminal law as a means of enforcing the environmental obligations imposed by European and international law. As the increasingly high standard being required in the area of the protection of human rights correspondingly and inevitably required greater firmness in assessing breaches of the fundamental values of democratic societies, it could not be ruled out that the professional environment which formed 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 was effective. Given the exceptional nature of the present case and the huge environmental damage caused by marine pollution on a seldom‑seen scale, it was hardly surprising that the judicial authorities should have adjusted the amount required by way of bail in line with the level of liability incurred, so as to ensure that those responsible had no incentive to evade justice and forfeit the security. It was by no means certain that a level of bail set solely by reference to the applicant’s assets would have been sufficient to ensure his attendance at the hearing. In addition, the very fact that payment had been made by the shipowner’s insurer appeared to confirm that the Spanish courts, when they had referred to the applicant’s “professional environment”, had been correct in finding – implicitly – that a relationship existed between the applicant and the persons who were to provide the security.
The Spanish courts had therefore taken 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 authorities had been justified in taking into account the seriousness of the offences in question and the amount of the loss imputed to the applicant.
Conclusion: no violation (by ten votes to seven).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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