Oct 172010
 

imagePrestige appears to be something that the European Court of Human Rights, ECHR, has a problem earning. Its evident support for Spanish practices in the harassment of seafarers, in particular Captain Apostolos Mangouras of Prestige ill-fame is sufficiently irrational for the International and European Transport Workers Federations to send off a broadside at the weekend calling the ECHr’s decision”deeply flawed”.

In 2002, as Mangouras fought bravely to save his ship from disaster, French and Spanish authorities decided that it was better for the ship to break in two in rough weather and pollute their beaches that allow the vessel a safe haven. It was, at the very least, a decision of outrageous inhumanity. Spain got its polluted beaches, an inevitable and foreseeable result of its decision, and promptly arrested Mangouras.

Mangouras, now well into his late 60s, has yet to be tied before Spain’s criminal courts but was only released from detention in return for a blazingly irrational $4m bail and house arrest in Greece.

At least they stopped short of having him renditioned to Quantanamo Bay.

The ITF/ETC announcement captured some of the Kafka-esque flavour of Captain Mangouras’s situation:

Following their own legal analysis, the ITF and ETF have described the European Court of Human Rights’ decision in the case of Mangouras vs Spain as ‘deeply flawed’. The organisations will now be making their objections known to the appropriate European institutions. According to the ITF/ETF:

• The judgement is deeply flawed and does not reflect well on the reputation of the European Court of Human Rights.

• The Grand Chamber has decided that it would be compatible with the European Convention on Human Rights (ECHR) for a national court to make two assumptions when fixing bail conditions in marine pollution cases. Firstly, that an employee’s attendance at trial can only be assured if the employer or its insurers put a large enough sum of their own money at risk. Implicit in this assumption is that the employer would otherwise make no effort or would actively encourage or incentivise non-attendance at trial. The second permitted assumption is that the employer or its insurers, in the absence of any legal obligation to do so, would feel morally obliged to come to the employee’s rescue.

• Both of these assumptions mean that if bail is set beyond what the seafarer can afford, and there is no clear obligation on the shipowner or insurer to stand surety, then a game of bluff is legally sanctioned. Can the shipowner be made to feel a moral obligation to help or not? If the shipowner/insurer as a humanitarian gesture eventually offers surety then any period of detention for the seafarer whilst their bluff is being called is deemed compatible with the seafarer’s human rights. On the other hand if their bluff is not called and the shipowner walks away, it is inconceivable that it would then be compatible with the seafarer’s human rights to keep him/her in detention for the many years it would take to prepare for trial. How long can a seafarer be detained in this game of bluff? The proposition is quite illogical and for this reason the judgement is deeply flawed.

• The judgement can be criticised at a fundamental level. The European Court of Human Rights – whose responsibility it is to maintain high standards in the area of the protection of human rights and fundamental liberties – has badly let down seafarers. In marine pollution cases it has permitted them to be used as hostages in a game of bluff to secure on either a legal or moral basis the involvement of shipowners or their insurers in ensuring witnesses attend trial.

• The judgement leaves it open to Captain Mangouras’s lawyers to explore the possibility of a complaint to the UN Human Rights Committee. The Committee has dealt extensively with pre-trial detention issues under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights 1966 (CCPR). The CCPR, which Spain signed in 1976 and ratified in 1977, has a complaint procedure that would be open to the Master now that he has exhausted all domestic remedies.

• It is eight years since the arrest of Captain Mangouras and criminal proceedings have yet to begin. If the P&I Club had not volunteered surety he could potentially still be in prison for an offence that, given his age, is unlikely to carry a custodial sentence. It is difficult to imagine anything less fair.

• The joint dissenting opinion of the seven judges of the Court is an admirable summary of what is wrong with the judgement.

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