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INCIDENTS INVOLVING THE IOPC FUNDS 1992 FUND

PRESTIGE

Original: SPANISH

Related document: IOPC/APR15/3/2

Full text of the Supreme Court judgment of 14 January 2016.

mailto:info@iopcfunds.org

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SUPREME COURT

Criminal Chamber

JUDGMENT

Judgment No.: 865/2015

Date of Judgment: 14/01/2016

President, Her Honour Mrs.: Ana Mara Ferrer Garca

Second Judgment

CASSATION APPEAL No.:1167/2014

Judgment/Agreement: Judgment Partially Upheld

Trial date: 29/09/2015

Origin: Audiencia Provincial of La Corua. Section 1

Court Secretary: Mrs Sonsoles de la Cuesta y de Quero

Written by: IMS

Prestige. Possibilities of revision of acquittals.

Criminal negligence against the environment: spill of fuel oil into the sea. Aggravated

offences of catastrophic risk and disobedience. Relationship of the latter with the

offence set out in Article 556 CP. Criminal damage to protected natural areas. General

clause of Article 338 CP. Civil liability: Regime established by the Convention on

Liability for Oil Pollution Damage 1992 (CLC 92). Civil liability of the person

convicted of criminal liability and owner of the ship as having subsidiary civil liability.

Liability of the insurer (P&I contracts). Liability of the IOPC Fund. Criteria for

determining civil liability. Costs: apportionment in the event of multiple accused and

offences; possibility of imposing costs relating to the acquitted defendant in cases of

recklessness and bad faith.

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No.: 1167/2014

Honourable President Mrs: Ana Mara Ferrer Garca

Approved: 29/09/2015

Court Secretary: Mrs Sonsoles de la Cuesta y de Quero

SUPREME COURT Criminal Chamber

JUDGMENT No.: 865/2015

Honourable judges:

Manuel Marchena Gmez

Miguel Colmenero Menndez de Luarca

Francisco Monterde Ferrer

Andrs Palomo Del Arco

Mrs Ana Mara Ferrer Garca

In the name of the King

The Second Chamber of the Supreme Court, constituted by the honourable

judges listed above, in the exercise of the authority granted them by the

Constitution and the Spanish People, has ruled as follows

JUDGMENT

In the City of Madrid, on the fourteenth day of January, two thousand and

sixteen.

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This Court, composed as indicated above, has heard the cassation appeal

for breach of law, procedural flaw and violation of the constitution rule, filed by

the GOVERNMENT OF GALICIA, the PUBLIC PROSECUTOR,

APOSTOLOS IOANNIS MANGOURAS, NIKOLAOS ARGYROPOULOS,

REGIONAL COUNCIL OF BRITTANY, ISIDRO DE LA CAL FRESCO S.L.,

LUSO-HISPANA DE ACUICULTURA S.L., CALTRAN SAU,

PASTEURIZADOS DEL MAR S.L., PROMOTORA INDUSTRIAL SADENSE

S.A., UNIPERSONAL (PROINSA), MR JUAN CIPRIANO FERNNDEZ

AREVALO, DEPURADORA DE MARISCOS DE LORBE S.A., the GENERAL

STATE ADMINISTRATION, the "ARCO IRIS" ECOLOGICAL AND

PACIFIST ASSOCIATION, AMEGROVE SOCIEDAD COOPERATIVA

GROVENSE DE MEJILLONES S.A., PATRARCIS S.L., NUNCA MAS

CITIZENS PLATFORM and the FRENCH STATE, against the judgment

delivered by the Audiencia Provincial (District Court) of La Corua (Section 1),

which acquitted Apostolos Ioannis Mangouras, Nikolaos Argyropoulos and Jos

Luis Lpez-Sors Gonzlez of the crimes against the environment, damage to

protected natural areas and criminal damage of which they were accused, and

Nikolaos Argyropoulos of a crime of disobedience and found Apostolos Ioannis

Mangouras guilty of a crime of disobedience. Party to the proceedings were Mare

Shipping Inc. represented by Lawyer Luis Martin Jaureguibeitia [sic], the 1992

International Oil Pollution Compensation Fund (1992 IOPC Fund) represented by

Lawyer Silvia Virtu Bermejo, Biscarrose Municipal Council represented by

Lawyer Federico Ortiz Caavate Levenfeld and Jos Luis Lpez-Sors represented

by the Public Prosecutor. The Government of Galicia was represented by Lawyer

Argimiro Vzquez Guilln; the accused Apostolos Ioannis Mangouras by Lawyer

Jos Luis Martn Jaureguibeitia; the accused Nikolaos Argyropoulos by Lawyer

Rosa Martnez Serrano; the Regional Council of Brittany by Lawyer Miguel

Torres Alvarez; the companies Isidro de la Cal Fresco S.L., Luso-Hispana de

Acuicultura S.L., Caltran Sau, Pasteurizados del Mar, S.L., by Lawyer Almudena

Gil Segura; Promotora Industrial Sadense S.A. Unipersonal (PROINSA), Juan

Cipriano Fernndez Arvalo and Depuradora de Mariscos de Lorbe, S.A., by

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Lawyer Miguel Torres Alvarez; the "ARCO IRIS" Ecological and Pacifist

Association by Lawyer Jos Andrs Peralta de la Torre; Amegrove Sociedad

Cooperativa Grovense de Mejillones S.A. and Patrarcis S.L., by Lawyer Argimiro

Vzquez Guilln; the Nunca Mas Citizens Platform by Lawyer Ignacio Aguilar

Fernndez; the French State by Lawyer Federico Ortiz Caavate Levenfeld; and

parties to the proceeding were the Public Prosecutors Office and General State

Administration represented by the Public Prosecutor. The Presiding Judge was

the Rt. Honourable Mrs Ana Mara Ferrer Garca.

I. BACKGROUND

ONE. Court No. 3 of Corcubin opened Preliminary Proceedings

960/2002 against Apostolos Ioannis Mangouras, Nikolaos Argyropoulos,

Ireneo Maloto (in absentia) and Jos Luis Lpez-Sors Gonzlez for crimes

against the environment, damage to protected natural areas and criminal damage;

against Nikolaos Argyropoulos for a crime of disobedience and against

Apostolos Ioannis Mangouras for a crime of serious disobedience to authority.

Upon conclusion of the proceedings, they were referred to the Audiencia

Provincial of La Corua (Section 1) which, on 13 November 2013, delivered a

judgment which contains the following PROVEN FACTS:

It was proved and so declared that on 13 November 2002, the ship, the

Prestige, was sailing near Cape Finisterre, through the maritime corridor known

as the Traffic Separation Scheme (TSS), approved in the vicinity of the coast of

Galicia and under Spanish jurisdiction according to the agreement with the IMO.

(The International Maritime Organization (IMO) is a specialized agency of the United Nations which

promotes cooperation between States and the maritime transport industry to improve maritime safety and

prevent marine pollution. Recent initiatives of the IMO have included reforms to the International

Convention for the Safety of Life at Sea (SOLAS) and the International Convention for the Prevention of

Pollution from Ships (MARPOL 73/78). Its headquarters is in London, United Kingdom). The

PRESTIGE, was owned by the GREEK SHIPPING COMPANY UNIVERSE

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MARITIME LTD, although according to its registration data, its owner was

MARE SHIPPING INC. LIBERIA, while the operator of the said ship was the

aforementioned company UNIVERSE MARITIME, ATHENS, which had a

certain business and/or management relationship with the company Finisterre

Agencia Martima S.A., while its insurer, only from 30/09/2002 was THE

LONDON STEAMSHIP OWNERS MUTUAL INSURANCE ASSOCIATION

(THE LONDON P&I CLUB), represented in Spain by Pandi Claims Services

Spain, while the company Crown Resources was involved in questionable services

in relation to the said ship, probably acting as intermediary in buying loads and

arranging for their distribution, as well as fixing the ships ports of destination,

as shown by the existence of a management contract dated 06/12/2000 between

MARE SHIPPING INC. and UNIVERSE MARITIME, in which CROWN

RESOURCES is recognized as the charterer, and is also the charterer under the

charter policy concluded on 24/05/2002.

This ship, the Prestige, was an oil tanker which had been in service for

some 26 years, after having been built in Japan in 1976 at the yards of Hitachi

Shipbuilding & Engineering Co.; its main characteristics being: overall length

243.5 metres, beam 34.4 metres, depth 18.7 metres, mean draught 14.00 metres,

design deadweight 81,589 metric tonnes sailing under the flag of the Bahamas, in

which country it was registered under number 7372141, with a certificate from

the AMERICAN BUREAU OF SHIPPING (hereinafter ABS) (This is a classification

society based in Houston, Texas. ABS was founded in 1862 and is currently one of the three leading

companies in its sector in the world, alongside Lloyds Register and the Norwegian organization Det

Norske Veritas. The mission of ABS is to pursue the general interest and the needs of its clients by

promoting safety of human life and property and protection of the marine natural environment through

the development and verification of standards in the design, construction and maintenance of ships and

offshore platforms) stating that its seaworthiness was in accordance with the

standards required for that class of oil tanker on the date, 24/05/2001, shown

initially on the certificate, and that entered under the signature of E. L. Beche, an

ABS inspector on 16/08/2001, until the validity of the said certificate ended on

31/03/2006, and further noting the issue of a Safety Management Certificate dated

19 July 2001 and valid until 20/06/2006, according to which the requirements of

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the International Safety Management Code for the Safe Operation of Ships and

for Pollution Prevention (hereinafter, ISM Code) were satisfied and further noting

that the ship had the mandatory SOLAS (International Convention for the Safety of Life at

Sea) aft emergency towing arrangement (rear part of the ship), duly installed and

approved by ABS on 26/11/1996, and certified serviceable at the last annual

inspection of the ship on 25/05/2002.

Despite this, Repsol (a Spanish energy company, with a special presence in the oil market

based in Madrid) had disqualified the Prestige in 1997 because it was over 20 years

old, had documentary flaws in the revisions and did not have a CAP (Condition

Assessment Program Certificate (Maintenance certificate)). It was also considered unsuitable

for Mlaga and Corua on CBT (Clean Ballast Tank) grounds. (Ballast means the ballast in a

tank which, since oil was last carried therein, has been cleaned in such a way that any effluent therefrom, if it were

discharged from a stationary ship into clean, calm water on a clear day, would not produce visible traces of oil on the

surface of the water or on adjoining shorelines, or cause sludge or emulsion to be deposited beneath the surface of

the water or upon adjoining shorelines). BP (formerly British Petroleum, an energy company, chiefly

engaged in oil and natural gas, based in London, United Kingdom, and one of the biggest companies in

the world) had also disqualified Prestige in 2000, since it had been rejected by BP

SHIPPING Ltd for the carriage of crude oil and its derivatives as of 4 April 2000,

because it did not meet the safety standards demanded by BP.

The aforementioned ship was on passage from St Petersburg which it left

on 31/10/2002 with a cargo of fuel oil which was completed in the port of

Ventspils, in Latvia, the last port of lading (pages 13617 et seq. show the

acquisition of fuel by the Prestige; page 13813 shows the certificate of origin of

the fuel of the Prestige), with a draught of 14.05 metres, i.e. it had an excess

draught of 0.30 metres, which would mean that it was carrying some 2,150 tonnes

in excess weight, with a cargo on board of 76,972 metric tonnes of heavy fuel oil

(fraction of crude oil, obtained by refining and distillation, which is used as a fuel) with a Relative

density of (15/15C) 0'925-0'965, Kinematic viscosity (cS, 37, 78C) 49-862,

Flashpoint over 90C. The cargo tanks were practically full except Centre (C)

tank 1, which was partially full. Tanks 2 A and 3 port (left side of the ship looking from

stern to bow) and starboard, clean ballast tanks (CBL) were empty.

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The fuel oil loaded by the Prestige in St Petersburg was of Russian origin,

of which 21,900 tonnes were sold by the company Morton Enterprises Limited to

Crown Resources AG, much of it coming from a so-called fluvial programme in

several loads on barges. The rest was loaded in Klaipda (up to now Lithuanias only major

seaport on the Baltic Sea) by various suppliers, but the origin of the fuel oil was also

Russia.

The ship had been used to supply fuel/fuel oil to ships on the high sea or

in other places where the ships it supplied were berthed (placing a ship so that its side is

almost in contact with the other ship, terminal or dock, etc.) alongside the oil tanker.

It immediate destination was Gibraltar, where the captain was to receive

orders and instructions, while the most likely port to which he was headed was

Singapore or another Asian port.

The Prestige was commanded by CAPTAIN APOSTOLOS IOANNIS

MANGOURAS, aged 67, who was taking medication following heart surgery; the

First Officer was Ireneo Maloto, aged 38 and the Chief Engineer was NIKOLAOS

ARGYROPOULOS, aged 63. None of them had a criminal record. The crew was

composed of 24 seafarers of Philippine nationality, almost all of whom were

young and inexperienced.

At 14:10 hours UTC (the UTC, a compromise between the English versions: Coordinated

Universal Time and the French version: Temps Universel Coordonn is the principal standard time by which the

world regulates its clocks and time. Central European Time (CET) is one of the names of the time zones, which is 1

hour ahead of Coordinated Universal Time (UTC). It is used in the majority of European countries and North Africa)

on the day in question, 13 November 2002, the ships crew heard a loud noise,

like an explosion, followed by a sudden and pronounced list (inclination adopted by a ship

under the force of its sails, due to the shifting of the cargo or another cause) of 25 to 30 degrees to

starboard (right hand side of the ship looking from stern to bow), when it was located 27.5 miles

West of Finisterre, within the maritime corridor known as the Traffic Separation

Scheme (TSS). The engine stopped automatically when the lubrication of part of

it ceased, which meant a risk of destruction or very serious damage.

This list was due to a structural failure in the starboard side which caused

a very large opening in the hull through which a large part of the cargo spilled

into the sea, and all of it shifted to that side, which put the ship at risk of capsizing.

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The damage occurred in a critical area, in rib 71, some 14.75 metres forward of

the mid-section of the ship, between ballast tanks 2AS and 3S.

The structural failure was due to deficient maintenance and conservation

unnoticed by, and hidden from, those aboard the ship, commanding it or carrying

out any other duty. These deficiencies contributed to a weakening of the solid

structure of the ship, such that it could not withstand the pounding waves and the

demands placed on it by the heavy seas, because the day on which the described

list occurred was one of weather conditions of the kind labelled adverse, i.e. on

that day there was a depression centred over the British isles, with a secondary

centre close to Finisterre which produced storm weather in the area. The worst

conditions would occur between 06Z and 12Z, and were described at OOOOZ:

SW - 6, rough to very rough. Swell from NW of 5 m. 0600Z: SW - 8 (storm), very

rough. Swell from NW of 5 m. 1200z: At that time there was a front close to

longitude 10W. As the front passed, the wind would have become very strong and

with squalls. West of longitude 10W: NW - 9 to 11 (very severe storm). East of

longitude 10W: SW - 8 to 10 (severe storm). THROUGHOUT THE AREA SEA

VERY ROUGH TO HEAVY. Swell from W about 5 m.

To correct the list and right the ship (place upright or vertical what is inclined, especially

a ship), the captain decided to let in sea water, opening the valves manually to

operate pumps which let water into the ballast tanks, which he did despite being

aware that the stress on the materials would be extraordinary and when the crew

were still on board (on or inside a ship or, by extension, a means of transport ), managing to

right the ship in hours, although this operation to correct the list significantly

worsened the ships structural situation.

The first distress call was received by the Finisterre Maritime Regional

Coordination Centre for Rescue and Oil Pollution Prevention (hereinafter

MRCC) at 14:15 hours on 13/11/02 and shortly afterwards, at 14:33 hours, the

Prestige requested evacuation of the officers and crew.

The Spanish Administration then mobilized helicopters and tugs to assist

the ship, carry out the requested evacuation and prevent the ship drifting towards

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the Galician coast and beaching (said of a ship: grounding on sand or rock, and remaining there

without moving)/running aground there (said of a ship: violently grounding on the bottom).

The then Director-General of the Spanish Merchant Marine, JOS LUIS

LPEZ-SORS GONZLEZ, aged 61, born 08/10/1941 and with no criminal

record, then took charge of and assumed responsibility for these operations. The

management of these operations was centred in the building of the Government

Office in La Corua, where the Government Delegate, ARSENIO MIGUEL

FERNANDEZ DE MESA DAZ DEL RO carried out a diffuse and confused task

of coordination, both in setting up a body to direct the operations, facilitating the

bureaucratic structure and consulting people who could advise the authorities

and assist the ship, prevent a catastrophic spill of fuel oil and recover the ship

despite its serious damage.

The helicopters sent to the location of the incident evacuated the 24

seafarers on the Prestige in two groups of 7 and 17 men respectively at 18:30

hours on the same day, 13/11/2002.

The Captain, Chief Engineer and First Officer stayed on the ship

voluntarily and at personal risk.

The initial and repeated decision of the Spanish authorities was to

distance the damaged ship from the Spanish coast and to that end they issued

orders in accordance with a general opinion that no one disputed.

As early as 17:17 hours on 13/11/2002 when the order was transmitted

from the MRCC to the Prestige for the ship to be towed away from the coast, the

captain repeatedly expressed his reluctance and refusal to accept a tow, on the

grounds that he needed orders from the operator to do so, such that he did not

accept a tow until some two and a half hours later, which was very problematic

because the aft emergency towing arrangements could not be used and at the bow

the heavy sea conditions and the inherent difficulty of the manoeuvre meant that

the attempts to secure the tow were unsuccessful, and several tow lines (rope passed

from one ship to another anchored or fixed to another object to perform various tasks) and/or mooring

cables (in nautical jargon, a rope of considerable thickness. May also refer to the end of a rope, cord or tie.

Hauling in, securing, tying a rope is called mooring) were broken in the attempt, and the

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Prestige continued to drift, so it was requested that crew from the tugs should

come aboard to assist the people attempting to secure the tow, among them two

older persons, the Captain and Chief Engineer.

Two crew members from the tug IBAIZABAL I then went aboard to help

in the task of securing the tow.

According to the operations chief of REMOLCANOSA, Gonzalo Vidal

Costa, between 17:00 and 21:09 hours on 13/11/2002, negotiations took place on

the use of the tugs and an open form agreement was signed with Lloyds, i.e.

LLOYD'S STANDARD FORM OF SALVAGE AGREEMENT (APPROVED

AND PUBLISHED BY THE COUNCIL OF LLOYD'S): NO CURE-NO PAY

(pages 1368 et seq.).

Despite the existence of a fax sent the same day, 13/11/2002, thanking

them for confirmation of a tow contract, a document was signed at an unspecified

time on the following day, 14/11/2002, which reads as follows:

Before me, ngel del Real Abella, Harbourmaster at La

Corua, Captain WYTSE H. HUISMANS, Dutch Merchant Captain, of the

company Smit Salvage and who is to take command of the Bahamas flagged

ship "Prestige" by order of its operator, undertakes:

Never to be less than 120 nautical miles from Spanish

jurisdiction or areas where Spain exercises jurisdiction. On this course, it

will be escorted by ships of the Spanish Navy, which will prevent its entry

within the aforesaid 120 miles.

In addition, it will have the support of a Sasemar salvage vessel

to facilitate the transhipment of the cargo and safety of the personnel on

board.

In witness whereof you are informed, through the

representative of the Spanish agent, Ceferino Nogueira, that the

abovementioned C includes the said document in all its terms.

At 10:30 hours on 14/11/2002, a Spanish engineer, Serafn Daz Regueiro,

reached the Prestige and, in a hazardous descent from a helicopter, landed on the

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ship and proceeded, at 15:30 hours, to start the engine with the help of the persons

who were on the ship, although the exact timings of this situation are confused.

At 14:00 hours on the same day, four tugs reached the Prestige and,

finally, the tug RIA DE VIGO secured the tow at 12:40 [sic] hours UTC when the

ship was 5.3 miles off Muxa and 4.6 miles off Cape Tourin, successfully

attaching the towline at the seventh attempt in terrible conditions, although

previously (at the fourth attempt) the tug Sertosa 32 succeeded but could not tow

the Prestige and afterwards other tugs secured towlines, and were ordered to steer

a course of 330 degrees, i.e. towards a storm approaching from the NW.

According to the report of the Finisterre Central Zone up to 18:00:44

hours UTC on 14 November 2002 the symbol representing the ship Prestige

(C6MN6) had a closed rectangular shape (actual echo) and thereafter the

graphics show the said ship in a rectangular shape, open on the two lateral faces

(inertial echo).

A salvage and rescue company, SMIT SALVAGE, took charge of the ship,

and boarded the ship at 02:50 hours on 15/11/2002, after signing the undertaking

to distance the ship to 120 miles from the Spanish Coast with the harbourmasters

office, as reported.

The salvors then decided to stop the engine of the Prestige and set a course

220 degrees south-west, establishing that the break in the starboard side of the

Prestige was 35 metres long and below the waterline, and therefore they requested

a port of refuge from the Spanish authorities, but this request was refused.

At 14:00 hours on 15/11/2002, the Harbourmasters Office at La Corua

filed a complaint in Court against the captain of the ship for obstruction and

disobedience, and at 14:30 hours of that same day, the Prestige was completely

evacuated, i.e., rescuing the ships officers who had not abandoned it up to that

time, five Filipino crew members who had returned to the ship to assist with the

operations and five Dutch engineers from a special team.

When Captain Mangouras arrived at Alvedro Airport, La Corua, at

18:45 hours on the same day, 15/11/2002 he was arrested by the Guardia Civil,

placed under judicial investigation and ordered to be detained on remand. This

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continued until 06/02/2003, when he was released on payment of bail of 3,000,000

euros.

The Prestige continued its route under tow southwards, with structural

damage that became increasingly obvious and serious. In the last hours of 16

November and the early hours of the 17th, it was realized that there was now not

only a longitudinal hole, but a transversal crack which caused movement in the

starboard central post (loading derrick). It was also found that the Prestige was

continuing to spill a considerable quantity of fuel oil.

Also on 17 November, the Guardia Civil searched the room occupied by

the third officer of the Prestige in the Hotel Avenida in La Corua and took away

the ships log.

On the morning of Monday 18 November, the Chinese tug Deda took the

Prestige in tow by the stern, and it was this tug that subsequently directed the

ships course, accompanied by the Ra de Vigo and the Charuca Silveira; the

latter was subsequently replaced by the Alonso de Chaves, and as such the Sertosa

32 and the Charuca Silveira returned to their base, it being apparently the

intention of those in charge of the tug Deda to take the ship to Cape Verde.

On 18 November, at 15:20 hours the Helimer Galicia landed the

Harbourmaster of La Corua, ngel del Real, the Head of Maritime Safety,

Alonso Menca lvarez and the Harbourmasters Office Inspector, Serafn Daz

Regueiro on the Prestige. They had been sent to the ship on the instructions of the

Director-General of the Merchant Marine to recover the documentation that

neither the captain nor the crew of Smit Salvage handed over to the Spanish

authorities, and also to carry out an inspection and try to collect samples of the

cargo. These officials and engineers stayed on the Prestige until 15:52 hours

when, having completed their task, they returned on the Helimer Galicia to La

Corua. The seized documentation, consisting of journals, letters and folders of

various content are listed on page 888.

On its southward passage, the convoy arrived close to waters under

Portuguese jurisdiction. At 23:40 hours of the 18th, the Ra de Vigo reported that

a Portuguese frigate had told them that the tow could not enter the waters of

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Portugals Exclusive Economic Zone, which information was confirmed by the

frigate at 00:00 hours. This forced the ship to alter course (turn and change direction,

said especially of a ship) towards the West.

On 19 November 2002, at 08:00 hours, the Prestige broke in two; at 11:45

hours, the stern section of the Prestige sank at an estimated depth of 3,500 metres;

at 16:18 hours, the bow section of the ship sank at a depth of 3,800 metres and a

distance from land of 138 miles.

From the time when the tow was secured until the ship broke up 155 hours

elapsed in which it was struck by waves between 37,600 and 46,000 times.

Subsequently, the wreckage was inspected by the Spanish authorities,

using the bathyscaphe Nautile, and fuel was extracted from the tanks, as it still

contained a quantity of 16,057 tonnes of product emulsified with water and

323,420 tonnes of free water, which were deposited at the maritime terminal of

the industrial terminal of Repsol YPF in La Corua, where it was treated,

allowing them to obtain usable fuel valued at 2,121,084.15 euros, deposited with

the Court by REPSOL PETROLEO SA on 03/06/2005.

In addition, the bathyscaphe recovered abundant documentation from the

wreckage, which is recorded on page 929 et seq. of the proceedings.

As a consequence of the prolonged, extensive and intense spill of fuel oil,

an extensive area of the North and North-West coast of Spain and the West coast

of France were polluted, and in addition, damage was caused to private and

public installations, as well as losses arising from the closure or reduction of

businesses directly or indirectly related to fishing and shell fishing as well as

causing greatly reduced use of natural areas open for the enjoyment of the general

public with obvious implications for the tourism industry.

The exact quantities of the compensation will have to be fixed in

accordance with criteria to be determined, but certain specific data, at least, is

known, as follows:

I. Specifically, according to official sources, it is estimated that 63,000 tonnes of

fuel oil were spilled from the Prestige, generating 170,700 tonnes of residues

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and some 14,950 tonnes of oil in the two wreck sections of the ship (14,250 in

the bow and 700 in the stern).

II. According to a study carried out by the USC (University of Santiago de Compostela),

2,980 km of coastline were affected by the arrival of the oil spill from the

Prestige, 1,137 beaches were polluted, 450,000 m2 of rock surfaces were

impregnated with tar, 526.3 tonnes of fuel on the floor of the continental shelf,

estimated mortality of 115,000 to 230,000 seabirds, all the marine ecosystems

affected and high content of PAHs (polycyclic aromatic hydrocarbons, which are an organic

compound composed of millions of simple aromatic rings which have combined, and do not contain heteroatoms

or substitutes and which have raised concerns as pollutants because some compounds have been identified as

carcinogenic, mutagenic and teratogenic) in the biota (collection of plant and animal species and other

organisms which occupy a given area) and sediments.

III. The affected coast extends mainly from the mouth of the River Mio in Galicia

to the English Channel, the most affected being the Galician coast (especially

the Costa da Morte, and more specifically the Sisargas Islands, Muxa, Cape

Tourin, Carnota, Corrubedo Natural Park, Finisterre), followed by the

Spanish and French Cantabrian Coast, affecting 13 French departments.

IV. The certified quantification of the costs incurred by the Spanish State total

368,481,562.688652 euros.

V. The certified quantification of the costs incurred by the Government of Galicia

total 145,288,610.51 euros.

VI. The French State calculates its costs and damages in the amount of

67,500,905.92 euros.

VII. Up to 16/01/20032003, more than 2,170 birds were treated in rescue centres,

and in addition 176 birds were released in Portugal and 25 at points in

Galicia, making a total of 201 birds, although the losses of birds and fauna in

general have been extensive and persistent, especially in the SPAs (special

protection area for birds , which is a category of protected area listed by Member States of the

European Union as natural areas of special importance for the conservation of avifauna threatened

by extinction).

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VIII. In Galicia, in addition, some lagoons and a great many natural areas were

affected, notably the Galician Atlantic Islands Maritime-Terrestrial National

Park.

IX. In Cantabria, Asturias and the Basque Country, beaches and natural areas

were also affected.

X. Fishing and shell fishing were compulsorily suspended in Galicia until

17/05/2003.

XI. The private and individual interests of the parties represented in the

proceedings have been quantified in the terms indicated in the factual

background of this judgment.

TWO. The lower court delivered the following judgment: WE FIND:

That we must acquit and do hereby acquit Apostolos Ioannis Mangouras,

Nikolaos Argyropoulos and Jos Luis Lpez-Sors Gonzlez of the crimes against

the environment, damage to protected natural areas and criminal damage of

which they were accused and also acquit Nikolaos Argyropoulos of the crime of

disobedience of which he was also accused, with express award ex officio of two

thirds of the trial costs, and we must convict and do hereby convict Apostolos

Ioannis Mangouras, as criminally liable for a crime of serious disobedience to

authority, to a prison term of 9 months and payment of the remaining third part

of the trial costs, with allowance for the time already served in prison in this case.

It is appropriate to hear the Steamship Owners Mutual Insurance

Association (the London P&I Club) on the destination of the sum of 22,777,986

euros deposited in these proceedings and take it into account to decide what is

appropriate, whether it insists on its distribution or maintains silence, and it will

be informed that this sum is at its disposal, without prejudice to the precautionary

measures that, at the instigation of the parties, might, as the case may be, affect

such deposit.

On 20 December 2013, a document of clarification of the judgment was

issued by Section 1, the operative part of which reads as follows:

16

The corrections to the judgment given on 13/11/2013 are in part justified

and, in consequence, it is appropriate to:

a) Substitute the references to US dollars with regard to the limitation of

civil compensation by what is strictly legal, i.e. 59.7 units of account for the owner

and 135 million units of account for the IOPC Fund.

b) Delete the mention of the lawyer Jaime Acebal Dvila as lawyer of the

Regional Council of Brittany.

c) Delete the mention of the lawyer Mrs Beln Amboade as lawyer of

PROINSA, Depuradora de Mariscos de Lorb S.A. and Juan Cipriano Fernndez

Arvalo.

d) Note that the Regional Council of Brittany, PROINSA, Depuradora de

Mariscos de Lorb S.A. and Juan Cipriano Fernndez Arvalo did not waive the

exercise of civil actions, but expressly reserved the right to exercise such actions.

e) Hold as formalized, in the terms set out in the documents, the

provisional conclusions formulated by PROINSA, Depuradora de Mariscos de

Lorb S.A. and Juan Cipriano Fernndez Arvalo.

f) Include in the summary of accusations formalized by Cofradas de

Pescadores Santo ngel de la Guarda of Viavlez, Asturias, the reference and

others.

g) Rectify the omission consisting of not having included the express

petition for an order for costs for private accusations, formalized by the defence

of Nikolaos Argyropoulos.

h) Rectify the omission consisting of not having included the express

petition for a finding of the civil liability of the entity The London Steamship

Owners Mutual Insurance Association LTD and the company Mare Shipping".

i) Substitute the obligation of the accused Apostolos Ioannis Mangouras

to report every 15 days to the police authorities by one of every two months from

the last time of reporting in accordance with the system applicable up to now.

There are no grounds for any other of the clarifications/rectifications

requested by the prosecutors, Mr Castro Bugallo and Mrs Gmez Corts.

17

Neither are there grounds for cancelling the bail bond of 3,000,000 euros

legally constituted to obtain the provisional liberty of the accused Apostolos

Ioannis Mangouras.

The Court considers that art. 856 of the Criminal Procedure Act

(LECrim) applies strictly and literally, such that the time limit for the filing of a

cassation appeal will be calculated from the last notification of the judgment.

THREE. The judgment having been notified to the parties, appeals were

filed by the GOVERNMENT OF GALICIA; the PUBLIC PROSECUTOR, the

accused APOSTOLOS IOANNIS MANGOURAS, NIKOLAOS

ARGYROPOULOS, the REGIONAL COUNCIL OF BRITTANY, ISIDRO DE

LA CAL FRESCO S.L., LUSO-HISPANA DE ACUICULTURA S.L.,

CALTRAN SAU, PASTEURIZADOS DEL MAR S.L., PROMOTORA

INDUSTRIAL SADENSE S.A., UNIPERSONAL (PROINSA), MR JUAN

CIPRIANO FERNNDEZ AREVALO, DEPURADORA DE MARISCOS DE

LORBE S.A., the GENERAL STATE ADMINISTRATION, the "ARCO IRIS"

ECOLOGICAL AND PACIFIST ASSOCIATION, AMEGROVE SOCIEDAD

COOPERATIVA GROVENSE DE MEJILLONES S.A., PATRARCIS S.L., the

NUNCA MAS CITIZENS PLATFORM, the FRENCH STATE,

FRIGORFICOS RIBADEO S.L., EMEMASA S.A., the FRENCH

MUNICIPALITIES OF CAPBRETON and OTHERS, LUCA AN VERES

and forty others and the REGIONAL COUNCIL OF VENDE which were

admitted as filed. The certificates required to substantiate them and allow their

admission were submitted to this Second Chamber of the Supreme Court, and the

written appeals form part of the court roll, with the exception of those filed by

FRIGORFICOS RIBADEO S.L., EMEMASA S.A., the FRENCH

MUNICIPALITIES OF CAPBRETON and OTHERS, LUCA AN VERES

and forty others and the REGIONAL COUNCIL OF VENDE, which are

declared void. The following is a presentation of the appeals submitted in the order

of inclusion in the Roll of this Court.

18

FOUR. The representative of the GOVERNMENT OF GALICIA, bases

its appeal on the following GROUNDS FOR CASSATION:

One. For violation of the constitutional precepts under the umbrella of

the provisions of art. 852 LECrim, in relation to art. 5.4 of the Organic Law on

the Judiciary(LOPJ).

Two. For violation of the constitutional precepts under the provisions of

art. 852 LECrim, in relation to art. 5.4 of the Organic Law on the Judiciary

(LOPJ).

Three. For breach of law under art. 849.1 LECrim1, for having infringed

criminal precepts of a substantive character, and legal rules of like content which

should be observed in application of the criminal law, and environmental

protection laws, based on the facts that are declared proven in the appealed

judgment.

Four. For breach of law under art. 849.1 LECrim, for having infringed

criminal precepts of a substantive character, and legal rules of like content which

should be observed in application of the criminal law, and environmental

protection laws, based on the facts that are declared proven in the appealed

judgment.

Five. For breach of the law under art. 849.1 LECrim, for having infringed

criminal precepts of a substantive character, and legal rules of like content which

should be observed in application of the criminal law, and environmental

protection laws, based on the facts that are declared proven in the appealed

judgment.

1 TRANSLATORS NOTE: Article 949, LECrim:

It will be understood that there has been a breach of the law for the purposes of filing an appeal in cassation:

1. When, given the facts that have been declared proven in the decisions set out in the previous two articles, a

criminal rule of substantive character or other legal rule of the same character which must be observed in the

application of the criminal law have been breached.

2. When there has been an error in the appraisal of the evidence, based on documents in the case file which show

the error of the judge, when not contradicted by other evidence.

19

FIVE. The PUBLIC PROSECUTORs OFFICE bases its appeal on the

following GROUNDS FOR CASSATION:

One. Error in the evaluation of the evidence under art. 849.2 LECrim.

Two. For breach of law, under art. 849.1 LECrim, for wrongly failing to

apply articles 325, 326 b) and e) and 338 (crime against the environment), 73, 77,

266.2.4, 263 and 264.4 (real complicity in criminal damage) all of the Criminal

Code, for incorrect application of art. 556 (serious disobedience to authority) in

the same body of law.

Three. For breach of law under art. 849.1 LECrim, for wrongly failing to

apply articles 109, 110, 113, 115 and 116 (civil liability) all of the Criminal Code,

in relation to art. 556 (serious disobedience to authority) in the same body of law.

Subsidiary ground for the foregoing and in the event that it is refused.

SIX. The trial representation of the accused, APOSTOLOS

MANGOURAS, bases its appeal on the following GROUNDS FOR

CASSATION:

One. Under art. 849.2 LECrim, arguing that there has been error in the

evaluation of the evidence.

Two. Under art. 849.1 LECrim, in application of art. 556 (serious

disobedience to authority) of the Criminal Code (CP).

Three. Subsidiary to the two foregoing, under art. 849.1 LECrim, for

incorrect application of art. 556 CP.

Four. Of subsidiary character to the three foregoing, under art. 849.1

LECrim, for incorrect application of arts. 123 and 124 CP in relation to art. 240

LECrim.

SEVEN. The trial representation of the REGIONAL COUNCIL OF

BRITTANY bases its appeal on the following GROUNDS FOR CASSATION:

One. For breach of law, under paragraph one of art. 849 LECrim, for

infringement of the following precepts:

20

Arts. 325 and 326 b), d) and e) CP in relation to art. 331, 338 and 5 of the same

Code; Art. 267 CP.

Arts. 194, paragraphs 1, 2 and 3b), Arts. 211.1) and 4), Arts. 220 and 221, all

of the United Nations Convention on the Law of the Sea (BOE 14.02.1997,

date of entry into force in Spain).

Article 4 and Annex II, Articles 3.1 and 7 OSPAR Convention for the

Protection of the Marine Environment of the North-East Atlantic, adopted in

Paris on 22 September 1992 which generally entered into force and in Spain on

25 March 1998, in accordance with article 29 thereof (Decision 981249/EC of

the Council of 7 October 1997, relating to the signature on behalf of the

European Community).

Art. 5.1h) of the International Convention on Oil Pollution Preparedness,

Response and Co-operation, adopted in London on 30 November 1990, ratified

by Spain on 3 December 1993 (BOE No. 133 of 5 June 1995) and, in relation

to art. 6.1 b) of the said Convention, the Order of 23 February 2001, approving

the National Accidental Marine Pollution Contingency Plan (art. 2.6.1 in

relation to 3.1 of Part 33; 2.2.1 a); 2.5.1 and 2.5.2; 3.3.1; 3.4; 3.6; 3.8.4 end:

"Chart of general actions and decisions").

Two. By error in the evaluation of the evidence, under paragraph 2 of art.

849 LECrim, based on documents contained in the court roll which show the error

of the judge not contradicted by other evidence.

Three. By procedural flaw, there being a manifest contradiction between

the facts declared proven in the judgment, through the application of the

provisions of art. 851.1 LECrim.

EIGHT. The representation of the companies ISIDRO DE LA CAL

FRESCO, S.L., LUSO-HISPANA DE ACUICULTURA, S.L., CALTRAN,

S.A.U. and PASTEURIZADOS DEL MAR, S.L., bases its appeal on the

following GROUNDS FOR CASSATION:

One. Violation of the constitutional precept under art. 852 LECrim and

art. 5.4 LOPJ, by infringement of art. 24.1 of the Spanish Constitution (CE), right

21

to effective judicial protection, and art. 24.2 CE, right to public process with all

guarantees, in relation to art. 9.3 CE, on prohibition of all arbitrariness.

Two. Breach of law under art. 849.2 LECrim, on there having occurred an

error in the evaluation of the documentary evidence in the court roll, which show

the judges error not contradicted by other evidence.

Three. Breach of law under art. 849.1 LECrim, it having been infringed

by the failure to apply arts. 325, 326e) and 338 CP of 1995 and the secondary

legislation thereto.

Four. Procedural flaw under art. 851.3 LECrim, in relation to art. 742

LECrim, for not having in any way resolved in the judgment all the points and

questions which were the subject of the accusation, specifically with regard to the

civil liability deriving from the criminal offence.

NINE. The representation of the company PROMOTORA INDUSTRIAL

SANDESE, S.A. Unipersonal (PROINSA), MR JUAN CIPRIANO

FERNNDEZ ARVALO and DEPURADORA DE MARISCOS DE LORB,

S.A., bases its appeal on the following GROUNDS FOR CASSATION:

One. For breach of law under paragraph one of art. 849 LECrim, for

having infringed the following precepts:

Arts. 325 and 326 b), d) and e) of the CP in relation to arts. 331, 338 and 5 of

the same Code; Art. 267 of the CP.

Arts. 194, paragraphs 1, 2 and 3b), Arts. 211.1) and 4), Arts. 220 and 221, all

of the United Nations Convention on the Law of the Sea (BOE 14.02.1997,

date of entry into force in Spain).

Article 4 and Annex II, Articles 3.1 and 7 OSPAR Convention for the

Protection of the Marine Environment of the North-East Atlantic, adopted in

Paris on 22 September 1992 which generally entered into force and in Spain on

25 March 1998, in accordance with article 29 thereof (Decision 981249/EC of

the Council of 7 October 1997, relating to signature on behalf of the European

Community).

22

Art. 5.1h) of the International Convention on Oil Pollution Preparedness,

Response and Co-operation, adopted in London on 30 November 1990, ratified

by Spain on 3 December 1993 (BOE No. 133 of 5 June 1995) and, in relation

to art. 6.1 b) of the said Convention, the Order of 23 February 2001 approving

the National Accidental Marine Pollution Contingency Plan (art. 2.6.1 in

relation to 3.1 of Part 33; 2.2.1 a); 2.5.1 and 2.5.2; 3.3.1; 3.4; 3.6; 3.8.4 end:

"Chart of general actions and decisions").

Two. By error in the evaluation of the evidence, under paragraph 2 of art.

849 LECrim, based on documents contained in the pleadings which show the error

of the judge not contradicted by other evidence.

Three. By procedural flaw, there being a manifest contradiction between

the facts declared proven in the judgment, through the application of the

provisions of art. 851.1 LECrim.

TEN. The Public Prosecutor representing the GENERAL STATE

ADMINISTRATION, bases its appeal on the following GROUNDS FOR

CASSATION:

One. Under art. 849.1 LECrim for breach of law, by error in the criminal

qualification of the facts as constituting a crime against natural resources, defined

in art. 325, 326 e) and 331 CP, in relation to the International Convention for the

Safety of Life at Sea and, specifically, Regulation 3-4 of Part A-1 and the

Guidelines of the IMO Maritime Safety Committee approved by resolution MSC

35 (63) (published in the BOE on 25 January 1996).

Two. For breach of law, under art. 849.1 LECrim, and with subsidiary

character with respect to the foregoing ground, considering that the facts declared

proven with respect to the accused APOSTOLOS MANGOURAS, do not

constitute criminal damage, the judgment is in breach of and does not correctly

apply arts. 263, 264.4 and 267 CP.

Three. For breach of law, under art. 849.1 LECrim, because, by acquitting

the accused APOSTOLOS MANGOURAS and those subject to civil liability,

directly deriving from the offence and subsidiary thereto, the judgment is in

23

breach of arts. 109, 110, 113, 115, 116 and 117 CP, and arts. 5 and 7 of the

International Convention on Civil Liability for Oil Pollution Damage, 1992, all in

relation to art. 556 of the same legal text and arts. 325, 326 e), 338 and 331 CP,

or subsidiary to that, arts. 263, 264.4 and 267 CP.

Four. For breach of law, under art. 849.1 LECrim, because the judgment

infringes art. 109 CP.

Five. For breach of law, under art. 849.1 LECrim, because in not

pronouncing on the civil liability of the shipowner, the insurance company and

the IOPC Fund, the judgment infringes and incorrectly applies arts. 1, 2, 3, 4, 5,

6, 7, 8, 9 and 10 of the International Convention on Civil Liability for Oil Pollution

Damage, 1992 and arts. 1, 2, 3, 4, 6, 7 and 8 of the International Convention on

the Establishment of an International Fund for Compensation for Oil Pollution

Damage, 1992.

ELEVEN. The representation of the "ARCO IRIS" ECOLOGICAL AND

PACIFIST ASSOCIATION, bases its appeal on the following GROUNDS FOR

CASSATION:

One. Violation of the constitutional precept under art. 5.4 LOPJ, in relation

to the constitutional right to effective judicial protection (art. 24); and the principle

of legality and legal certainty set out in art. 9.3 of the Spanish Constitution (CE);

or, alternatively, under art. 849.1 LECrim, in relation to the criminal definitions

in arts. 325, 326 e), 311 and 338 CP, in relation to art. 12 of the same body of law.

Two. Violation of the constitutional precept under art. 5.4 LOPJ in relation

to the constitutional right to effective judicial protection (art. 24.1); and in relation

to art. 120 of the same body of law, in failing in the appealed judgment to give

reasons in reply to the allegations of this appellant.

It does not formalize grounds Three and Four.

Five. Procedural flaw under art. 851.3 LECrim.

24

TWELVE. The representation of the companies AMEGROVE SOC.

COOP. GROVENSE DE MEJILLONES S.A. and PATRARCIS S.L., bases its

appeal on the following GROUNDS FOR CASSATION:

One. Breach of law under the provisions of art. 852 LECrim, as permitted

by art. 5.4 LOPJ for violation of art. 24.1 CE.

Two. Breach of law under the provisions of art. 849.1 LECrim for

incorrect application of art. 325 in relation to arts. 330 and 338 CP.

Three. Breach of law under the provisions of art. 849.1 LECrim for

incorrect application of art. 325 in relation to arts. 330 and 338 CP and, in

consequence, also arts. 109, 110, 111, 115, 116 and 117 CP.

THIRTEEN. The representation of the NUNCA MAS PLATFORM,

bases its appeal on the following GROUNDS FOR CASSATION:

One. Procedural flaw under the provisions of art. 851.2 LECrim, for

failure to state expressly the proven facts in the record containing the judgment.

Two. Procedural flaw. This ground is withdrawn.

Three. Under art. 849.2 LECrim, for error in evaluation of the evidence,

based on the document titled "Exercise Corua 2001", pages 5,175 to 5,183 of the

court documents, which is not contradicted by other evidence.

Four. Breach of law under the provisions of art. 849.1 LECrim, for

incorrect application of art. 325, in relation to arts. 326, 330 and 338 CP.

Five. Breach of law under the provisions of art. 852 LECrim, in

accordance with art. 5.4 LOPJ, for breach of the right to a trial with all the

guarantees established in art. 24.2 CE.

FOURTEEN. The representation of the FRENCH STATE, bases its

appeal on the following GROUNDS FOR CASSATION:

One. Breach of law under art. 849.1 LECrim for incorrect application of

arts. 325 and 326 e) in relation to art. 338 CP, precepts which contain the definition

of crime against natural resources and the environment.

25

Two. Under art. 849.1 LECrim, for incorrect application of the law on civil

liability (breach of arts. 109, 110 and 116 CP and the International Convention on

Civil Liability for Oil Pollution Damage, 1992).

Three. Violation of the constitutional precept under art. 5.4 LOPJ and art.

852 LECrim.

FIFTEEN. The representation of the accused NIKOLAOS

ARGYROPOULOS, bases his appeal on the following GROUNDS FOR

CASSATION:

One. Procedural flaw under paragraph 3 of art. 851 LECrim.

Two. Violation of the constitutional precept under art. 5.4 LOPJ and 852

LECrim infringement of the right to effective judicial protection (art. 24.1 CE),

violation of art. 9.3 CE referring to the prohibition of arbitrariness and violation

of art. 120.3 CE relating to justification of judgments.

Three. For breach of law under art. 849.1 LECrim for having infringed,

by failing to apply, art. 240.3 LECrim.

SIXTEEN. Having served notice of the appeals filed, written submissions

were presented by the appellants and respondents as follows:

With regard to the service of notice of the appeal filed by the companies

ISIDRO DE LA CAL FRESCO, S.L. and others, the Prosecutor requests that

ground three should be admitted and partially upheld, and the rest of the appeal

should not be admitted or alternatively refused. In the appeal filed by the

companies PROINSA and others, he requests that ground one should be admitted

and partially upheld. With regard to the appeal filed by the companies

AMEGROVE SOC. COOP. and others, he requests that grounds two and three

should be admitted and partially upheld. With regard to the appeal filed by the

REGIONAL COUNCIL OF BRITTANY, he requests that ground one should be

admitted and partially upheld. With regard to the appeals filed by APOSTOLOS

MANGOURAS and NIKOLAOS ARGYROPOULOS he requests that they

should not be admitted or disallowed. With regard to the appeal filed by the

26

GOVERNMENT OF GALICIA he requests that grounds three and five should be

admitted and partially upheld. With regard to the appeal filed by the NUNCA

MAS PLATFORM he requests that it should not be admitted. With regard to the

appeal filed by the FRENCH STATE he requests that grounds one and two should

be admitted and partially upheld. With regard to the appeal filed by the ARCO

IRIS ECOLOGICAL AND PACIFIST ASSOCIATION he requests that ground

one should be admitted and partially upheld. And with regard to the appeal filed

by the Public Prosecutors Office in representation of the GENERAL STATE

ADMINISTRATION he requests that grounds one, two, three, four and five

should be admitted and partially upheld.

The trial representation of NIKOLAOS ARGYROPOULOS, upon service

of notice of the appeals, requests that the appeal filed by the French State not be

admitted.

The trial representation of the companies ISIDRO DE LA CAL FRESCO,

S.L., LUSO-HISPANA DE ACUICULTURA, S.L., CALTRAN, S.A.U., and

PASTEURIZADOS DEL MAR, upon service of notice of the appeals filed,

challenges the admission of the appeals in written documents formalized by the

Public Prosecutors Office and the accused APOSTOLOS MANGOURAS.

The representation of the GOVERNMENT OF GALICIA, submitted a

document challenging the appeal filed by APOSTOLOS IOANNIS

MANGOURAS.

The representation of APOSTOLOS MANGOURAS challenged the

appeals filed by the Public Prosecutors Office; the Public Prosecutor in

representation of the General State Administration; the French State; the appeal

of the Government of Galicia; that of Amegrove Soc. Coop and others; the appeals

of the Regional Council of Brittany and PROINSA and others; the appeal filed by

Isidro de la Cal Fresco S.L., and others and, lastly, the appeal of the Arco Iris

Ecological and Pacifist Association.

The representation of MARE SHIPPING INC. challenged the appeals filed

by the Public Prosecutors Office; the Public Prosecutor in representation of the

27

General State Administration; the French State; the Government of Galicia; by

Isidro de la Cal Fresco S.L. and others; and Amegrove Soc. Coop and others.

The representation of the 1992 IOPC Fund, challenged the cassation

appeals filed by the Public Prosecutors Office; the Spanish General State

Administration; the Government of Galicia; the French State; by Isidro de la Cal

Fresco S.L. and others; the Regional Council of Brittany (France); and Amegrove

and others.

The representation of the Municipal Council of Biscarrosse lodged a

statement in which it joins the appeal filed by the French State.

The representation of the ARCO IRIS Ecological and Pacifist Association

lodged a statement withdrawing the accusation under art. 882 LECrim.

The Public Prosecutor in representation of Mr Jos Luis Lpez-Sors,

lodged a written statement in which he challenged the appeals filed by PROINSA,

the Regional Council of Brittany, the Nunca Mas Platform, Isidoro de la Cal and

others, Amegrove Soc. Coop and others, and requested that the appeal filed by the

ARCO IRIS Ecological and Pacifist Association should not be admitted.

The Public Prosecutor in representation of the General State

Administration lodged a written statement in which he joined the appeals of the

Public Prosecutors Office, and the Government of Galicia, and stated that he was

instructed in the appeal filed by the French State and challenged the appeals filed

by Mr Argyropoulos and Mr Apostolos Mangouras.

SEVENTEEN. Following service of notice, the hearing was held on 29

September 2015, attended by the Lawyers of the appellants. The Public

Prosecutors Office submitted a statement in which it requests correction

of the error in the petition in its appeal for the judgment to be overturned

and the proceedings returned to the Audiencia Provincial, and that another

should be produced with an evaluation of the five documents mentioned

in the written appeal. The defence of the Regional Council of Brittany

declined to comment. Three orders to defer judgment were issued, the first

28

on 13 October 2015, for a further 30 days, and the following two on 25

November and 17 December 2015 for 15 days each.

II. GROUNDS IN LAW

ONE. The Audiencia Provincial of La Corua, on 13 November 2013

delivered a judgment which acquitted Apostolos Ioannis Mangouras and Nikolaos

Argyropoulos, Captain and Chief Engineer of the Prestige, of the crime against

the environment, damage to protected natural areas and criminal damage, and the

latter also for that of disobedience, of which they had been accused. This all

related to the serious impact on the environment and other damage caused as a

result of the oil spill from the oil tanker, Prestige, when on 13 November 2002,

sailing 27.5 miles West of Finisterre, in the maritime corridor known as the Traffic

Separation Scheme, it suffered a fracture in its starboard side. Fuel oil spilled

through this opening until the ship broke in two and sank six days later on the

nineteenth of November, when it was 138 miles from the coast. The spill was

officially estimated at some 63,000 tonnes of fuel oil.

The Audiencia Provincial of La Corua also acquitted Jos Luis Lpez-

Sors of crimes against the environment, damage to protected natural areas and

criminal damage. As Director-General of the Merchant Marine at the time of the

incident, he took charge on behalf of the Spanish Administration of management

and responsibility for the operations to assist the ship and distance it from the

coast.

Finally, the court convicted Captain Mangouras of the offence of

disobedience to the Spanish Maritime Authority, for his reluctance and refusal to

accept a tow after he was repeatedly ordered to do so until some two and a half

hours later.

29

Appeals were filed against this judgment by the Public Prosecutors

Office, the General State Administration, the Government of Galicia and the

French State, the appeal being joined by the Municipal Council of Biscarrosse,

which claimed in essence the conviction of Apostolos Ioannis Mangouras of an

act of criminal negligence against the environment and/or criminal damage and

the corresponding orders of a civil law order, while the French State maintains

justification of conviction for serious negligence and further extends its claim for

conviction to Nikolaos Argyropoulos.

Appeals were also filed by the Regional Council of Brittany; Isidro de la

Cal Fresco, Luso-Hispana de Acuicultura S.L., Caltran, S.A.U and Pasteurizados

del Mar; Promotora Industrial Sadense, S.A. Unipersonal (Proinsa), Juan Cipriano

Fernndez Arvalo and Depuradora de Mariscos de Lorb S.A.; Amegrove

SOC.COOP, Grovense de Mejillones S.A.; and Patrarcis S.L.; and the Arco Iris

Ecological and Pacifist Association. All of these, as well as seeking the conviction

of Captain Mangouras, claim the conviction of Jos Luis Lpez-Sors. Finally, the

Nunca Mas Platform appealed seeking the conviction of the latter.

An appeal was filed by the only person convicted Apostolos Ioannis

Mangouras, who petitions for acquittal and his fellow accused Nikolaos

Argyropoulos who requests an order for costs with respect to the accusations of

recklessness and that of the Spanish State for bad faith.

TWO. The approach of the appeals against the accusations brings us to

the profiles and scope of the possibility of revision on appeal of the acquittal

judgments.

As we stated in judgment 397/2015 of 14 May, when the lower court has

established the proven facts, both objective and subjective, on the basis, in whole

or in part, of personal evidence, the rectification of any of them to construct a new

30

factual account, which gives rise to a conviction or aggravation thereof, requires

a public hearing in which the accused is heard.

Constitutional Court Judgments 154/2011; 49/2009; 30/2010 or 46/2011,

among others, insist that the Court which is to hear an appeal against an acquittal

pronounced by another, must hear the person acquitted in person and directly in a

public hearing in which the adversarial principle is respected, establishing as the

sole exception one that deals exclusively with a point of law which, scrupulously

respecting the proven facts, does not require re-evaluation of the evidence or

persons in the strict sense nor other evidence that the court concerned deems

necessary. In other words, it is not necessary to re-evaluate the objective and

subjective elements of the crime, because the matter to be discussed is merely one

of subsumption in law of some accepted facts. See in this respect, Supreme Court

Judgments STS 1423/2011, 142/2011, 309/2012 of 12 April; 757/2012 of 11

October; 1020/2012 of 30 December; 157/2013 of 22 February 325/2013 of April

and STS 691/2014 of 23 October, among many.

The case law of the Constitutional Court has been evolving since STS

167/2002, as has that of this Chamber, and both, following the ECHR in this

respect, have established severe restrictions on the possibility of rectifying on

appeal the factual elements of acquittal orders to produce a new account of proven

facts to serve as the basis for convicting the person who was acquitted in the lower

court. This case law requires the right to a proceeding with all the guarantees that,

when the questions to be decided affect both the objective and subjective facts,

and it is necessary to resolve them to evaluate personal evidence, this must take

place in the Court which decides the appeal. In consequence, from the perspective

of the right to defence, it is necessary to give the accused acquitted in the lower

court the possibility of being heard directly by the appeal court, in that it is the

first in criminal proceedings to pronounce a conviction against him.

31

In this regard, the ECHR, since the judgment in the case of Ekbatani v.

Sweden of 28 May 1988, has argued that in those cases where the Court hearing

the appeal has to decide on questions of fact and law, generally considering the

question of guilt or innocence, it cannot, for reasons of fair process, adopt a

decision without a direct evaluation of the testimony of the accused who has

denied committing the crime of which he is accused, see among others, ECHR

Judgments of 27 June 2000, Constantinescu v. Romania, s. 55; 6 July 2004,

Dondarini v. San Marino, s. 27; 1 December 2005, Ilisescu and Chiforec v.

Romania, s. 39; 18 October 2006, Hermi v. Italy, s. 64; 10 March 2009, Coll v.

Spain, s. 27; and the abovementioned case, Ekbatani v. Sweden. In the same vein,

among the most recent ECHR Judgments, Marcos Barrios v. Spain, of 21

September 2010 and Garca Hernndez v. Spain, of 16 November 2010; ECHR

25 October 2011, Almenara Alvarez v. Spain; ECHR 22 November 2011,

Lacadena Calero v. Spain; ECHR, 13 December 2011, Valbuena Redondo v.

Spain; ECHR 20 March 2012, Serrano Conteras v. Spain or ECHR of 27

November 2012, Vilanova Goterris and Llop Garca v. Spain. On some occasions,

the ECHR has extended the need for examination to witnesses when their

testimony must be evaluated to resolve facts in dispute.

THREE. This Chamber has unanimously stated that the extraordinary

character of the appeal rules out a court hearing of the accused person who has

been acquitted, since it lacks any legal framework and is hard to reconcile with

the procedural significance of the challenge in the Supreme Court. Thus the

possibility of overturning acquittal decisions on appeal is limited to a dual

assumption with a distinct scope. Firstly, on the grounds of breach of law under

article 849.1 LECrim, with the intervention of the technical defence but without a

personal hearing of the accused. Secondly, when the punitive intent of the

appellant has not obtained any response from the lower court or it has been

arbitrary, unreasonable or absurd, such that it has violated the provisions of

articles 24.1, 9.3 and 120.3 of the Spanish Constitution, with regard to the right to

obtain a reasonable response without any arbitrariness from the public authorities.

32

The revision in the first case under article 849.1 LECrim specifically

consists of correction of errors of subsumption based on the factual elements

reflected in the account of proven facts, without making any new evaluation of

the evidence in the lower court. And this possibility of correction of errors of

subsumption includes errors that affect the interpretation of the nature and

confluence of the subjective elements required by the type of crime applied, when

the revision is effected from a legal perspective without modifying the evaluation

of the factual premises. (In the same vein, see Supreme Court Judgments STS

1014/2013 of 12 December; 122/2014 of 24 February; 237/2014 of 25 March;

309/2014 of 15 April or 882/2014 of 19 December, among others).

What it allows is a legal declaration relating to the subsumption of the

facts which does not require either a re-evaluation of the evidence or a

modification of the proven facts, in other words, when the essence of the

discrepancy between the acquittal judgment and conviction is a strictly legal

question (see, among others STS 500/2012 of 12 June; 138/2013 of 6 February or

717/2015 of 29 January).

In the words of STS 125/2015 of 21 May, we have repeatedly stated that

the limits of our power of revision of acquittal judgments, on appeal on grounds

of breach of law, with the intervention of the technical defence but without a

personal hearing of the accused, specifically consists of the correction of errors of

subsumption based on the factual elements reflected in the account of proven

facts, without making any new evaluation of the evidence in the lower court. And

this possibility of correction of errors of subsumption includes errors that affect

the interpretation of the nature and confluence of the subjective elements required

by the type of crime applied, when the revision is effected from a legal perspective

without modifying the evaluation of the factual assumptions. (In the same vein,

see STS 1014/2013 of 12 December; 122/2014 of 24 February; 237/2014 of 25

March; 309/2014 of 15 April or 882/2014 of 19 December, among others).

33

As the Supreme Court judgments that we have just cited, among others,

explain, the case law of the ECHR allows the revision of acquittal decisions when

the Supreme Court acts within the margins of breach of law, revising purely legal

questions.

The ECHR has discerned the violation of Article 6.1 of the European

Convention on Human Rights when the revision of the conviction involves

modifying the evaluation of the facts, but has considered, conversely, that the

revision of acquittal decisions is admissible even when there is no new hearing of

the accused, if it is exclusively a matter of deciding on a strict question of law, i.e.

modifying the interpretation of the legal provisions applied by the lower court

(ECHR Judgments of 10 March 2009, Igual Coll v. Spain; 21 September 2010,

Marcos Barrios v. Spain; 16 November 2010, Garca Hernndez v. Spain; 25

October 2011, Almenara lvarez v. Spain; 22 November 2011, Lacadena Calero

v. Spain; 13 December 2011, Valbuena Redondo v. Spain; 20 March 2012,

Serrano Contreras v. Spain and 27 November 2012, Vilanova Goterris and Llop

Garca v. Spain; 8 October 2013 Nieto Macero v. Spain; 8 October 2013, Romn

Zurdo and others v. Spain; and EHCR Judgment of 12 November 2013, Valbuena

Redondo v. Spain).

The revision is in accordance with this case law when this Chamber

confines itself to correcting errors of subsumption and establishing uniform

interpretation criteria to ensure legal certainty, predictability of court judgments,

equality of citizens before the criminal law, and unity of the criminal justice

system and criminal procedure, without altering any factual supposition (see

among others ECHR Judgments of 16 December 2008, Bazo Gonzlez v. Spain

or 22 October 2013 Naranjo Acebedo v. Spain).

The constitutional case law pronounced in the same vein (SSTC 153/2011

of 17 October and 201/2012 of 12 November). The judgment of the Full

34

Constitutional Court, No. 88/2013 of 11 April 2013 stated "a violation of the right

to a trial with all the guarantees is ruled out when the conviction or aggravation

on appeal, although not heard in open court, does not derive from an alteration in

the underlying facts on which the lower court sentence is based but strictly on

questions of law (thus, SSTC 143/2005 of 6 June or 2/2013 of 14 January)", and

stressed that "if the discussion in the appeal court deals exclusively with strict

questions of law, it is not necessary to hear the accused in person in a public

hearing, since that hearing could have no impact on the decision that might be

adopted, and to the extent that the discussion is strictly on questions of law, the

hearing of the position of the party can be duly guaranteed by the presence of his

lawyer, which would give effect to the right of defence against the arguments

asserted by the other party (thus, SSTC 45/2011 of 11 April and 153/2011 of 17

October)".

The essential function of this Second Chamber of the Supreme Court, in

which it acts specifically as the higher organ of the criminal justice system in

accordance with its powers under article 123 of the Spanish Constitution, is

precisely what it does through the avenue of breach of law. This allows correction

of errors of subsumption and establishes uniform interpretive criteria in order to

guarantee the unity of the criminal justice system and also the principles of legal

certainty, predictability of judicial decisions and equality of citizens before the

law. All this is without prejudice to the unifying function which, for reasons of

procedural flaw, is imposed on the criminal justice process.

In the function of safeguarding fundamental rights, which is also a

function of this primary appeal court, this Chamber does not, however, act as the

supreme organ, since this is determined by the case law of the Constitutional

Court, the supreme interpreter of the Constitution, which on this subject can revise

its resolutions (articles 123 and 161b CE). This revision does not extend

constitutionally to the interpretation of the ordinary criminal law.

35

It is therefore very pertinent that the Supreme Court can carry out this

unifying function effectively, both in circumstances where the sentencing organs

incorrectly interpret the classification of the criminal offence to the detriment of

the guilty person and when they do so to the detriment of the victims or injured

parties.

It is precisely in this second sphere (correction of erroneous interpretation

of classes of criminal offence to the detriment of the victims or injured parties),

which is absolutely necessary for reasons of legal certainty and to ensure the

equality of citizens before the law, that the essential difference between the

jurisdiction of this Court and that of the Constitutional Court lies. Since the latter,

as a general rule, can only correct cases of overstepping the boundaries of the

offence through the recourse of appeal for violation of the principle of criminal

legality, but in no circumstances cases of incorrect application of the criminal law,

which only violates the principle in question by defect.

FOUR. The possibility under article 849.2 LECrim of rectifying the

proven fact with additions or deletions based on certain of the documents in the

case file and which show the error of the judge has been inherent in the

meaning of the appeal in cassation. However, it should be borne in mind that the

evaluation of the documents in such an appeal process cannot be understood

without the final part of article 849.2. This requires that these documents are

not contradicted by other evidence. This means that the approach of the

Appeal Court to the evaluation of the document on which it is sought to base the

error made in the lower court can only be done in comparison with other pieces

of evidence, including, and it could not be otherwise, the result produced by the

personal evidence given in the trial. This therefore falls fully within the territory

of the consolidated case law of the Constitution, the ECHR and this Court on

evaluating personal evidence, even if by mere comparison, to conclude on the

sufficiency of evidence in the document invoked, which were not witnessed by

36

the judicial body which is to overturn the acquittal judgment (see, among others,

STS 976/2013 of 30 December; 146/2014 of 14 February or 374/2015 of 13 May).

In the words of STS 70/2014 of 3 February, in reality it can be

emphatically affirmed that it is not possible on appeal under article 849.2 LECrim

to transmute an acquittal (even partial) into a conviction.

FIVE. The other possibility for revision of acquittal judgments on appeal

arises when the punitive claim of the appellant has not received any response in

the lower court or it was arbitrary, unreasonable or absurd, such that it breached

the requirements of articles 24.1, 9.3 and 120.3 of the Spanish Constitution, with

respect to the right to obtain a reasonable response with prohibition of any

arbitrariness by the public authorities (STS 178/2011 of 23 February; 631/2014 of

29 September or 350/2015 of 21 April).

This Chamber has recognized the distinction between the effects of the

right to effective judicial protection and the presumption of innocence, in the sense

that the right to effective judicial protection extends only to the sufficiency and

correction of the arguments used to affirm or refute the existence of the reasons

on which the acquittal or conviction is based, but not the existence or otherwise

of such reasons. Thus the breach of the right to presumption of innocence for

absence of a reason to convict supposes the acquittal of the accused, while when

there is a breach of effective judicial protection, what is required is to issue a new

judgment based on rational and not arbitrary rules (STS 178/2011 of 23 February

and 631/2014 of 29 September). In any case, it is necessary to clarify that a

significant absence of justification which does not relate to the evaluation, but the

confluence of sufficient evidence to justify the conviction, constitutes, in reality,

a breach of the right to presumption of innocence which must directly determine

the acquittal.

37

However, this Chamber has also cautioned that it cannot recognize the

recourse to effective judicial protection of inverted presumption of innocence in a

ground of appeal, as this puts this fundamental right at the service of the accusers,

public or private, to the prejudice of the accused citizens for whom it has been

established in the Constitution as the basic cement of our entire criminal justice

system (see, among others, STS 892/2007, with reference to the STS of 4 March

2004 and STS 411/2007 or the most recent STS 631/2014 of 29 September;

189/2015 of 7 April; 209/2015 of 16 April or 246/2015 of 28 April).

It is a principle also expressed by the Constitutional Court, which stated

that just as there does not exist a principle of inverted legality which grants the

accuser a right of criminal conviction when the legal principles are satisfied (STC

41/1997of 10 March, F. 4), neither does there exist a kind of right to inverted

presumption of innocence in favour of the accuser, which requires the finding of

criminal conduct when that is the most reasonable consequence of the evidence

produced (STC 141/2006, FJ 3).

SIX. The alleged lack of rationality in the evaluation, in breach of

effective judicial protection, cannot be identified with the personal disagreement

of the accusing appellant who postulates his personal evaluation of the evidence

based on his logical interest (see, among others, STS 350/2015 of 21 April).

Neither can the same parameters be applied in the evaluation of

arbitrariness in the grounds for acquittal as for conviction, because that would

mean violating the basic principle of our criminal justice system under which any

accused person is, as a matter of principle, innocent, and both insufficiency of

evidence, in the objective sense, and the insufficient power of the evidence

produced to allow the court to convict, both work in favour of innocence, provided

that the doubt of the lower court is reasonable to some minimal degree.

38

The strength of the constitutional principle of presumption of innocence,

which must take precedence over any burden of proof and grounds for conviction,

does not exist as a counterweight to the arguments when it is a case of delivering,

for insufficient evidence to convict, an acquittal judgment. Thus the right to

effective judicial protection invoked by the State, as holder of the ius puniendi,

to revoke an acquittal judgment, only pertains in absolutely exceptional

circumstances, and cannot be construed by inverting in a speculative manner the

arguments relating to the reasonableness of the evaluation used in the sphere of

the fundamental right to the presumption of innocence.

In conclusion, in cases where the irrationality of the evaluation acquires

such weight as to breach the effective judicial protection of the person it seeks to

convict, this Appeal Court cannot substitute the lower court in the evaluation of

evidence that it has not witnessed, thus the consequence of the said breach cannot

be other than nullity of the actions and return to the lower court for a re-trial.

The possibility of annulment of the judgment based on a potential breach

of the right to effective judicial protection is subject to an absolutely arbitrary

interpretation of the evidence. A mere discrepancy in the evaluation does not

suffice. It must be absolutely irrational or absurd.

And it is from this perspective that the appeals filed with respect to the

challenges to the judgment issued by Section 1 of the Audiencia Provincial of La

Corua, which is the subject of the challenge, must be approached.

ACCUSATION AGAINST APOSTOLOS IOANNIS MANGOURAS.

SEVEN. As we have indicated, all the accusations under the appeal, with

the exception of the Nunca Mas Platform, seek the conviction of the accused

Apostolos Ioannis Mangouras for criminal negligence against the environment

and/or damage to protected areas and criminal damage. Only the appeal filed by

39

the French State envisaged a possible action for serious negligence, although its

plea for conviction specifically mentions only criminal negligence.

However, in the appeal hearing, the Prosecutor modified his claims in the

appeal. His appeal had been based on five grounds, a first which denounced error

in the evaluation of the evidence with the support of article 849.2 LECrim under

which he requested a modification of the account of proven facts, and four others

of breach of law under paragraph 1 of the same provision. The plea was for a clear

conviction of the accused, Mr Mangouras.

When he intervened in the hearing, he modified his claims. This was not

merely in order to rectify a material error in the written submission in the

proceedings, which was easily detectable. It was a far-reaching modification as,

relying on the case law of this Chamber in cases of lack of justification, he

requested annulment of the appealed judgment and return of the case to the

sentencing court so that the same judges might issue a new judgment, taking into

consideration and, in accordance with article 741 LECrim, evaluating in full

awareness the five documents used in our appeal statement as a basis for the first

of its grounds, filed under article 849.2 LECrim.

This claim was submitted out of time and, were it to succeed, might

preclude the ability of the accused and civilly liable persons to defend themselves,

as submitted by the defence of the accused, Mr Mangouras, in the records of the

proceedings, in objecting to the appeals on the basis that the claims were out of

time.

The involvement of the parties in the hearing held in the framework of

article 896 LECrim must focus on the most relevant elements or points in the

appeal statements, joining or challenging them, without consideration of new

questions, other than those introduced in due time, in respect of which the affected

parties have not been able to defend themselves. This is required by the principle

40

of equality of arms which governs the criminal process including in the appeal

phase, and is demanded by the need to safeguard the adversarial principal and

bound up with the requirement of procedural good faith (article 11 LOPJ).

Neither should the viability of the change introduced by the Public

Prosecutor on the basis of a new fact, which might have had a significant impact

on the approach taken up to that time by the Public Prosecution Service, be

recognized. It alluded in the hearing to changes in the case law of this Chamber,

although it based the written statements in this case on previous decisions. Thus

it based its claim on the case law established by this Chamber in judgment

334/2014 of 14 October (this should be understood as STS 704/2014 of 24

October delivered in appeal 334/2014) decision which is a compendium of the

case law reiterated by the Court in previous judgments (STS 545/2010 of 15 June,

480 and 561, both of 2012, and 20 May and 3 July respectively, and 62/2013 of

29 January). In other words, it is not even appropriate to consider the effects of

a possible change in the case law when alleging a case law formed prior to the

formulation of the appeals.

EIGHT. In short, what the Public Prosecutor now complains about is the

lack of justification for the appealed decision, in particular concerning the

documents on which it based its first ground for appeal under article 849.2

LECrim.

1. Printed document dated 16 May 2002 and signed by the accused, Mr

Mangouras. This document is contained on page 42,216 of the principal case and

contains the results of internal inspections of the ballast tanks and cargo of the

Prestige carried out by the accused.

2. Original of the logbook or navigation log of the Prestige, on page 7 of

which appears the decision of the former captain, Mr Kostazos to relinquish

command of the ship due to its poor condition. This document was written in

41

Greek and signed by Mr Kostazos on 23 July 2002 and its translation into Spanish

appears on page 97,220 of the principal case.

3. Original of the logbook or navigation log of the Prestige, in which on

pages 45 and 46 the former captain of the Prestige, Mr Kostazos, reiterated his

decision to relinquish command of the ship due to the many defects of all kinds

that it presented. This document was written in Greek and signed by Mr Kostazos

on 28 August 2002 and its translation into Spanish appears on page 97,234 of the

principal case.

4. Original of the fax sent from the Prestige on 12 September 2002 by the

ships Chief Engineer, Mr Argyropoulos, addressed to the operators in which, as

a professional, he listed numerous defects found in the ships machinery at that

date. The document is contain