By Tobias Thienel

In a case that has stirred emotions when it first came to the fore, the European Court of Human Rights today had occasion to stress the strong public interest, reflected in domestic as in international law, in the protection of the maritime environment. To the ECtHR, that case is known as Mangouras v Spain; to the rest of the world it is part of the drama resulting from the sinking of the Prestige off Galicia, Spain, in November 2002.

The applicant, Mr Mangouras, had been the captain of the Prestige, and was promptly arrested on being taken to the Spanish shore. A Spanish judge then fixed the amount of bail at a somewhat steep 3,000,000 €. An insurance company came up with the sum fixed, and Mr Mangouras was released from jail after 83 days. That, basically, is what the case in the European Court was about; the applicant argued that the amount of bail was much too high, violating Article 5(3) ECHR (see e.g. Iwanczuk v Poland, para 66).

The case-law mandated that the Court consider the temptation for an accused to absent himself from the proceedings, and whether the amount of bail was proportionate to the aim of counteracting that temptation, thus securing the indictee’s presence at trial. The nature of the offence with which the accused would be charged was therefore relevant, going to the strength of the possible desire to abscond. Against that background, the Court said (my translation; French original after the fold):

"The Court cannot ignore the rising and legitimate concern existing at the European and the international level with regard to crimes against the environment. It notes in this regard the powers and obligations of States concerning maritime pollution and the unanimous interest of States as well as of European and international organisations in identifying those responsible, securing their presence at court proceedings and in punishing them […]. The Court feels that it should take into account the individual circumstances of the case, that is to say, the specific breaches committed in the context of a ‘cascade of responsibilities’ peculiar to the law of the sea and, in particular, to attacks on the maritime environment, and that those circumstances distinguish this case from other cases in which the Court has been called upon to assess the duration of provisional detention."

"[L]a Cour ne saurait ignorer la préoccupation croissante et légitime qui existe tant au niveau européen qu’international à l’égard des délits contre l’environnement. Elle relève à cet égard les pouvoirs et les obligations des États en matière de lutte contre les pollutions maritimes et la volonté unanime tant des États que des organisations européennes et internationales d’en identifier les responsables, d’assurer leur présence lors du procès et de les sanctionner […]. La Cour estime qu’il faut tenir compte des circonstances particulières de l’affaire, à savoir, la spécificité des infractions commises dans le cadre d’une « cascade de responsabilités » propre au domaine du droit de la mer et, en particulier, aux atteintes à l’environnement maritime, et qui la distinguent des autres affaires où elle a été amenée à connaître de la durée d’une détention provisoire."

It is particularly interesting, I would suggest, that the interest in the preservation of the environment is here employed against the applicant’s human rights. There have been numerous cases in which applicants have raised in the European Court their own interest in their immediate natural environment, and in which such interests were in fact vindicated, particularly as aspects of the applicants’ right to respect for their private and family life or to their home (see e.g. López Ostra v Spain, esp para 51; Guerra and Others v Italy, esp para 60). Those cases, in a sense, involved an application of environmental interests in support of a human rights claim. The present case is the converse: the Court has here treated the protection of the environment as a truly public interest, to be weighed against the rights of the applicant (see C Schall, ‘Public Interest Litigation concerning Environmental Matters before Human Rights Courts: A Promising Future Concept?’, Journal of Environmental Law 20 (2008), 417-453, at 449-450). This may, admittedly, be true only in an indirect manner: protection of the environment doesn’t strictly outweigh anything here, there being no immediate balancing of the environmental against the private interests involved. (Unlike in Fägerskiöld v Sweden, where the environmental advantages of a wind turbine was held to be sufficiently ‘in the public interest’ to justify disadvantages to its immediate neighbours). The Court did, however, employ the environmental aspect as strengthening the public interest in the prosecution going forward, and therefore as supporting measures to secure the criminal proceedings.

That may not, admittedly, be hugely creative of the Court, but it is a welcome recognition of an important public interest, in a particularly dramatic case.