the toxic truth - Greenpeace

156 Amnesty internAtionAl And greenpeAce netherlAnds
Chapter 13
Management Act by transferring the waste back to the Probo
Koala from the APS barge. 675 However, the court also found that
APS had “made an excusable error of the law” because it was
entitled to rely on the advice provided by the Environment and
Buildings Department of the Amsterdam Municipality (DMB)
with respect to permission to return the waste to the Probo
Koala. 676 On that basis, the court accepted an “absence of all
guilt” defence put forward by APS. 677
The guilTy verdicTs – amsTerdam courT of firsT insTance
Charge 1: Exporting waste from an EU country to an ACP
state in violation of Section 18 of the European Waste
Shipment Regulation (EWSR) 678
Trafigura Beheer BV was found guilty of exporting waste on
board the Probo Koala to an ACP (African, Caribbean, and
Pacific Group of States) state in contravention of Section
18 paragraph 1 of the EWSR. The court rejected Trafigura’s
defence that the waste generated on board the Probo Koala
was the result of normal operations of a ship. Furthermore,
the court stated that the export of the waste had been done
with “malicious intent”. 679
Trafigura raised a number of other defences which were
rejected by the court, including the following.
Trafigura argued that the charge that it had exported waste
to Côte d’Ivoire could not be proven since there were no
plans to export the waste to Côte d’Ivoire when the Probo
Koala was in the Netherlands, and since the export effectively
ended when the Probo Koala entered the territorial
waters of an ACP state, Mauritania or Togo. 680 This argument
was rejected by the court, which held that the “act of export
must be viewed as a whole” 681 and that it began in the Netherlands
and ended in Côte d’Ivoire.
Trafigura argued it had committed an excusable error of law
by assuming that the waste fell under MARPOL and that its
ignorance of the law should be a mitigating factor. The court
rejected this argument, since Trafigura showed no specific
circumstances that could justify the defence:
“ The defence has put forward that Trafigura was
absent of all guilt since it assumed that the slops did not
fall under the eWSR, but instead, under MaRPol. This
appeal to an excusable miscarriage of justice does not
hold. after all, invoking an absence of knowledge of the law
can only benefit a suspect under special circumstances,
and Trafigura has not put forward this type of special
circumstance. ” 682
Charge 2: Delivering goods which [to their knowledge]
presented a hazard to life or health and concealing the
hazardous nature of the goods (contrary to section 174 of
the Dutch Penal Code)
Trafigura Beheer BV and Captain Chertov were also found
guilty of having “delivered goods to APS which, to their
knowledge, presented a hazard to life or health, and of
having concealed the hazardous nature of the goods,”
contrary to section 174 of the Dutch Penal Code. Trafigura’s
London-based executive Naeem Ahmed was held to have
“provided the actual supervision for this act.” 683
Charge 3: Forgery (Contrary to Section 225 of the Dutch
Penal Code)
The court found Captain Chertov guilty of being complicit in
forgery under Section 225 of the Dutch Penal Code. 684 In
order to discharge the waste at Amsterdam, Captain Chertov
had to complete a form called “Notification of ships waste
and (remainders of) noxious substances”. Captain Chertov
noted on the form that the waste consisted of “tank washings”.
The court held that he “knew the waste was not just
tank washing water”, because he had been “involved in the
washing operations from beginning to end”. 685
Trafigura and Ahmed were acquitted of involvement in
the forgery on the basis that the single piece of evidence
against them (the captain’s statement, which had indicated
involvement on the part of Trafigura) was considered insufficient.
686 During the court proceedings Trafigura’s defence
acknowledged the fact that the company had instructed the
captain of the Probo Koala not to disclose the existence
of the waste in Tunisia, and argued that the absence of a
similar email in relation to the events of Amsterdam proved
that Trafigura was not involved in forgery in Amsterdam and
that it was the captain’s own decision to fill in the papers in
the way he did.