JOINT DISSENTING OPINION OF JUDGE S ROZAKIS, BRATZA, BONELLO, CABRAL BARRETO, DAVÍD THÓR BJÖRGVINSSON, NICOLAOU AND BIANKU

1 . We are unable to agree with the majority of the Court that there has been no violation of Article 5 § 3 of the Con vention in the present case. In our view the setting of bail by the Spani sh courts in an amount of 3,000,000 euros (EUR), a sum far beyond the means of the applicant, with the consequence that he continued to be detai ned on remand for a total of eighty-three days, was in clear violation of his rights under that Article.

2 . We note at the outset that, although emphasis was placed by the national courts on the seriousness of the suspected offences, the disastrous environmental and economic consequence s of the oil spillage and the public outcry it caused, these were not factors which of themselves were regarded as requiring the continued detention of the applicant. As stated by the Constitutional Court, the overriding objective was to secure the applicant ’ s presence at the trial. The seriousness of the offences and of the penalty which they carried were seen by the national courts as increasing the risk that the applicant would abscond or not appear for trial in the event that he were ultimately charged and thus as justifying an exceptionally high amount of bail before he could be released. The central question is whether the fixing of bail at this level was based on principles which were compatible with the requirements of Article 5.

3 . The general principles developed by the Court under Article 5 § 3 as to the setting of bail are summarised in paragraphs 7 8 to 8 1 of the judgment. Three principles appear to us to be of special importance in the present case.

( i ) As appears from the terms of Article 5 § 3 itself, the setting of bail as a condition of release is designed to ensure not the reparation of any loss suffered in consequence of the suspected offence but only the presence of the accused at the trial. The sum set cannot accordingly be fixed by reference to the amount of any loss which might eventually be imputable to the accused or his employers but must be assessed principally by reference to him, his assets and his relationship with those persons, if any, who offer themselves as sureties to guarantee his appearance. Where no such sureties are offered, it is the accused person and his assets which must be the principal reference point for the setting of bail ( see Bonnechaux v. Switzerland , no. 8224/78, Commission r eport of 5 December 1979, Decisions and Reports ( DR ) 18, p p . 1 26 , 144, § 73, and Moussa v. France , no. 28897/95, Commission decision of 21 May 1997, DR 89- B , p. 92).

(ii) There is an obligation on an accused applicant to furnish to the national authorities sufficient information regarding his assets. There is also an obligation on those authorities, including the national courts, to examine the information that they have as to the resources of the person concerned before setting the bail. The authorities must take as much care in fixing appropriate bail as in deciding whether or not continued detention is indispensable ( see Toshe v v. Bulgaria , no. 56308/00, 10 August 2006). In certain special circumstances, it may be legitimate to take into account also the extent of the losses imputed to the accused in fixing a higher level of bail. However, such cases have in general concerned offences involving fraud or the misappropriation of funds, where there is evidence to suggest that the accused may have substantial undisclosed assets (see, for example, Moussa , cited above , and Skrobol v. Poland , no. 44165/98, 13 September 2005).

(iii) Domestic courts must adduce sufficient arguments to justify the amount of bail fixed. The seriousness of the charge not only cannot be the sole factor justifying the size of the bail; it cannot be the decisive factor ( see Hristova v. Bulgaria , no. 60859/00, 7 December 2006). Nor can the danger of absconding be evaluated solely on the basis of considerations relating to the gravity of the penalty likely to be imposed. As the Court observed in the Neumeister v. Austria case (27 June 1968, Series A no. 8, § 10 ), other factors must also be taken into account, including “the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted”. Regard should also be had to the use of other preventative measures, alone or in conjunction with bail, to reduce the risk of absconding and ensur e the accused ’ s attendance at the trial.

4 . Although , in setting and upholding the amount of bail , no assessment appears to have been made by the Spanish courts of the applicant ’ s personal assets, the sum of EUR 3 ,000,000 fixed by the Corunna n o. 4 investigating judge self-evidently bore no relation to the personal means of the applicant. At the time of fixing bail, no sureties had offered to post bail on his behalf and there is no suggestion that, as the Master of a cargo ship, the applicant himself was in a position to find sureties to meet such a sum. Further, the circumstances of the case were not, in our view, such as to justify the national courts in taking account of the losses resulting from the acts imputed to the applicant: unlike the cases mentioned above, the offences of which the applicant was suspected did not involve fraud or imputations of personal and unlawful gains.

5 . It is conceded by the majority of the Court that the amount set as bail was “high” and that it exceeded the applicant ’ s own capacity to pay. In finding the sum, nevertheless, to be compatible with Article 5, the majority place emphasis on two features of the case which in their view entitled the domestic courts to conclude that it was of an “exceptional character” – the applicant ’ s relationship to the persons who eventually provided the guarantee for his bail, namely the owners and insurers of the ship of which he was Master, and the gravity of the offences of which the applicant was suspected.

6 . We do not consider that either of these features was such as to justify the bail demanded by the Spanish courts in terms of Article 5 § 3 of the Convention.

As to the former, we note that, in fixing the bail, the investigating judge made no reference to the owners of the Prestige or to the insurers of the ship or to any obligation on the part of either to meet any bail which might be set. Nor was any such reference made by the Corunna n o. 1 investigating judge in the applicant ’ s two requests for release or by the Audiencia Provincial on his appeal. The only suggestion that the financial support of the owners or insurers of the vessel played a part in the decisions of the courts in setting or upholding the amount of the bail is in the d elphic statement of the Constitutional Court that the applicant ’ s “professional environment” had been taken into account, a phrase which is interpreted in the judgment as embracing the applicant ’ s relationship with the shipowners . However, what is clear is that at no stage prior to the applicant ’ s release was any inquiry made by the national courts as to the legal obligations, if any, of the owners to post bail or as to the relevant insurance arrangements which existed between the owners and their insurers. In particular, there appears to have been no investigation of the question whether the insurers had any responsibility to indemnify the shipowners in respect of the bail bond of a ship ’ s Master who had been detained by the maritime authorities in the circumstances of the present case. Indeed, according to the undisputed evidence of the third - party interveners, there was no such legal obligation under the 1992 International Convention on Civil Liability for Oil Pollution Damage and neither the shipowners nor their insurers had any legal responsibility in re gard to bail, whether by custom, practice or contractual arrangement.

7 . While acknowledging this to be the case, the majority emphasise that the very fact that payment was made by the shipowners ’ insurers “would seem to confirm that the Spanish courts ... were correct in finding – implicitly – that a relationship existed between the applicant and the persons who were to provide the security” ( paragraph 90 of the judgment ) and that “in any event ... it was indeed the insurers of the applicant ’ s employer , that is, the London Steamship Owners ’ Mutual Insurance Association, which paid the security” ( paragraph 91 ). The fact that the applicant ’ s bail was eventually posted by the insurers is, in our view, of limited importance in terms of Article 5 § 3 of the Convention. Of more significance is the fact that, in setting bail, the national courts based themselves on what was, at best, an unsupported assumption that the shipowners or their insurers would feel morally obliged to come to the applicant ’ s rescue by posting bail rather than allowing him to languish in detention on remand. Moreover, by the time they did so, the applicant had already spent two and a half months in custody. This approach to the fixing of bail was not, in our view, consistent with the responsibilities required of national courts by that provision of the Convention.

8 . As to the gravity of the offence of which the applicant was suspected, we fully share the view of the majority as to the growing and legitimate concerns, in Europe and more broadly, in relation to environmental damage and the increasing tendency to use the criminal law as a means of enforcing the environmental obligations imposed under international law. However, even if, as the majority argue, 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. Even accepting, as the judgment asserts, that it was “hardly surprising” that the judicial authorities should adjust the amount of the bail in line with the level of civil liability incurred, “so as to ensure that the persons responsible [ had ] no incentive to evade justice and forfeit the security”, this was not in our view compatible with the requirements of Article 5 § 3, particularly in a case where the legal relationship of those persons had not even been examined by the courts themselves. Nor was it in our view consistent with the principles governing that provision to fix bail at a level far beyond the reach of an individual accused by reference to the strength of the public outcry over the damage caused by the acts or omissions imputed to him.

9 . The majority accept the view of the domestic courts that, in the context of the present case, where large sums of money were at stake, a level of bail set solely by reference to the applicant ’ s assets would not have been sufficient to ensure his attendance at the hearing ( see paragraph 88 ). We observe, however, that the applicant was prepared to put up bail of EUR 60,000, a substantial sum for an individual in the position of the present applicant. Moreover, a striking feature of the present case is that the national courts do not appear to have taken account, when setting and upholding the bail, 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. Nor was any account apparently taken of the penalty which might be imposed on a person of the age of the applicant, who was at least unlikely to be subject to a custodial sentence if tried and convicted of the offences of which he was suspected. Of equal importance is the fact 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, such as those which were imposed when he was eventually released ( see paragraph 21 ) and when the applicant was subsequently allowed to return to Greece ( see paragraph 26).

10 . The majority conclude by stating that sufficient account was taken by the Spanish courts of the applicant ’ s personal situation and that, in view of 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. We disagree. In our view, the approach of the Spanish courts in fixing the applicant ’ s bail was not compatible with the principles established by the Court under Article 5 § 3 of the Convention, the fundamental purpose of which is to ensure that no one is arbitrarily deprived of his liberty.