the toxic truth - Greenpeace

140 Amnesty internAtionAl And greenpeAce netherlAnds
Chapter 11
Dismissing charges against the three
executives before trial
One year later, the prosecution against the three
Trafigura executives – Dauphin, Valentini and
Kablan – was discontinued, following a finding
made by the court that there was insufficient
evidence to proceed with the charges that
had been brought against them. Considering
Claude Dauphin and Jean-Pierre Valentini
together, the court considered that there was
no case against them for being an accessory
to poisoning, because the investigation
“revealed no action performed personally by
the accused”. 611 The environmental and public
health charges against Dauphin and Valentini
were also dismissed, as the court found that
the investigation had shown that neither had
committed a “reprehensible act”, 612 and that
both had found themselves at the centre of
proceedings because they travelled to Côte
d’Ivoire to help.
The court made this finding despite the
damaging evidence provided by Claude
Dauphin during his confession to the
prosecutor in which he admitted that: “It
is the Trafigura Company and, to a certain
extent, Monsieur Marrero, who are entirely
responsible for these actions” 613 and findings
made by the National Commission concluding
that Côte d’Ivoire lacked the appropriate
facilities for treating the toxic waste, as
admitted by Dauphin and Valentini during
interrogations. 614
In its assessment, the court did not go on
to find that a contravention of the law had
occurred within the context of corporate
activity and, thus, did not go on to consider
the issue of Dauphin and Valentini’s resulting
supervisory liability by virtue of Article 3
of the Public Health Act (that is, their roles
in managing, monitoring or controlling the
dumping of the waste). This appears to have
been decided despite the findings of the
National Commission, and without considering
other evidence , such as that referenced in
this report, with regard to direct knowledge
of the events and ability to control and/or
influence the outcome. 615
The court also held that there were no
grounds to pursue a case for poisoning
against N’zi Kablan of Puma Energy. The court
held that N’zi Kablan did not carry out any acts
falling within the Environmental Act and Public
Health Law, and further stated that he had
gone “beyond the obligations” imposed upon
him. 616 Again, this finding is in sharp contrast
to the National Commission’s findings that
Kablan had played an “active role” in the illicit
import of the toxic waste through his dealings
with Compagnie Tommy. 617 The court did not
address this inconsistency with the findings of
the National Commission.
The court also found that there was no case to
answer against two other Trafigura executives,
Jorge Marrero and Paul Short, on the grounds
that:
“ Investigations undertaken at the first
and second degree of the preparation of the
case did not enable us to ascertain their full
respective identity, such that they were not
618
charged. ”
The court found that “in any case, no criminal
act could legitimately be imputed to them”.
The court commented that Short and Marrero
had specified the nature of the waste in an
email and specified some precautions to be
taken. The court further found that Compagnie
Tommy had asserted to them that it had
acquired the services of a qualified chemist
and was intending to use a suitable site for
discharging the slops. 619 Again, this finding
contrasts with those made by the National
Commission, which had found that Short
and Marrero “could not ignore the technical
incompetence of Compagnie Tommy”, that
Ugborogbo’s letter (Trafigura’s contract with
Compagnie Tommy) made clear that he was
agreeing only to discharge of but not to treat
the waste, and that Short and Marrero could
not have been convinced by this letter. 620