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, 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).

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.

Luis López Guerra, the judge elected in respect of Spain, withdrew from sitting in the case. The Government accordingly appointed 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 and 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, Ms 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 3,000,000 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 and 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 and 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 (“the 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 [c]ourt 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.