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European Court of Human Rights Rules against Captain Mangouras

1 October, 2010

Captain Apostolos Ioannis Mangouras, the Greek master of the ill-fated PRESTIGE has had the case he filed against Spain at the European Court of Human Rights (ECHR) dismissed.

It may be recalled that Prestige developed a structural failure in the Atlantic Ocean off the Spanish coast and ultimately sank and some 70,000 tonnes of fuel oil escaped into the sea resulting in what the court described as an ecological disaster. Spain conducted a criminal investigation into the incident that resulted in Captain Mangouras being held for a period of 83 days. He gained a provisional release when the vessel owner’s insurers put up bail set three million euros. Following this Captain Mangouras secured his return to his home in Greece under the condition that he reported to a police station while the criminal proceedings that are still pending are progressed.

Captain Mangouras filed his application with the ECHR on 25 March 2004 that under his right to liberty and security (Article 5 § 3 of the European Convention on Human Rights), the amount of bail that had been set for his liberty was excessive and had been set without taking into account his personal circumstances. On 8 January 2009, the Court unanimously held that this had not been any violation of related to Article 5 § 3. On 5 June 2009, the application went to the Grand Chamber at the applicant’s request that conducted a hearing on 23 September 2009 with 17 sitting judges.

On 28 September 2010, the Grand Chamber handed down its decision. It ruled that under Article 5 § 3 bails could only be required so long as there were reasons to justify detention. Furthermore, that due care was taken by the authorities in setting the amount and that while the amount set had to take into account his personal circumstances, it was not unreasonable to take into account the amount of loss caused by him.

The Grand Chamber considered that in view of the growing concern worldwide in relation to environmental offences and the tendency to use criminal law as an enforcement tool and that increasingly high standards required for human rights protection required a corresponding increase in firmness in assessing breaches of the fundamental values of democratic societies. Thus, the professional environment that created the basis of the matter was permissible taking into consideration in determining the amount of bail in order to make sure that the measure was effective.

It was hardly surprising therefore, that given the exceptional nature of Captain Mangouras’s case and the huge environmental impact that it created that the competent authorities set the bail at level in accordance with the liability incurred to ensure that those responsible had no incentive to evade justice. It was unsure that a level of bail based solely on the assets of Captain Mangouras would have been sufficient to ensure his presence during the hearing.

It held further that the fact that the ship owner’s insurer had paid the bail was indicative that the Spanish courts had been correct that a relationship existed between Captain Mangouras and those who provided the security. Therefore in the opinion of the Grand Chamber, the Spanish courts had taken sufficient account of the personal situation of Captain Mangouras and in particular his status as an employee of the vessel’s owner, his personal relationship with those who put up the bail, his nationality and place of residence, his lack of ties to Spain and his age. Thus in view of the circumstances of the case and the disastrous environmental and economic consequences of it the action of the Spanish authorities were justifiable, so said ten of the seventeen learned men as opposed to the seven of their peers who held a joint dissenting opinion.

In the YEAR OF THE SEAFARER, it therefore seems that law of, and opinions in, the land wherever a seafarer may find themselves are truly stacked very high against them.

This decision, in the opinion of many, will be but yet another nail in coffin of the professional environment in which the vast majority of seafarers conduct themselves. It will doubtless seriously affect the free choice of today’s youth in choosing an otherwise fine career at sea.

Jim Nicoll.

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