The Supreme Court allows pirating on the high seas to go unpunished: the Vidal clan escapes justice
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The Civil Guard estimates the Galician family’s booty of Antarctic hake to be worth €86 million. Interpol, Australia and New Zealand helped Spain in the failed operation
10.02.2017 – 05:00 H.
The Vidals are a legend of the seas. For Australia, New Zealand, Interpol and the Spanish Civil Guard, they are among the biggest pirate fishing clans in the world. For years they have caught black hake in the protected zone of the Antarctic, fiercely clashing with patrol vessels from the above-mentioned countries. But their luck seems to have changed in 2015, when, following an order by the National Court, they were arrested and accused of illegal fishing, criminal organisation and money laundering. But when the Vidals fall, they usually land on their feet. Last December, the Supreme Court put a stop to the entire investigation claiming they could not be prosecuted for illegal fishing in international waters. One magistrate issued a dissenting opinion pointing out that the unusual and unprecedented outcome would equate it to allowing Spaniards to shoot immigrants in the high seas. With the summary proceedings and using the 5,000 pages of the 17 volumes of documentation, El Confidencial reconstructed one of the largest operations against pirate fishing in the world – and its abrupt end.
Let’s go back to January 2015. It is an austral summer, and three boats linked to the Vidals – the Songhua, the Yongding and the Kunlun – are doing what they have always done: fishing for prized toothfish. They’ve been fishing there for years. They are ragged-looking ships that have changed their names and flags so many times that it’s hard to keep track of them. They are in an area protected by the CCAMLR – the Convention on the Conservation of Antarctic Marine Living Resources – but they have fished there before. They sail under the flag of Equatorial Guinea and they are formally owned by Panamanian companies. In practice, it is as though they are fishing in no man’s land. But this time, ecologists from the Sea Shepherd – patrol boats from New Zealand and Australia – are tracking them.
On January 7, 2015, and according to Interpol, “a boat from the Royal Navy Patrol of New Zealand caught the Kunlun fishing illegally in the area regulated by the CCAMLR. At the time of its detection, the Kunlun was hauling in gillnets laden with toothfish (Dissostichus). The use of gillnets is prohibited in the area regulated by the CCAMLR. When the patrol boat approached the Kunlun, its crew continued working and gave no sign that they were going to stop fishing and leave the area.”
The following day, the Kunlun sent an email from the waters of the Antarctic to the Ribeira office of Ángel Vidal Pego, known as ‘Nano’, the son of Antonio Vidal Suárez who is the patriarch of the family, aka ‘Tucho el Coyo’. “A zorra sigue o costado, aproveché que se separó un poco y arriamos baliza vamos largando la 1a de 3 y de momento no se enteró, piensa que vamos capeando proa al viento a 4 nudos. un saludo”. The Coast Guard, that later intercepted the messages, translated them: When referring to the ‘zorra’, they are speaking of the New Zealand patrol boat the Wellington, the NGO Sea Shepherd’s Bob Barker or Sam Simon boats, or other vessels in the area such as the Aurora Australis, and that they understand that their fishing operation might be at risk.
The boats fly Equatorial Guinean flags and are registered in Panama. The Civil Guard believes they are controlled by “members of the Vidal family clan”.
On February 26, 2015, a patrol from New Zealand boarded the Kunlun. Thailand later reported that 182 tonnes of deep-sea hake were in its hold. Though the ship’s top crew members are Galician, the Kunlun belongs to the Panama-based Stanley Management LTD company. When they tried to speak with the captain, they were given the runaround. “The captain of the Kunlun stated that they were fishing rabbitfish, crabs and other species with nets around 3-4 miles in length […], that they could go to any country in Africa and that they were carrying out ‘experimental fishing’. In the following days, the New Zealand patrol boats took photos of the Kunlun’s fishermen pulling in large black hake that had been trapped in the nets. “I see a large fish that I have identified as Antarctic black hake in the nets. It has been harpooned by the crew.” “I see another large black hake that required three people, each with a harpoon, to haul it over the side of the boat,” wrote Alan Drake, a New Zealand fisheries observer, in his diary.
The patrols’ approaches and boardings didn’t affect the Vidals. However, a worldwide operation had been set up to take on pirate fishing in the Antarctic, and it had the Vidals in its crosshairs.
A summit on illegal fishing in Antarctica took place on August 18, 19, and 20 of 2015. Representatives from Thailand, Australia, New Zealand, Malaysia and Interpol attended. Representing Spain were agents from the Central Operative Unit of the Civil Guard – who, since April that year, had been running their own investigation into the Vidals – as well as an official from the Spanish Ministry of Fisheries. It was then that New Zealand provided Spain with the “daily activity sheets of the Wellington, a patrol boat belonging to its fleet,” including photos and videos from their tracking of the Songhua, Yonding and Kunlun in Antarctic waters. Australia provided information on its boarding of the Kunlun. None of the ships flew Spanish flags and all were registered to companies in Panama, but all the captains spoke Spanish, and all those present at the summit knew they all had a name and place of origin in common: Vidal and Ribeira (A Coruña).
According to the Civil Guard, “all the activities for the boats are agreed on and directed from Spain by members of the Vidal family.”
Agents from the Civil Guard began investigating the headquarters in Ribeira. This included reconstructing documentation from papers found in the Vidal company’s trash bags. In one of the bins was a payment for refuelling, officially paid for by the Millennium Trading Invest company “allegedly as an intermediary or shell company”. The rubbish outside the Ribeira headquarters also included an “application for the registration in Equatorial Guinea of the Songhua and Yongding vessels, carried out by the High Mountain Overseas company, headquartered in Panama. If they were really Panamanian vessels, what were these documents doing in a rubbish bin in Ribeira?”
In its July 2015 investigation, the Office of the Prosecutor of the National Court stated that the law establishes “the competency of the Spanish jurisdiction to hear offences committed outside the national territory, provided that the criminals responsible are Spanish”, and in circumstances such as those which “directly damage the credibility or interests of the State.”
National Court Judge Carmen Lamela agreed with this interpretation of the law and opened secret summary proceedings. Operation Yuyus (after the English name for Illegal, Unreported and Unregulated fishing: IUU) was underway. It was not only begun for reasons regarding the environment. Fishing in Antarctica is very lucrative. According to reports from the Civil Guard, in January 2015 alone, the three vessels caught 174,356 kilos of hake. The investigation calculated that the “pre-tax profits from the sale of illegally caught fish could exceed €8,000,000 a year”.
After analysing the invoices seized from the company, the Civil Guard concluded that, between August 2010 and March 2015, “the Kunlun, Songhua, and Yongding associated with the Vidal Group caught a total of 5,800,198.29 kilos of black hake valued at €81,080,780.24. In total, the group’s vessels caught €86.99 million worth of black hake, primarily from protected Antarctic waters. In 2013, when one of their boats sank they declared a loss of €7.4 million, although they only ended up receiving just over five million.
In March 2016, almost a year after the secret investigation was launched, agents from the Civil Guard and Interpol entered the Vidal offices in Ribeira. The judge agreed with the State Prosecutors that there were clear indications that this was a criminal organisation and that its illegal fishing offences could be prosecuted in Spain. According to Judge Carmen Lamela, “despite the involvement of companies in third countries, the direct relationship between the vessels and those under investigation was clear.” She added, “they lacked the appropriate authorisation to carry out their activities, used IUU vessels, gillnets and other fishing gear expressly prohibited because they cause serious damage to the marine environment and many species of living marine resources, and they engaged in commercial fishing in areas where fishing is only allowed for scientific purposes, ignoring the conservation measures in place.”
They were investigated for “crimes against natural resources and the environment”, “being part of a criminal organisation”, “money laundering by deriving the proceeds of the illicit activity of other companies in the group in such a way that said proceeds could be justified and used freely”, and “false documentation by using fraudulent cargo declarations at the ports of destination regarding their cargo, allowing them to introduce their product onto the legal market”. Six were sent to jail on bail but were released as soon as it was paid.
“Once the fish had been caught, they would make false declarations at ports of discharge to avoid detection and facilitate the introduction of the merchandise onto the Asian market – as evidenced by the information obtained from Thailand and Senegal. […] It is worth noting the enormous profit that this illicit activity generates,” added the judge. The Kunlun, for example, was intercepted in Phuket (Thailand) on 16 March 2015, two months after its encounter with the patrol boat. It had, at that point, been renamed Taishan. Official records show it unloaded “183 tonnes of frozen grouper, when in fact 183 tonnes of deep-sea hake had been unloaded,” according to the Civil Guard’s court report.
The fearlessness of the Vidals must be recognised. The Kunlun/Taishan escaped from port on September 6, 2015, after having refuelled with 80,000 litres. They claimed the fuel was needed to keep the refrigeration going and the vessel left port without flying any flag. When it arrived in Dakar, it had been renamed Asian Warrior and was flying the flag of St. Vincent and the Grenadines. It allegedly unloaded tuna. The cargo then travelled in containers from Dakar to Haiphong (Vietnam) where it was seized by order of the Spanish judge after a flurry of emails. On July 21, 2016, after analysing DNA samples from the fish brought from Vietnam, the Molecular Identification Laboratory of the National Museum of Natural Sciences concluded that “all the samples analysed correspond to the species Dissostichus mawsoni. This species is neither tuna, nor grouper – it is Antarctic toothfish.”
Back in the Ribeira offices, the Civil Guard not only found invoices and corporate seals of companies outside of Spain such as Swiss HCA Helvetic Celtic Alimenta which sold the fish, but also papers that linked the Vidals to these ships and allowed them to rebuild a corporate empire made up of shell companies in countries such as Belize and Panama. Their interests ranged from fishing to the wind power industry. They used luxury vehicles such as a Bentley Continental SUV, a Harley-Davidson, an automatic Porsche Cayenne, a BMW X6 and a GLK 350 4WD Mercedes. There was also documentation of “family” meetings in which the Vidals had a schedule for doing business with all the members (communications show disagreement between them due to the mounting investigations into the “family”.)
The Supreme Court argued, “it could be said that a Spanish citizen who travels beyond our borders does not take a copy of the criminal code along in their backpack.”
From the outset, the Vidal’s defence focused on the legitimacy of the investigation – attempting to overturn the case by alleging that the Spanish justice system could not pursue a case of fishing in international waters. “It is clear that Spanish courts lack the jurisdiction for the investigation and prosecution of the facts that concern us, particularly when taking into account – by their own declaration – that it is looking into fishing activities carried out by vessels flagged and registered in third countries, in international waters,” the defence said in April 2016. They added, “We are talking about an investigation into an alleged case of unregulated fishing (which is not illegal since it was not carried out in waters under the jurisdiction of any coastal state).”
In June 2016, the criminal division of the Spanish National Court agreed with Judge Lamela regarding the appeal by the Vidals’ defence and allowed the investigation to continue. The case then went to the Supreme Court which, on December 23, ruled on the case in one fell swoop. In its ruling, the High Court complimented Judge Lamela’s “praiseworthy meticulousness” in her judgement on the Vidal case, but immediately overruled it: “The court understands however that neither the Convention for the Conservation of Antarctic Marine Living Resources, nor the indicated provisions of the Organic Law of the Judiciary provide the necessary basis for the jurisdictional proclamation.” It pointed out that while drug and human trafficking on the high seas can be persecuted, fishing cannot. Universal jurisdiction had been mutilated.
The court drew a comparison. “It is clear that a Spanish citizen or naturalised alien who travels beyond our borders does not take a copy of the criminal code along in their backpack.” In this case, it added that “the criminal act was committed, according to the lawsuit by the Public Prosecutor, in international waters, and indeed, covered by the often cited Convention for the Conservation of Antarctic Marine Resources.” Nonetheless, a “reading of the main provisions of the Convention does not reveal a requirement by the contracting parties to impose mandatory criminal pursuit of fishing offences for catching toothfish.” The court concluded by dismissing the case against the Vidals for “lack of jurisdiction by the Spanish Courts.”
Magistrate Antonio del Moral Garcia issued a dissenting opinion in which he disagreed with the other four judges who signed the resolution. He argued that a ruling such as that, at that stage of the proceedings, was unheard of and unusual – the Supreme Court usually waits for a sentence to come in, but does not bury ongoing investigations. “The principle of personality does not allow the prosecution of conduct that has been carried out in a country whose legislation does not punish it. I believe it is not right to infer that areas on land, at sea, and in space that are located outside the boundaries of national sovereignty can – in the 21st century – become lawless, where anything goes except for crimes governed by the principle of universal justice and which make up a wide-ranging – yet limited list – with considerable omissions.”
His reasoning continued: “Vessels without flags (and therefore not subject in principle to the sovereignty of any State while at sea), with various flags, or with flags of convenience, without any real ties to a country […] Well, that would imply that actions such as shooting at shipwrecked migrants struggling not to drown (as evidenced by the terrible images that have been filmed and can be seen on internet), from a vessel without a flag, would be outside of Spanish jurisdiction, despite the fact that the perpetrators are Spanish, reside in Spain and disembark on Spanish soil.”
A judge: “Acts such as shooting at drowning shipwrecked individuals from a flagless vessel on the high seas […] would be outside of Spanish jurisdiction.”
Carlos Pérez Bouzada, lawyer for the Vidals, expressed his satisfaction with the Supreme Court’s decision: “We’ve always stated that Spanish courts do not have the jurisdiction to prosecute fishing in international waters and involving vessels bearing flags from other countries. It is a very substantial legal matter.” Perez Bouzada explained that the Vidals do not pay attention to the press and emphasised that the last sightings of ships linked to the Vidals in Antarctic waters date back to the beginning of 2015: “They have been persecuted for years. They have been called the pirates par excellence of these fishing grounds.”
The lawyer considered that in this case there were New Zealand and Australian interests regarding the control of these waters: “We are not talking about activities that are clearly criminal, but of fishing. They are vessels from countries that have not signed the international convention, and shouldn’t come up with stories that the toothfish is an endangered species. This is a fishing ground with quotas of up to thousands of tonnes.” Pérez Bouzada denied the figures provided by the Civil Guard: “The fact is that the Vidal Group has had huge financial problems for some time.”
“This case has been very important because of the impunity and impudence with which they have carried out their activities. It was a national scandal in New Zealand.”
María José Cornax, head of fisheries at Oceana, was shocked that the case had been closed: “We praised the actions of the Civil Guard and the ministry because the Vidals had been carrying out illegal operations for ten years before there was any serious action against illegal fishing. The Supreme Court’s decision was an enormous disappointment.” Cornax explained that the Vidals are not alone in conducting pirate fishing, but they are the biggest illustration of it: “There is a Chinese fleet that also does it, but this case was so very important because of the impunity and impudence with which they have carried out their activities. It was a national scandal in New Zealand.”
Oceana got involved in the case in order to push the procedure. Celia Ojeda, speaking for Greenpeace, which was also involved, shared her concerns: “We hope this doesn’t set an example to other pirate companies. It doesn’t make Spain look good.” The spokesperson for the environmental NGO pointed out that the case unravelled in a very surprising way. The Supreme Court ended the investigation without waiting for a sentence or hearing from every party.
The Vidals still face another big threat: serious administrative sanctions totalling €17.8 million from the Ministry of Agriculture and Fisheries, Food and Environment which they can appeal in court. Who knows how it will end.
Years of run-ins with the authorities
In the 90s, black hake and toothfish (Dissostichus spp.) were discovered in the United States. As a deep-sea fish that is rather oily, it stays fresh longer and combines well with sauces, explained María José Cornax from Oceana. Then came the boom that the Vidals took advantage of: While Europeans didn’t consume much of the fish, over time it became popular in China where it was much in demand by the middle class. In China, Antarctic hake is often sold in place of a much more prized fish, black cod, which fetches €140 per kilo. A study that Cornax was a part of last year analysed 42 samples of fish sold as cod, but DNA testing revealed that 36 of them were actually Antarctic hake (Dissostichus eleginoides or Dissostichus mawsoni).
The boom of Antarctic hake runs hand in hand with an increase in problems with the Vidals. In 2003, one of the family’s vessels, the Viarsa, was chased by an Australian patrol for 21 days. It was finally caught near South Africa after a 3,900 nautical mile (7,200 kilometre) chase – setting what is still the record for the world’s longest sea chase.
Antonio Vidal Pego, the eldest son of the family, was sentenced by the EU on November 3, 2006, for obstruction of justice. The sentence included a fine of $400,000 and a ban on selling or exporting Antarctic hake for four years.
But that’s not all. In November 2011, the Court in Las Palmas sentenced him to jail for one year and eight months for fraud. The ruling stated that on December 6, 2005, the Hammer, which was flying a Togolese flag, was spotted by an Australian patrol boat in waters protected by the Antarctic Conservation Convention. According to the ruling, “as a result of this, on January 5, 2006, Manuel Antonio renamed it the Seoyang and sailed it under a North Korean flag; on January 16, 2006, it was again renamed, this time as the Chilbo-San n33.”
In 2006, it sold its cargo in Busan (South Korea) for €2.9 million without notifying the buyer that the ship had been tracked by the Australian patrol. South Korea did not allow the cargo to be offloaded because of this and the Vidals were required to return the €2.7 million to the buyer.