European Court of Human Rights Goes With the Times: Mangouras v. Spain
Earlier this week, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Mangouras v. Spain. The case concerns the environmental disaster caused when the oil tanker Prestige sank in front of the Galician coast in 2002. Following the disaster, the Greek captain of the ship was detained in Spain. His bail was set at 3 million euros and he was only released after 83 days, when the ship owner’s insurers posted bail. The captain complained about what he considered to be an excessive bail and his case eventually reached Strasbourg, where the Chamber held that art. 5 of the ECHR had not been breached (see Mangouras v. Spain, 8 January 2009). The Grand Chamber has now endorsed that ruling, also finding that under the circumstances the setting of bail of 3 million euros was not exsessive.
The majority of the Grand Chamber held that 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. Most interestingly, the majority held that new realities had to be taken into consideration 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 tendency to use criminal law as a means of enforcing the environmental obligations imposed by European and international law. Consequently, the majority found that given the exceptional nature of the applicant’s case and the huge environmental damage caused by the marine pollution, 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 not 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 view of the particular context of the case and the disastrous environmental and economic consequences, the Grand Chamber ruled that the domestic 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. By ten votes to seven, the Court held that art. 5 § 3 had not been breached in the instant case.
The minority dissenters did not agree with the findings of the Court. They were of the opinion that the setting of bail by the Spanish courts in an amount of three million euros, 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 Article 5. Regarding the new realities referred to by the majority, the dissenters stated that even if 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. In this context, the dissenters specifically observe that the applicant was prepared to put up bail of EUR 60,000, a substantial sum for an individual in his position. Moreover, the dissenters continued, a striking feature of the present case is that the national courts do not appear to have taken account 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. Finally, in referring to the possibility of imposing less restrictive means, the dissenters find it of equal importance 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.
The case of Mangouras shows that the Court is sensitive to the enormous damage caused by man-made environmental disasters and to the need to ensure that those responsible for such disasters do not escape justice. However, along with the minority one could question whether the majority’s findings do not go against the Court’s own established principle that the nature of the offence alone cannot be the desicive factor in deciding on the modalities of and/or continuation of detention of a suspect. Regarding the risk of absconding, one could also question whether less restrictive means were not available to ensure the applicant’s presence at the trial. It does not appear from the facts of the case that the applicant posed a specific risk of fleeing, other than the fact that he was a Greek citizen, which in itself should not be sufficient to determine the existence of such a specific risk. On the other hand, this is clearly a difficult matter of public concern. Oil (transport) companies, as the recent disaster in the Mexican Gulf has reminded us of, do not always play by the rules of the game and sometimes take unnecessary risks with immense consequences for the environment, causing enormous amounts of damage to both humans and animals. Naturally, the people responsible for such disasters should not be allowed to escape justice and one can certainly sympathise with the position of the Spanish government and the majority of the Grand Chamber that in such special circumstances, new realities justify exceptional measures.