Sea Shepherd wakes up from self induced coma in Ecuador

Lady Justice Has Abandoned Galapagos

On July 25th, Sea Shepherd reported the capture of a fishing vessel in what is the biggest case of shark killing in the history of the Galapagos National Park. We saw this as our opportunity to put almost two years of hard work in our legal project into practice and were preparing ourselves to go to court as an accusing party in defense of the massacred sharks. It was going to be historic, as there is no prior record of non-governmental organizations (NGOs) prosecuting environmental cases in the Galapagos. But, we were too optimistic as the Galapagos legal system is incapable of dealing with environmental crimes. In fact, we wonder if the local legal system is even capable of handling any crimes at all. In the 13 years of environmental regulations in the Special Law of Galapagos, not a single conviction has ever followed an environmental crime. We now know why: it is simply impossible under the present judicial conditions.

The facts of the Fer Mary 1 case:

–       –   The Fer Mary 1 is an industrial fishing vessel, using longlines, registered in Manta, the main fisheries port of Ecuador.

–        –  The Fer Mary 1 was detected by the Vessel Monitoring System (VMS), on July 18th 2011. VMS is used by the Galapagos National Park Service (GNPS) to monitor vessel movement inside the Galapagos Marine Reserve (GMR).

–      –    The GNPS sent a speedboat to intercept the vessel that was operating some 20 NM inside the GMR. This speedboat had six rangers and one navy member. They sailed under difficult sea conditions to do their job. The seas were so rough that the GNPS took a big risk.

–        –  A large number of sharks (357) of different species, including one mako, a protected species by the Convention on Migratory Species, were found in the vessel and its dependant minor vessels. Some of these species are also listed on the International Union for the Conservation of Nature’s (IUCN) red list as either endangered or threatened. In Galapagos ALL species of sharks receive full legal protection.

–          -According to the Galapagos Law and the Criminal Code of Ecuador, any capture of sharks, is illegal within the GMR. Any industrial fishing, especially using longlines, is also illegal inside the GMR.

–          -On July 19th, the environmental prosecutor of Galapagos opened an investigation on the environmental crimes of fishing within the GMR and capturing protected species against the crew of Fer Mary 1. Upon request of the prosecutor, the judge ordered the detention of allcrewmembers. The GNPS also filed an accusation.

–          -If convicted, the crew of the Fer Mary 1 can all get up to three years imprisonment for fishing illegally and an additional three years for capturing protected species.

–          -On August 3rd upon request of defendant’s attorney, a judicial hearing took place. Despite the prosecutor’s formal opposition, the judge decided on Saturday August 6th to release all suspects on the condition they report to the judge in Manta, their hometown on the mainland, every eight days. This condition applies to 19 crewmembers, which have left the islands and are now enjoying freedom 982 km away from the crime scene. Only the captain and the chief engineer, have to stay in Galapagos on San Cristobal Island until the end of the preliminary investigation, which is the first stage of the criminal procedure.

–          From a litigation perspective, the case has no future, as most suspects are out of town. This means that all of the risks taken by park rangers and the navy crew, implementation of expensive satellite monitoring technology, and all of the work of the environmental prosecutor and the GNPS was worth nothing to the judicial system, as suspects are now 982 km away from the Galapagos Islands. In reality, real justice is meant to respond to society and to protect it, not to abandon it.

–          -And yet, it gets even worse: If charged with environmental crimes, all suspects will have to come back to Galapagos for trial. This has never happened in previous cases. The Papate is a good example. In April 2010, this Ecuadorian industrial fishing vessel was also caught inside the GMR with 183 dead sharks onboard. Five times the court in Galapagos has asked the 14 defendants, who are also from Manta, to return to Galapagos for their court case. The last time only one of them complied. In order for the court to process the case, ALL defendants must be present.  If the defendants fail to show up, the police have the authority to detain them and transport them to the court. This happens on the continent BUT in the case of Galapagos the question emerges: who will pay the costs of transportation from the mainland to the islands? Neither the police nor the judicial system has the budget for this. It is also not clearly regulated in the law.

–          Even if suspects do return, it is already certain that the case will be nullified: in the first environmental case that ever went to trial in Galapagos, the local criminal court has declared itself not competent to address cases on environmental crimes. That means that if you want to prosecute somebody in Galapagos, you have to go to the nearest provincial court in Ecuador, some 982 kilometers away. This is unbelievable and simply unacceptable.

–          Even more unacceptable is the fact that Galapagos is the only province in Ecuador without a Provincial Court of Justice.  How can this all happen in such a unique place as Galapagos?

Further notes of interest regarding the Fer Mary 1 case:

–      –    The vessel is being detained in Galapagos. History has shown that the owners will unlikely get it back (small bit of good news).

–        –  The prosecutor has also started a case against the owner of the vessel, a positive and new strategy to push the case to its limits. However, the same applies here as with the other defendants of previous cases: if one fails to show up, none can be charged.

–         -The judicial system needs to be completely sanitized. Sea Shepherd Galapagos has helped achieve great improvements but as it turns out we haven’t even scraped the surface in this area. The environmental prosecutor is doing a great job but is running against the judicial wall.

–         – The GNPS is able to capture illegal fishermen thanks to the already existing VMS and soon with help of the Automatic Identification System (AIS) that Sea Shepherd is installing. The park rangers do this under difficult sea conditions taking big risks in order to protect the GMR. It is very frustrating for the rangers to then see the case being lost due to a failing judicial system.

–          -The judge ordered the release of the fishermen due to humanitarian reasons. He thought it unfair to incarcerate people for a “mere” environmental infraction. But what about the terrible environmental damage that was inflicted upon this fragile ecosystem? What about breaking the law, doesn’t that count for something? Apparently in Galapagos, nature is not as important to the judicial system.

–          -The judge who ordered the release was removed from his position, days after he made this decision.

Next steps of action to correct this unacceptable situation:

–          -Complete, in depth sanitation is needed of the judicial system in Galapagos. Competent judges need to be appointed who understand the value of the Galapagos delicate ecosystem.

–          -If the court in Galapagos is not competent to address cases on environmental crimes, than a provincial court should be appointed in Galapagos.

–          -Where it is clear that the local judiciary does not understand the ecological value of sharks, at least it should be make clear to them that the economical damage to Galapagos far exceeds the profits of illegal fishermen. Some 90% of the people in Galapagos are dependent on tourism of which dive tourism is a very important part. People come to Galapagos to see sharks, not to see sharks being butchered by illegal fishermen.

–          -Cases need to be treated on a person-to-person basis. Instead of trying to get all crewmembers back at the same time (which has proven to be impossible), the courts should prosecute each person individually. Not only will this be a lot easier, it also prevents all cases to be delayed if only one person fails to show up. This method is being applied in other parts of Ecuador where it has been proven to work. Due to the logistical difficulty Galapagos faces, as well as the lack of a provincial court, this should be an option.

Next steps of action for Sea Shepherd Galapagos:

This unlawful shark massacre will not be forgotten, and we will make sure of it. Sharks were killed in a shark sanctuary where they receive full protection, even though the judicial system fails to understand that.

This case has become the very symbol of a failing judicial system in Galapagos. If this judiciary is ever to become what it should be, a knowledgeable and respected actor in delivering environmental justice, then urgent and full transformation is needed.

At the moment, a process of judicial transformation is underway in Ecuador. We need to show national judicial authorities just how poorly environmental justice is being delivered in Galapagos. The Fer Mary 1case will not bring the 357 dead sharks back to life, nor does it pay justice to the hard work of all the local authorities involved, but it may just be THE case justifying the need for major, local judicial transformation.

A legal brief (amicus curiae) on the need to protect sharks will soon be filed in court. Local and national support is being asked in order to send a clear message to the judicial system on how upsetting this case has become to society.

Two years ago we succeeded in showing national authorities the need of a specialized environmental prosecutor for Galapagos, and now, we turn our efforts to the judiciary.

It is about time for Lady Justice to come back to Galapagos.

FROM THE ARCHIVES

P. Watson: Open Letter to the President of Ecuador

To: President Rafael Corea, President of Ecuador

From: Captain Paul Watson, Founder and President of the Sea Shepherd Conservation Society

Dear Mr. President,

I have been informed by the Ecuadorian media that the Mayor’s office in Quito accepted to consider an official “appeal on the grounds of unconstitutionality” (Recurso de Amparo) in reference to your order to deport Sea Shepherd’s Representative in Ecuador, Sean O’Hearn Gimenez.  As a result, Sean O’Hearn Gimenez avoided expulsion 10 minutes before being forced to board a Delta flight to Atlanta.  On this point, we are all a bit confused.  Why, Mr. President, did you publicly announce to the national and international media at 8 o’clock in the morning of August 4th, 2007 that you personally had deported Sean O’Hearn Gimenez three hours before the official deportation hearing had taken place?  Isn’t it true, Mr. President, that under Ecuadorian law, a person can only be deported after the official hearing has taken place?  During this hearing isn’t it true, Mr. President, that Sean had the right to the legal counsel of his choice?  Can you please instruct the Minister of Government, Mr. President, to confirm that Dr. Gyna Solis, Sean’s attorney, was not allowed to be present during this official hearing?  Could you also request the Minister of Government, Mr. President, to explain how he could legally have nullified the 9-VI Residency Visa?

Within this context, I have received all the documentation relating to the police operations conducted in the province of Manabí on July 31st, 2007.  Similarly, we have obtained numerous reports concerning Sean’s illegal detention on the night of August 3rd, 2007, as well as the analysis of the evident inconsistencies which suggest that due process was clearly denied.  I have forwarded all of this information to our international lawyers and our Board of Directors for their review.

On behalf of Sea Shepherd, I take this opportunity to thank the Ecuadorian media for their unbiased, professional and dedicated coverage of this very unfortunate incident which has transcended to thousands of media outlets on all six continents of the world.  We have taken note that the overwhelming majority of the Ecuadorian press is suggesting that effectively the Ecuadorian state has failed to uphold Sean O’Hearn Gimenez’s legal rights as stipulated and guaranteed under the Ecuadorian Constitution  and under International law.

Nevertheless, Mr. President, I reaffirm the position taken by both Sean O’Hearn Gimenez and Pieter Brouwer, Spokesperson for Sea Shepherd in Ecuador, as published in El Universo on August 8th, 2007, stating that differences of opinion in democracies can best be resolved through dialogue and that unilateral actions which apparently abuse the due process of law should not be encouraged.  Sea Shepherd is open to any invitation to discuss the events with you and your Minister of Government personally.

Subsequently, concerning the agreement of cooperation signed at the request of your government, between the National Police and Sea Shepherd, I hereby officially communicate to you that this was immediately suspended the second Sean O’

Hearn Gimenez was illegally arrested.  For the record, our cooperation with the environmental police produced 7 operations during which a historical record was achieved including the decommission of 40,000+ shark fins and 93,000+ endemic sea cucumbers of the Galapagos Islands.  The suspension of the agreement very unfortunately affects over 20 Million dollars of international funds which were being successfully negotiated to strengthen the projects that we were jointly formulating between your government and Sea Shepherd.  Ironically, a very important program was being directed to improve the socioeconomic situation of artisanal fishermen living in the Galapagos and on the mainland who are facing conditions of extreme poverty.  Certainly, Mr. President, the environment does not have to account for poverty nor should it have to pay the consequences, as your Presidential Decree No. 486 would imply.  Poverty is directly correlated to state policy and should be resolved within this spectrum.

I am requesting, as President and Founder of Sea Shepherd, my board of advisors to contact the Secretary General of the United Nations, the Director General of UNESCO, the European Parliament, the EU, the U.S. House of Representatives and Senate, the Ecuadorian Congress and other pertinent authorities to express our deep concern that the marine reserve of the Galapagos Islands is under major threat.  We are all appealing, Mr. President, to your sensibility on ecological matters and agree with you when you state that “the shark is more valuable swimming freely in Galapagos than floating dead in the soup of the Chinese.”

  Consequently, once again I formally request that you reinstate Presidential Decree No. 2130 by nullifying your Presidential Decree No. 486, especially as UNESCO World Heritage Committee will be reviewing the status of the archipelago in November 2007 and February 2008.

However, I am forced to draw your attention and wish to express to you my very deep concern as to the more than unfortunate incident which has occurred this morning with regard to Elsa Maria Cortez, wife of Sean O’Hearn Gimenez.  I have requested Sean and his family to return for consultation as soon as possible.  This matter, as well as all the incidents surrounding Sean’s illegal arrest, have been communicated to the institutions which legally represent the Universal Declaration of Human Rights.  Very specifically, I am requesting Mariana Almeida, Executive President of Selva-Vida Sin Fronteras Foundation of Ecuador and member of our Board of Advisors in Latin America to intercede.  Independently, I am also asking Dr. Juan De Dios Parra, Secretary General of the Latin American Association of Human Rights (ALDHU), to represent Sean O’Hearn Gimenez’s human rights in Ecuador.

Finally, I am requesting the members of our Board of Advisors to consider:

  1. the implications of Presidential Decree No. 486 on the Galapagos Marine Reserve
  2. the impact of Presidential Decree No. 486 on the Pacific Marine Corridor
  3. the possible violations of human rights experienced by our representative in the very beautiful country which you are presently presiding

For your easy reference, The Sea Shepherd Advisory Board consists of:

Scientific, Technical, and Conservation:
Dr. Deborah Brosnan

David Foreman
Dr. Birute Galdikas
Randy Hayes
Dr. Herbert Henrich
Dr. Jennifer Hopper
Captain Jet Johnson
Horst Kleinschmidt
Dr. Louise Leakey
Elizabeth May
Dr. Joe McInnis
Dr. Godfrey Merlen
Dr. Roger Payne
Grant Pereira

Legal and Law Enforcement:
Basil Hobbs

Financial and Management:
John Paul DeJoria
Mike Galesi
Pritam Singh
Robert Wintner

Photography:
Jody Boyman
Marc Gaede

Media and Arts:
Brigitte Bardot
Linda Blair
Berkeley Breathed
Pierce Brosnan
James Cromwell
Linda G. Fisher
Rutger Hauer
Pieter Kroonenburg
Rafe Mair
Jacques Perrin
Sean Penn
Martin Sheen
George Sumner
Diane Warren

Animal Welfare, Humane and Animal Rights:
Dr. Alex Hershaft
Marnie Gaede
Steve Hindi
Howard Lyman
Alex Pacheco
Heidi Prescott
Dr. Tom Regan

I remain yours sincerely,
Captain Paul Watson

Founder and President of the Sea Shepherd Conservation Society (1977-
Co-Founder – The Greenpeace Foundation (1972)
Co-Founder –

Greenpeace International (1979)

Director of the Sierra Club USA (2003-2006)

 

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~ by FSVSF Admin on 26 August, 2011.

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