Source: Stop Illegal Fishing
Author: Sally Frankom
In March 2016, a joint operation between Spanish police and INTERPOL resulted in the arrest of six people linked to the fishing company Vidal Armadores.
The company, along with its affiliates, had long been connected to a string of illegal fishing cases and had more recently been in the spotlight as renewed efforts finally led to high profile captures of the group of six infamous toothfish poaching vessels: the THUNDER, VIKING, KUNLUN, PERLON, SONGHUA and YONG DING.
This case is important to Stop Illegal Fishing as it epitomises the issues faced by many African countries which have rich marine resources but are grappling with the hindrances associated with lack of, or complex and unclear jurisdiction and often weak legal systems. These hindrances, all too often result in countries being unable to bring more than administrative penalties against the beneficiaries of illegal fishing and related activities. Furthermore, several of these vessels were illegally active in African waters, making the outcome of this case important to those States affected.
In December 2016, the Spanish Supreme Court concluded that the courts of Spain did not have jurisdiction in the Vidal Armadores case. The previous ruling by the High Court of imprisonment with bail set at EUR 100 000 for each of the four family members and two workers that were arrested, was therefore overturned and the criminal charges dropped.
Following the conclusion of the case before the High Court, the defendants appealed to the Supreme Court because Spanish courts do not have the jurisdiction to make rulings regarding the acts for which Vidal Armadores was being accused.
All the criminal charges faced by the defendants – including money laundering, falsification of documents, environmental crimes and criminal conspiracy – were based on fishing without a license in international waters. The defence appealed the criminal charges by contesting the jurisdiction of Spain’s courts over the issue of fishing without a licence in international waters. The issue regarding the jurisdiction of Spanish courts to make a ruling in this case is discussed below.
Territorialism
Under the principle of territorialism, the Spanish courts have jurisdiction when an act is committed within its territory, including acts committed on its vessels. The vessels were not flagged to Spain, although the beneficial owners were Spanish, and the acts were committed in international waters, therefore this principle meant the Spanish courts had no jurisdiction unless the barriers imposed by this principle could be broken.
Principles and provisions exist that would justify a break from the principle of territorialism, as outlined below.
Exceptions to Territorialism
PROTECTIVE PRINCIPLE
Under the protective principle, for specific acts such as terrorism and the trafficking of illegal drugs, the Ley Orgánica del Poder Judicial (LOPJ) allows Spanish courts to break the restrictions imposed by the principle of territoriality. These specific cases are instances in which the crime has a particularly serious impact on national interests, committed outside of Spain by either foreigners or nationals. The Supreme Court concluded that it could not break the principle of territoriality as crimes against the environment, document fraud and integration into criminal organisations or groups are not classified under the protective principle and neither is fishing without a licence.
PRINCIPLE OF PERSONALITY
The principle of personality gives Spanish courts jurisdiction in cases where nationals (or foreigners who subsequently become nationals) commit a crime, in whole or part, outside Spanish territory if the act is also criminal in the location where it is committed. This can apply either under international law applicable to Spain or under the national law of the territory within which the act was committed.
The acts were committed in international waters and therefore foreign national criminal law was not applicable. Although the acts were committed in the area governed by the Convention for the Conservation of Antarctic Living Marine Resources (CCALMR), no provisions regarding criminal procedures against such infractions were present in the text of the Convention. This was echoed by European Commission (EC) Regulation no 601/2004, resulting in the conclusion by the Supreme Court that the acts were not criminal in the area committed.
Under Spanish Criminal Code the gear used is not among the list of gears which constitute a crime in Spain (use of poisons, explosives or other gear with similar harmful effects).[1] Furthermore the species targeted is not listed as protected or at risk of extinction and its consumption and harvesting is common practice.[2] Thus there is no double-criminality, meaning that the principle of personality is not applicable.
Therefore, the Supreme Court concluded that Spain had no jurisdiction to make a ruling regarding the criminal charges in the current case.
MONEY LAUNDERING
Under Spanish law, the guilty party may be equally punished for money laundering if the crime from which the proceeds came is committed within Spain or outside of Spain. However, there must be a preceding crime from which these proceeds came for there to be money laundering. As shown above, the acts were not criminal where committed (neither were they criminal in Spain) and therefore the Court concluded that there cannot be money laundering in this case.
ISSUES HIGHLIGHTED
Although the Spanish have legislation[3] which covers the issue of illegal, unreported and unregulated (IUU) fishing in international waters, the sanctions which are applicable thereunder are not criminal, they are administrative.
Despite the criminal charges against the owners of Vidal Armadores being dropped, the administrative fines and suspensions placed on associated companies and individuals reportedly, remain unaffected.
This case reiterates the need to implement legislation which allows the beneficial owners of vessels carrying out IUU fishing activities in areas beyond national jurisdiction to be prosecuted in criminal proceedings: loopholes in legislation must be closed. The deterrent of purely administrative sanctions has proven to be insufficient, with perpetrators viewing them as operational costs.
[1] Art. 336 del CP.
[2] Los arts. 335 y 336 del CP.
[3] Ley 33/2014, de 26 de diciembre, por la que se modifica la Ley 3/2001, de 26 de marzo, de Pesca Marítima del Estado.