1. Criminal procedures and sanctions against seafarers after large-scale ship-source oil pollution accidents: a human rights perspective
Anete Logina

2. Statement of the problem
Seafarers are exposed to criminal
procedures and sanctions unfairly.

3. Negative consequences
To seafarers:
health;
career.
To shipping sector:
image;
ability to recruit and retain sufficient number of qualified seafarers to the sector.

4. Work done so far
IMO/ILO Guidelines on Fair Treatment of Seafarers in the Event of a Maritime Accident, 2006.
CMI Study on Fair Treatment of Seafarers, 2006.
BIMCO Study of the Treatment of Seafarers, 2010.
SRI Criminal Survey, 2013.
etc.

5. However, the problem has remained topical
Prestige case
SUPREME COURT
Criminal Chamber
Judgment No.: 865/2015
Date of Judgment: 14/01/2016
[...] we find the defendant Apostolos Ioannis Mangouras guilty of the stated crime, without any circumstances that would mitigate his criminal liability.
Thus, Captain Apostolos Ioannis Mangouras will be convicted as the perpetrator of the crime and sentenced to two years in prison [...].

6. Standard of fairness Relevant human rights: Right to liberty.
Right to be free from torture and other cruel, inhuman or degrading treatment.
Right to be free from cruel, inhuman or degrading punishment.
Right to fair trial.
Right to non-discrimination.

7. Human Rights Compliance Check-Lists Dissertation\Annex I - Human Rights Compliance Check-Lists.docx

8. UNCLOS and MARPOL
Several unclear legal norms and several legal norms which deviate from human rights See the Executive Summary! See the Dissertation!

9. Dissertation\Annex II - Criminal Jurisdiction.docx
UNCLOS
Relatively many legal norms of UNCLOS on jurisdiction, including criminal jurisdiction, are unclear.
The user-friendly table on criminal jurisdiction over large-scale ship-source oil pollution accidents
Dissertation\Annex II - Criminal Jurisdiction.docx

10. MARPOL
Regulation 4 of Annex I – very important regulation, which defines exceptions from liability in regards to oil pollution – is deficient in several aspects:
it uses unclear terms;
it deviates from general principles of punishment;
it deviates from similar legal norms in other maritime conventions;
it deviates from similar legal norms in MARPOL itself, just in other annexes.

11. EU Directive 2005/35 Highly criticised by the international maritime
community, among other things, for its incompatibility
with the MARPOL exceptions from liability and the
rules of UNCLOS on the right to innocent passage.
INTERTANKO and others v. Secretary of State for Transport
In 2008 the European Court of Justice refused to assess the validity of the Directive in light of MARPOL and UNCLOS.

12. The main problem: Art. 5 of the Directive states that in regards to discharges of oil in internal waters or territorial sea of a Member State MARPOL exception from liability “discharge resulting from damage to a ship or its equipment” should not be followed, despite the fact that under MARPOL respective exception from liability is applicable in regards to discharges of oil in any maritime zone.

13. Lawful
Unlawful
Both sides are right in some extent, and both sides are wrong in some extent

14. The root cause of the problem is the fact that MARPOL does not state clearly whether State Parties to MARPOL may adopt more stringent standards than MARPOL or not (if they may, the Directive is legitimate; if not – it is not).

15. When MARPOL was developed, there were rather wide discussions on the respective issue. However, ultimately, these discussions were abandoned, with different views still present.
The international maritime community must return to the discussions which were abandoned during the drafting process of MARPOL, and then incorporate in MARPOL the result of these discussions.

16. Erika Prestige Tasman Spirit Hebei Spirit/Samsung No.1
Case study
Erika Prestige Tasman Spirit Hebei Spirit/Samsung No.1

17. In all 4 cases - specific violations of the right to liberty.
In the Prestige case and the Hebei Spirit case – also specific violations of the right to be free from torture and other cruel, inhuman or degrading treatment as well as the right to be free from cruel, inhuman or degrading punishment.
In the Prestige case and the Tasman Spirit case – also violations of the specific rights under fair trial umbrella (the right to be tried without undue delay, the right to be tried in presence and the right to be tried by independent and impartial tribunal).

18. Highlight the positive practice as well, so that law enforcement institutions could learn from it and strive towards it!

19. IMO/ILO Guidelines on Fair Treatment of Seafarers
calls are made repeatedly for the implementation and promulgation of the Guidelines;
corresponding surveys are carried out;
guidance on the Guidelines are developed;
etc.

20. some of the rules encourage co-operation between relevant stakeholders;
some of the rules provide maritime-specific explanations to law enforcement institutions;
etc.

21. More substantial encouragements
the Guidelines are fragmented;
majority of the rules within the Guidelines are only declarative calls to observe particular human rights.
More substantial encouragements
are necessary!

22. Potential overall ways forward
Targeted informative campaigns and educational courses.
“Targeted”
police officers,
prosecutors,
judges

23. “It is useless for the sheep to pass resolutions in favor of vegetarianism while the wolf remains of a different opinion” (William Ralph Inge)

24. A new dam?

25. Sanctioning Guidelines for Offences in the Maritime Domain
International Convention for the Unification of Certain Rules Relating to Penal Liability in the Maritime Domain
Sanctioning Guidelines for Offences in the Maritime Domain
Identifies the relative seriousness of different offences in the maritime domain and apportions sanctions for them accordingly
Guidelines on Penal Proceedings Which Involve Seafarers
Identifies the specific aspects of the maritime domain which must be taken into consideration when carrying out penal proceedings which involve seafarers

26. Why?
Practices in regards to the application of penal liability and specific sanctions and procedures in relation to offences in the maritime domain differ considerably from state to state.
Such differences do not allow the securing of a fully-proportional penal liability and sanctioning system, which is one of the desires of human rights.
Therefore, the existence of some common international standard is desirable.

27. For developing such common international standard it is not enough to amend just one existing maritime convention; several of them need to be amended.
Including specific rules on penal liability only in one of the existing maritime conventions will leave the room for ignoring respective rules, simply by defining a particular offence through the prism of another convention.
MARPOL or SOLAS violation?
MARPOL and SOLAS violation!

28. Leaving the issue of penal liability in the maritime domain to be settled through amending different existing maritime conventions includes the high risk that the system ultimately developed will still not be harmonised, because, in such a case, the drafting process will be very fragmented.
The development of one single instrument on penal liability in the maritime domain and accompanying sanctioning and procedural guidelines will allow for in depth and coherent discussion on all relevant issues.