the toxic truth - Greenpeace

the toxic truth
The Appeal Process
Trafigura Beheer BV, Naeem Ahmed and the
Public Prosecutor all appealed against the
verdict. Trafigura Beheer BV and Naeem
Ahmed appealed to have their sentences
annulled, while the prosecutor appealed on
the basis that neither Trafigura nor Naeem
Ahmed had been found guilty of forgery, as
well as against the fact that the municipality
had obtained immunity.
On 1 July 2011, the Dutch Court of Appeal
annulled the verdict against Naeem Ahmed
on the basis that the Court of First Instance
did not have jurisdiction once the economic
offences (forgery) were lifted. 699 The Public
Prosecutor has appealed this decision.
On 23 December 2011 the Amsterdam Court
of Appeal issued a judgement which upheld
the €1 million fine against Trafigura Beheer
BV. The court considered it was “proved
that Trafigura failed to disclose the harmful
character of the waste to APS, knowing that
the waste was harmful for life and/or health
and moreover that Trafigura illegally exported
the waste to Côte d’Ivoire after it had been
given back by APS.” 700 The Court of Appeal
went on to state:
“ The Court of appeal believes the
requirements on waste producing companies
are justifiably very strict when it comes to
the handing over and disposal of this waste
in an environmentally sound manner. This is
an important aspect of worldwide socially
responsible entrepreneurship. The fact that
as a globally operating group of companies
Trafigura could not have been unaware of
this weighs heavily in the Court of appeal’s
701
judgement. ”
However, the appeal judgement raised some
uncertainty about the applicable legal regime.
The court’s judgement appeared to accept
that the waste on board the Probo Koala could
be considered as MARPOL waste until the
point at which it was discharged to APS, at
which point the EWSR and Basel would apply.
With respect to APS, the Court of Appeal
found that APS had violated the Environmental
Management Act by handing over waste to
the Probo Koala, which was not a recognized
waste processor, but that the company was
not liable for punishment, and discharged it
from further prosecution. Like the Court of
First Instance, the Court of Appeal found that
APS could rely on the notification provided by
Municipal Department of Environment and
Buildings that returning the waste to the Probo
Koala was permitted.
With respect to the Municipality of
Amsterdam, the Court of Appeal also found
that it was immune from prosecution since
“…the granting of permission to pump
back waste or failure to take enforcement
action is an action performed in the scope
of an exclusive administrative responsibility
assigned to the municipality.” 702
As of the date of writing this report, both
Trafigura Beheer BV and the Public Prosecutor
have filed a notice to appeal the decision to
the Supreme Court.
In 2008 Claude Dauphin, Trafigura’s chairman,
had initially been charged with a number of
offences, including the illegal export of waste
from the Netherlands. The charges did not
progress at the time. On 30 January 2012 the
court decided that separate legal proceedings
could continue against Claude Dauphin.
Claude Dauphin has appealed this decision.
At the time of writing this was pending.
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Chapter 13