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The court has agreed to process Oceana’s appeal to review the closing of the case. One judge argued that the decision left offences at sea unpunished.

Rafael Méndez (El Confidencial.com)

15.03.2017 – 05:00

The Supreme Court will review its decision to archive the case against the Vidal family for pirate fishing in Antarctica. The court closed the case in December on the grounds that Spain could not prosecute illegal fishing there, even though one of the judges suggested that this was tantamount to leaving offences at sea, such as shooting immigrants, unpunished. But the court has now accepted an appeal by Oceana. It is a legal strategy that is not always admissible and is seldom successful. The environmental NGO has alleged defencelessness because it was not heard in the proceedings that shelved almost two years of international investigation. The organisation regards this as a “disgrace” for Spain.

Two years ago, the Environment Division of the Civil Guard’s Central Operations Unit began a thorough investigation into the Vidal clan’s activities in waters protected by the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR). Under the authority of the National High Court, members of this family from Ribeira (Coruña) were arrested and accused of illegal fishing, criminal organisation and money laundering. The case involved the active support of Interpol and countries such as Australia, New Zealand and Indonesia. After two years of complex preliminary investigation, with trips by Civil Guard agents to Dakar, meetings in Singapore, and DNA samples from Antarctic hake travelling from Vietnam to Madrid, last December the Supreme Court suddenly closed the case.

On 23 December, the Criminal Chamber of the Supreme Court decided that Spain could not prosecute these offences at sea. It decided that in these areas only the trafficking of people or drugs and other serious crimes could be pursued. “Put simply, it could be said that the Spanish citizen or the naturalised foreigner who travels beyond our borders does not carry a penal code in their backpack.” In this case, the ruling added, “the criminal act was committed, according to the complaint brought by the Public Prosecutor, in international waters, covered, in fact, by the Convention on the Conservation of Antarctic Marine Resources that is so often cited.” However, “the reading of the main provisions of the Convention does not reveal an intention of the contracting parties to impose mandatory criminal prosecution of fishing offences involving the capture of toothfish.” For these reasons, the Supreme Court concluded by pronouncing the dismissal and closing of the Vidal case “due to lack of jurisdiction of the Spanish courts”.

The case involved a mortifying dissenting opinion from the judge Antonio del Moral García who disagreed with the decision, considering that it left international waters like “cities without law, where anything can be done, except for crimes governed by the universal principle of justice and that make up an extensive but nonetheless limited list and with notable absences”. He argued: “I think of vessels not flying any flag (and therefore not subject in principle to the sovereignty of any state when they are on the high seas), or in which they carry several flags or a flag of convenience, without real ties with the country […] Well, that would mean that acts such as shooting at shipwrecked people who were struggling not to drown from a ship on the high seas (a possibility that is not the result of the imagination, as terrible filmed footage that circulates on the Internet demonstrates), from a ship not flying a flag, would be outside Spanish jurisdiction, even if the authors were Spanish, resided in Spain and disembarked in Spanish territory.”

The judge added that the closing of the case at that moment in the proceedings, and regardless of what the National High Court had decided, involved “a triple interpretive somersault, as audacious as it was skilful”. “A decision has been reached that, to my knowledge, lacks any precedent. It is not only unusual, but completely unprecedented: the Supreme Court in pronouncing an annulment decrees ‘ex novo’ (that is, not by way of confirming a previous ruling) the dismissal of preliminary proceedings in progress.”

The NGO Oceana, appearing in the legal proceedings, has taken up that line of reasoning. Defended by the legal firm Islaw, Oceana in its ancillary proceeding claims that they were not heard in that last phase of the proceedings and that the closing of the case therefore represents defencelessness. The case has followed a strange route, because the Vidals first appealed to the National High Court, where the preliminary proceedings were taking place. The Fourth section of the Criminal Chamber of the National High Court ruled against them and ordered the continuation of the proceedings. It also pointed out that there was no possibility of appeal against its decision.

A new, unusual and unprecedented jurisprudential theory cannot either directly or indirectly cause the defencelessness of a party

However, the Vidal family went to the Supreme Court, which ruled in their favour, but in those proceedings Oceana was not heard. “The appeal for cassation was, for the party I represent, a hidden, latent, and invisible appeal: my client neither knew of nor could suspect its existence. That same ‘hidden’ character prevented the party I represent from appearing in the appeal for cassation to defend the inadmissibility of the appeal, which placed my client in a position of clear defencelessness. This represents nothing more nor less than decreeing a dismissal without hearing the other party,” states the appeal by the NGO. It adds: “We do not deny that the Supreme Court is in its right to issue the ruling before us, regardless of the assessment that we think it deserves, but the establishment of a new, unusual and unprecedented jurisprudential theory cannot either directly or indirectly cause the defencelessness of a party.”

The ecologists, who have been denouncing the abuses of the Vidals’ boats in Antarctic waters for years, add: “We are faced with a novel interpretation by our Supreme Court; and by novel, we mean – regardless of whether or not it is now considered correct – that it is highly surprising.” “The effect of the sentence that we’ve been commenting on is so dramatic (it means the end of the case) that we can’t simply accept that a judgement has been given without having first heard all the parties involved in the case at the time.” The Supreme Court has accepted this appeal and has given all parties the option to make representations. This means reviewing the dismissal of the Vidal family.

In a tough statement, the NGO considers that the closing of the case was “a disgrace for Spain”: “We received the decision of the Spanish Supreme Court with disbelief. We refuse to accept that Spain leaves international waters open to crime. We could not believe that the courts have decided to dilute the efforts of the Spanish Government to combat illegal fishing. Allowing these companies to carry on with their activity is a disgrace for the country and an international disgrace,” insisted Lasse Gustavsson, executive director of Oceana in Europe.