EHRM, 28-09-2010, nr. 12050/04

In 1998 the Council of Europe opened for signature the Convention on the Protection of the Environment through Criminal Law (ETS No. 172). To date, however, only thirteen States have signed the Convention and Estonia is the only country to have ratified it. The text includes the following provisions:

In its report on sea pollution of 30 March 2005, the Committee on the Environment, Agriculture and Local and Regional Affairs of the Parliamentary Assembly of the Council of Europe stated as follows:

The issue of environmental crime has also been debated for many years within the European Union (‘the EU’).

In its judgment, the Chamber referred to Directive 2005/35/EC on ship-source pollution, which makes ship-source discharges in breach of Community law a criminal offence. The Directive further requires that both criminal and administrative penalties be imposed if the persons concerned are found to have committed or participated in the act with intent or as a result of negligent behaviour. The Directive, adopted in response to the sinking of the Erika and of the Prestige, specifically provides that the Member States must implement it by 1 March 2007. It was therefore not intended to apply to events having occurred prior to that date.

In any event, Directive 2005/35/EC applies to discharges occurring, inter alia, in the exclusive economic zone or equivalent zone of a Member State, from any ship with the exception of any warship, naval auxiliary or other ship owned or operated by a State and used at the material time only on government non-commercial service. The Member States must take the necessary measures to ensure that infringements are subject to effective, proportionate and dissuasive penalties, which may include criminal or administrative penalties.

In its judgment of 3 June 2008 in Case C-308/06, the Court of Justice of the European Communities (‘the ECJ’), having been called upon to examine a challenge to the validity of Directive 2005/35/EC, found that the concept of ‘serious negligence’ provided for in many national legal systems could only refer to a patent breach of a duty of care (paragraph 76 of the judgment). The ECJ further held that ‘serious negligence’ within the meaning of the Directive should be understood as entailing an unintentional act or omission by which the person responsible committed a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge, abilities and individual situation (paragraph 77).

In the wake of the ECJ judgments of 13 September 2005 and 23 October 2007, which quashed respectively Council Framework Decision 2003/80/JHA of 27 January 2003 and Framework Decision 2005/667/JHA, adopted by the Council on 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution and to complement Directive 2005/35/EC (referred to in the Chamber judgment), the Commission put forward a proposal for a Directive on the protection of the environment through criminal law. The EU legislative process culminated with the adoption of Directive 2008/99/EC. Point 3 of the preamble to the Directive states that the availability of criminal penalties demonstrates social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law. It also makes an explicit link between the need for criminal penalties and past experience in the field of environmental protection.

The Directive in question requires Member States to treat as criminal offences certain activities that breach EU environmental legislation, including:

Member States are required to subject these offences to effective, proportionate and dissuasive criminal penalties and to ensure that companies can be held liable for offences carried out by individuals on their behalf.

For its part, Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage is aimed at establishing a framework of environmental liability based on the ‘polluter pays’ principle, with a view to preventing and remedying environmental damage.

The relevant articles of this Convention, which was ratified by Spain on 15 January 1997, read as follows:

With regard to detention of seafarers and their release, UNCLOS provides:

The provisions concerning detention and release of vessels and crews have been interpreted by the International Tribunal for the Law of the Sea (‘the Tribunal’). In doing so, the Tribunal has laid down a number of criteria in order to determine what constitutes a reasonable bond within the meaning of Article 73 of UNCLOS read in conjunction with Article 292 of that Convention. Hence, it is interesting to examine the approach taken by the Tribunal in cases relating to the detention of a foreign national by the coastal State and the fixing of the amount of bail. However, it should be borne in mind, firstly, that the Tribunal, unlike the Court, is tasked with striking a balance between the competing interests of two States rather than the interests of an individual and those of a State. Secondly, the issues brought before the Tribunal concern the detention and release of both crews and vessels. Thirdly, unlike the instant case, which is about an environmental disaster, the vast majority of cases before the Tribunal concern fisheries-related violations. In its judgment of 6 August 2007 in Hoshinmaru (Japan v. the Russian Federation), the Tribunal summarised the principles it applies in deciding what constitutes a reasonable bond. The relevant extracts read as follows:

It is clear from the foregoing that, in assessing the reasonableness of the bond, the Tribunal takes three factors into consideration:

In doing so, the Tribunal is mindful of its duty not to prejudice the merits of the case, which are decided domestically. However, the Tribunal considers that it is not prevented from making determinations bearing on the merits when these are necessary for the assessment of a reasonable bond.

The Baltic and International Maritime Council (‘BIMCO’) is an independent shipping association with a membership composed of shipowners, managers, brokers, agents and many other stakeholders with vested interests in the shipping industry. BIMCO is one of the third-party interveners in the present case. On 23 March 2009 BIMCO published a report on the treatment of seafarers which is interesting in several respects.

Firstly, the report identifies fourteen cases where sanctions were taken against the seafarers involved before any deliberate act or negligence had been admitted or proven in court. The period examined runs for eleven years from 1996 until 2007 and the cases dealt with — which include the Mangouras (or Prestige) case — involve twelve coastal States. The report concludes that:

Secondly, the report examines a range of instruments in connection with the treatment of seafarers, including international conventions, the Universal Declaration of Human Rights and a number of regional and national instruments. In the last category, particular attention is given to the European Union legal framework and to the law in France, the United States of America, Canada and the United Kingdom. In its conclusions, BIMCO observes that the test generally applied in those instruments is gross negligence, with punishment ranging from fines to imprisonment.

Finally, this report was examined by the Legal Committee of the International Maritime Organization (IMO) at its 95th session from 30 March to 3 April 2009. As regards the fair treatment of seafarers, the minutes of the Legal Committee record that:

The Guidelines on fair treatment of seafarers are attached to the observations of the third-party interveners in the present case.

This Convention governs the liability of shipowners for oil pollution damage. It sets up a system of strict liability for shipowners and a system of compulsory liability insurance. The shipowner is normally entitled to limit his liability to an amount which is linked to the tonnage of his ship.

The Protection and Indemnity Clubs were set up by shipowners themselves to provide cover against various risks including those arising out of pollution caused by their vessels. They are governed by general conditions (the London P&I Rules), the relevant parts of which read as follows:

The applicant argued that, in confining their attention to the seriousness of the offences in question and the severity of the likely sentence, the public outcry caused by the oil spill and the fact that he was a Greek national whose permanent residence was abroad and who had no ties with Spain, the domestic courts had taken insufficient account of his personal and financial situation, his income, the fact that he had no previous convictions, his family circumstances and his age. On the last point, he submitted that he had been sixty-seven years old on 17 November 2002 and that the Spanish Criminal Code exempted persons over the age of seventy from serving custodial sentences (see paragraph 29 above).

In the applicant's submission, the Chamber had incorrectly stated that bail had been paid under the terms of the contract between the Prestige's owner and the latter's insurers, despite affirming in paragraph 32 of the judgment that the London P&I Club had put up bail as ‘a spontaneous, one-off humanitarian gesture’. The applicant maintained that it was not permissible for the domestic courts to fix bail by reference to the financial situation of a third party in the absence of any offer from that party. While the domestic courts may have assumed that the ship's owner or the insurers would put up bail, he had spent eighty-three days in detention. Allowing the domestic courts to fix the level of bail on the basis of the financial situation of a third party was tantamount to rendering the Court's previous rulings ineffective, not to say meaningless.

Arguing that the contractual relationship between the shipowner and the insurers of the Prestige was governed by the London P&I Rules (see paragraph 55 above), the applicant submitted that these rules obliged the insurer to put up a security only if a vessel insured by it was detained and not if a member of the crew was arrested (Rule 20). In the latter case, the insurer could pay the bail, but was by no means legally required to do so. Cover against certain shipping-related risks was left to the discretion of the insurer. The applicant referred in that regard to Rule 9.28 of the P&I Rules (see paragraph 55 above), which the London P&I Club had apparently agreed to apply — in view of the exceptional nature of the situation — in order to pay the bail and secure the applicant's release after eighty-three days in detention. He pointed out that, in any event, while the insurance contract had been binding on his employer and the ship's insurer, he had not taken out any personal insurance with the London P&I Club, which had no obligations towards him. In giving reasons for the level of bail, the domestic courts had not stated that the company which insured the applicant's employer had been obliged to put up bail, or that they expected it to do so. In the applicant's submission, the appeal courts were not required to read the decisions of the lower courts in the light of new arguments not referred to by the latter.

Referring to Articles III § 4 and V § 2 of the 1992 CLC (see paragraph 54 above), the applicant submitted that the Master and crew could not be held civilly liable unless the damage resulted from their personal acts or omissions, committed with intent or recklessly.

The applicant contended that the amount of bail had been fixed not simply in view of his criminal responsibility, which would be engaged if he failed to appear for trial, but also — in disregard of the Court's case-law — with a view to covering the compensation due in settlement of civil claims. In referring to the seriousness of the charges against the applicant, the domestic courts had actually had in mind the serious consequences of the accident. In the applicant's view it was unacceptable, in determining the amount of bail to be imposed on the employee of a ship's owner, to take into account public anger and indignation towards the shipping companies, before it had even been established who was responsible for the disaster.

The applicant argued that the Chamber ruling had been based on inappropriate considerations and on European directives which were not in force when the accident had occurred (in breach of the principle that the law should not have retrospective effect), and also on reports containing purely political statements of intent which had no legal effect whatsoever. He pointed out that Article 230 § 1 of UNCLOS prohibited the imposition of a custodial sentence in the circumstances of the present case, and that the case was still at the investigation stage before the Spanish courts.

The applicant complained of the implications of the Chamber judgment which, in his view, called into question the principles of presumption of innocence and non-discrimination by permitting the authorities to fix bail solely by reference to the seriousness of the consequences of the alleged offence, without taking into consideration the accused's personal circumstances. He stressed the pernicious effects of the Chamber judgment on the shipping industry and on any activities entailing a degree of risk, as it allowed the authorities to detain employees for reasons linked to their employer's civil liability. Furthermore, the Chamber judgment created obstacles to the free movement of services within the European Union; the Court of Justice of the European Communities had held that national rules on criminal procedure could constitute a restriction on free movement. Finally, the applicant contended that the rules in question had been applied in a discriminatory manner in his case because of his nationality.

In the light of these submissions, the applicant requested the Grand Chamber to find a violation of Article 5 § 3 of the Convention.

The Government began by pointing out that the applicant had been released. Making the point that bail had been paid only two and a half months after the applicant had been remanded in custody, they contended that the amount had not prevented him from paying it.

The Government were mindful of the requirements imposed by the Court's case-law regarding the need to take account of the applicant's personal situation in fixing bail. They were aware that the aim was to ensure that the sum in question was not used to anticipate the sentence without the accused having benefited from the guarantees of a fair trial and there being sufficient evidence against him. That would be contrary, inter alia, to the right to be presumed innocent. However, they observed that, in any event, those guarantees could come into play only if the appearance for trial of the person remanded in custody was assured; the investigating judge before whom the applicant was brought had noted the significant risk that the latter might abscond. The Government inferred from this that the level of bail had been justified by the authorities' wish to achieve the primary aim of the impugned measure, namely to ensure that the accused appeared for trial.

Contrary to the applicant's assertion, his personal circumstances had been duly taken into account, as the courts had noted his foreign nationality, his complete lack of ties in Spain and the ease with which he could have left the country and thus evaded prosecution and obstructed the course of justice. Added to these factors had been objective considerations relating to the nature and seriousness of the alleged offences, the severe penalties they carried, the criminal and civil liability issues raised by the case, the considerable and undeniable public outcry, the national and international ramifications of the disaster and the exceptional scale of the damage. It followed that the amount of bail had been fixed in a non-arbitrary manner and that sufficient reasons had been given, in accordance with the criteria laid down by the Court in Neumeister v. Austria (27 June 1968, Series A no. 8) and Iwańczuk v. Poland (no. 25196/94, 15 November 2001), although the cases in question differed from the present case in some significant respects.

As to the nature of the alleged offences, the Government observed that the Corunna Audiencia Provincial, in its ruling on the case, had stated that the evidence available to it at that stage in the proceedings suggested that the alleged offences might have been committed intentionally (dolus eventualis). The court had made the point that environmental offences were not fully made out until such time as damage occurred as a result of the omissions of those who contributed to turning a hazard into catastrophic damage by repeatedly and persistently failing in their duty to manage the risk factors directly under their control and responsibility, that is to say, until the pollution of the natural resources became apparent, rather than when the pollutant was actually discharged. Furthermore, the offence of failure to comply with instructions, of which the applicant stood accused on account of the difficulties he had created by preventing the vessel from being taken in tow and hampering efforts to prevent and minimise the effects of the oil spill, had clearly been intentional and not the result of carelessness or negligence.

Accordingly, in the Government's view, Article 230 of UNCLOS was not applicable in the instant case, as it referred only to violations of the laws and regulations for the prevention, reduction and control of pollution of the marine environment committed by foreign vessels beyond the territorial sea, for which monetary penalties only could be imposed, and not to wilful and serious acts of pollution in the territorial sea. UNCLOS did not provide for immunity in respect of offences against the environment and natural resources: only monetary penalties could be imposed for breaches of national laws and regulations committed in the territorial sea, except in the case of wilful and serious acts of pollution.

With regard to the length of the likely custodial sentence, the Government observed that offences resulting in irreversible and catastrophic damage carried sentences of between six and nine years' imprisonment if committed intentionally and between four and six years if they resulted from negligence (see paragraphs 29 and 30 above). As to the applicant's age, the exemption on humanitarian grounds provided for by Article 92 of the Criminal Code did not amount to immunity; exemption from serving a custodial sentence required further conditions to be met.

The Government maintained that the amount of compensation due in settlement of civil claims had not been a determining factor in fixing bail, as demonstrated by the fact that the amount of bail was equivalent to less than 1% of the potential compensation. They were aware that determining the amount of security by sole reference to the losses sustained would be contrary to the Court's case-law, as the measure in question was intended to ensure the appearance of the accused at trial, not to guarantee payment of the compensation due in respect of civil claims. However, the authorities were not prohibited from taking this factor, among others, into account in assessing the risk of the accused's absconding, provided that his or her personal situation was also taken into consideration. On the contrary, the risk of the accused's absconding could not be assessed ‘solely’ by reference to the severity of the criminal and civil penalties — although these had to be taken into account — just as the amount of bail could not be determined ‘solely’ on the basis of the losses incurred. The Court's case-law in no way precluded account being taken of circumstances which might have a bearing on the risk of the accused's absconding and on the adequacy of the sum required by way of bail.

On this last point the Government stressed that, both in remanding the applicant in custody and in fixing bail, the domestic courts had taken into account his nationality, the fact that he was resident abroad and had no ties in Spain, his professional status and the environment in which he worked and — as specified by the Court in Neumeister — the persons who might be able to stand bail for him. They had also had regard to the complex legal structure governing the activity of the ship of which he was Master and the type of commercial activity in which he had been engaged. The fact that bail had been paid promptly served to confirm the validity of the criteria used to determine the amount. Furthermore, the Chamber had been correct in finding, in paragraph 39 of its judgment, that there had been a contractual legal relationship between the ship's owner and the insurer. Bail had been paid by the company which insured the applicant's employer, in accordance with usual practice in the shipping industry. If the applicant was found guilty of the charges against him, the judgment would fix the amount of compensation for which the shipowner employing him was civilly liable and which would ultimately be paid by the latter's insurer.

The Government requested the Court to find that there had been no violation of Article 5 § 3 of the Convention.

The third-party interveners' representative observed that the criminal liability of a ship's Master and crew for acts giving rise to pollution was strictly regulated by UNCLOS and MARPOL 73/78. Referring to Article 230 of UNCLOS, he pointed out that custodial penalties were prohibited for acts of pollution committed beyond the territorial sea, that is to say, more than twelve miles from the coast. As an additional safeguard against excessive action by the coastal State, UNCLOS provided a remedy in the form of an application for prompt release of a vessel or crew. In the three ‘prompt release’ (fisheries-related) cases in which it had had jurisdiction — Camouco, Monte Confurco and Volga — the International Tribunal for the Law of the Sea had ordered the release of the crew.

However, under CLC 1992 and the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, shipowners were civilly liable for damage of this kind, even if they were not at fault. While CLC 1992 stipulated that shipowners must be covered for civil liability, there was no obligation to indemnify the shipowner for the bail bond of the ship's Master. There was usually a discretion to provide cover in respect of matters that did not fall squarely within any of the risks covered but were closely linked thereto, where it was considered appropriate in the circumstances. However, such discretion was exercised only exceptionally and was not intended to provide cover in respect of bail for crew.

While civil liability insurance cover was subject to limits, the evolution of the market had led to a 50% increase in cover provided under CLC 1992 in the aftermath of the sinking of the Erika and the Prestige. Supplementary compensation could be paid by the Fund, but it would be inadmissible that dissatisfaction with the level of cover held by shipowners under the international system of civil liability agreed by States under CLC 1992 should justify reliance on setting high bail for seafarers in order to secure the unsecured part of the clean-up costs.

The third-party interveners' representative expressed concern at the increasing criminalisation of seafarers' actions, and referred in that regard to the Guidelines on fair treatment of seafarers in the event of a maritime accident, which called on States, inter alia, to:

He stressed that decisions on the detention of seafarers should be taken solely in accordance with the latter's personal circumstances and alleged actions and not on the basis of the possible consequences of those actions for the environment.

The Court reiterates that the guarantee provided for by Article 5 § 3 of the Convention is designed to ensure not the reparation of loss but, in particular, the appearance of the accused at the hearing. Its amount must therefore be assessed principally ‘by reference to [the accused], his assets and his relationship with the persons who are to provide the security, in other words to the degree of confidence that is possible that the prospect of loss of the security or of action against the guarantors in case of his non-appearance at the trial will act as a sufficient deterrent to dispel any wish on his part to abscond’ (see Neumeister, cited above, § 14).

In any event it is clear from the structure of Article 5 in general, and the third paragraph in particular, that bail may only be required as long as reasons justifying detention prevail (see, in particular, Musuc v. Moldova, no. 42440/06, § 42, 6 November 2007, and Aleksandr Makarov v. Russia, no. 15217/07, § 139, 12 March 2009). If the risk of absconding can be avoided by bail or other guarantees, the accused must be released, bearing in mind that where a lighter sentence could be anticipated, the reduced incentive for the accused to abscond should be taken into account (see Vrenčev v. Serbia, no. 2361/05, § 76, 23 September 2008). The authorities must take as much care in fixing appropriate bail as in deciding whether or not the accused's continued detention is indispensable (see, among other authorities, Iwańczuk, cited above, § 66; Bojilov v. Bulgaria, no. 45114/98, § 60, 22 December 2004; Skrobol v. Poland, no. 44165/98, § 57, 13 September 2005; Hristova v. Bulgaria, no. 60859/00, § 110, 7 December 2006; Musuc, cited above, § 42; and Georgieva v. Bulgaria, no. 16085/02, § 30, 3 July 2008).

Furthermore, the amount set for bail must be duly justified in the decision fixing bail (see Georgieva, cited above, §§ 15, 30 and 31) and must take into account the accused's means (see Hristova, cited above, § 111). In that connection, the domestic courts' failure to assess the applicant's capacity to pay the sum required was one of the reasons why the Court found a violation in the Toshev v. Bulgaria judgment (no. 56308/00, §§ 68 et seq., 10 August 2006).

While the amount of the guarantee provided for by Article 5 § 3 must be assessed principally by reference to the accused and his assets it does not seem unreasonable, in certain circumstances, to take into account also the amount of the loss imputed to him (see Moussa v. France, no. 28897/95, Commission decision of 21 May 1997, Decisions and Reports 89-B, p. 92). In the Kudła v. Poland judgment ([GC], no. 30210/96, ECHR 2000-XI, 26 October 2000), the Court observed that the domestic court had fixed the amount of bail by reference to the cost of the damage, the serious nature of the offences and, above all, the risk that the applicant would abscond (§ 47). It recognised that the risk of his absconding ‘was one of the main factors that [the court] took into account when determining the amount of bail’ (ibid., § 113).

In the instant case the applicant was deprived of his liberty for eighty-three days and was released following the lodging of a bank guarantee of EUR 3,000,000 corresponding to the amount set for bail. The Court observes that Article 531 of the Spanish Code of Criminal Procedure, as interpreted by the Constitutional Court (see paragraph 25 above), lists the main factors to be taken into consideration in fixing bail, namely the nature of the offence, the penalty at stake, the legal interest being protected, the social situation of the accused and any previous convictions, and any other circumstance which might prompt the accused to seek to evade justice. The domestic courts based their findings on the serious nature of the offence and the public outcry caused and on certain aspects of the applicant's personal situation, namely his nationality and place of permanent residence and the fact that he had no ties in Spain. For its part, the Constitutional Court took the view that the lower courts had provided ample reasons justifying the amount of bail and their refusal of the request to reduce it, on the following grounds: ‘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’. It further noted that the courts concerned had also taken into consideration the accused's personal and financial circumstances and his professional environment, and that all these circumstances taken together had led them to consider that the risk of his absconding could only be reduced by setting such a high sum for bail (see paragraph 25 above).

The Court is conscious of the fact that the amount set for bail was high, and is prepared to accept that it exceeded the applicant's own capacity to pay. However, it is clear from the foregoing that in fixing the amount the domestic courts 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’, circumstances which, in the courts' view, lent the case an ‘exceptional’ character. The Court must therefore ascertain whether this approach was compatible with Article 5 § 3.

In this connection the Court observes that, since the Neumeister judgment, it has consistently held that ‘[the accused's] relationship with the persons who are to provide the security’ is one of the criteria to be used in assessing the amount of bail (see paragraph 78 above).

As to whether it was legitimate to take the applicant's professional environment into account in the present case, the Court reiterates at the outset that the domestic courts, which are in touch with local reality, are in principle better placed than the international judge to assess this. In the instant case it is clear from the case file that the domestic courts considered it essential to ensure the applicant's appearance for trial before the courts hearing the case, in view of his responsibilities as the Prestige's Master. The seriousness of the offences concerned, the ‘national and international disaster caused by the oil spill’ (see paragraph 25 above) and the ‘public outcry’ (see paragraphs 17, 18 and 20) were such that the presence of the applicant constituted a ‘primary objective’ (see paragraph 25).

Against this background the Court cannot overlook the growing and legitimate concern both in Europe and internationally in relation to environmental offences. This is demonstrated in particular by States' powers and obligations regarding the prevention of maritime pollution and by the unanimous determination of States and European and international organisations to identify those responsible, ensure that they appear for trial and, if appropriate, impose sanctions on them (see ‘Relevant domestic and international law’ above). A tendency can also be observed to use criminal law as a means of enforcing the environmental obligations imposed by European and international law.

The Court considers that these new realities have to be taken into account in interpreting the requirements of Article 5 § 3 in this regard. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V). It cannot therefore be ruled out that, in a situation such as that in the present case, the professional environment which forms 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 retains its effectiveness.

In that connection the Court points out that the facts of the present case — concerning marine pollution on a seldom-seen scale causing huge environmental damage — are of an exceptional nature and have very significant implications in terms of both criminal and civil liability. In such circumstances it is hardly surprising that the judicial authorities should adjust the amount required by way of bail in line with the level of liability incurred, so as to ensure that the persons responsible have no incentive to evade justice and forfeit the security. In other words, the question must be asked whether, in the context of the present case, where large sums of money are at stake, a level of bail set solely by reference to the applicant's assets would have been sufficient to ensure his attendance at the hearing, which remains the primary purpose of bail. The Court agrees with the approach taken by the domestic courts on this point.

The Court further notes that, in deciding what constitutes a reasonable bond, the International Tribunal for the Law of the Sea also takes into account the seriousness of the alleged offences and the penalties at stake (see paragraphs 46 and 47 above). While conscious of the fact that the Tribunal's jurisdiction differs from its own, the Court nevertheless observes that the Tribunal applies similar criteria in assessing the amount of security, and that the fact that it has a duty not to prejudice the merits of the case does not prevent it from making determinations bearing on the merits when these are necessary for the assessment of a reasonable bond (see, in particular, the ITLOS judgment of 6 August 2007 in Hoshinmaru, § 89, cited at paragraph 46 above).

In the instant case it is established that bail was paid by the company which insured the owner of the ship of which the applicant was Master. Leaving aside the considerations — ‘humanitarian’, contractual or other — which may have motivated the insurer, and which are disputed between the parties, the very fact that payment was made by the shipowner's insurer would seem to confirm that the Spanish courts, when they referred to the applicant's ‘professional environment’, were correct in finding — implicitly — that a relationship existed between the applicant and the persons who were to provide the security.

The observations of the third-party interveners' representative make clear that the 1992 International Convention on Civil Liability for Oil Pollution Damage requires shipowners to take out civil liability insurance but that there is no obligation to indemnify the shipowner for the bail bond of a ship's Master who has been detained by the maritime authorities. The interveners' representative also pointed out that the discretion exercised exceptionally by insurers in certain circumstances did not extend to providing cover in respect of bail for seafarers. And while the applicant and the third-party interveners' representative stressed that the shipowner and the insurer had not been bound by any obligations in the matter of bail, whether by virtue of custom and practice or contractually, the applicant acknowledged that Rule 9.28 of the London P&I Rules had served as a legal basis for payment (see paragraph 55 above). In any event, the Court observes that it was indeed the insurers of the applicant's employer, that is, the London Steamship Owners' Mutual Insurance Association, which paid the security.

In these circumstances the Court considers that the domestic courts, in fixing the amount of bail, took 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 courts were justified in taking into account the seriousness of the offences in question and the amount of the loss imputed to the applicant.

It follows that there has been no violation of Article 5 § 3 of the Convention.