the toxic truth - Greenpeace

160 Amnesty internAtionAl And greenpeAce netherlAnds
Chapter 13
A welcome but limited
prosecution
The decisions of the Court of First Instance
and Court of Appeal confirm that the company
acted illegally and committed breaches of
European and Dutch law. The decisions also
confirm that the waste carried by the Probo
Koala was highly toxic and harmful for life and
health.
While this is a significant step towards
justice, the fact remains that the prosecution
was limited. It focused on events and legal
breaches that occurred in the Netherlands
alone. It did not consider whether Trafigura
was implicated in any other illegal actions
in relation to the waste and the dumping of
the waste following illegal export from the
Netherlands to Côte d’Ivoire.
The Dutch Penal Code recognizes what is
called the “double criminality rule”, meaning
that a Dutch national (including a Dutch
company) can be prosecuted for any act
committed abroad, provided it is an offence
both under the Dutch Penal Code and in the
country where that act takes place. 703
However in pre-trial court hearings in June
2008, the Dutch Public Prosecutor made clear
that he had decided not to include potential
crimes committed in Côte d’Ivoire in the
investigation, as it “appeared impossible”
to conduct an investigation in Côte d’Ivoire,
despite attempts to do so. 704 It is not clear
what attempts were made by the Dutch
authorities to conduct an investigation in Côte
d’Ivoire, or what obstacles were encountered.
The prosecutor’s decision greatly limited the
scope of the prosecution in the Netherlands
and, by extension, restricted the ability of
victims from Côte d’Ivoire to attach civil claims
to the criminal prosecution. 705 For example,
a claim brought by PKL, an Ivorian baby food
company, which alleged that it had suffered
economic harm as a result of contamination
of its food products, was found to be
inadmissible by the Dutch court because the
company had not suffered direct damage as a
result of the charges under consideration by
the court (which related to Trafigura’s conduct
in the Netherlands).
Greenpeace appeal against the
decision of the Public Prosecutor
In 2009, Greenpeace brought a complaint
against the Public Prosecutor’s decision not
to prosecute Trafigura Beheer BV and Puma
Energy, Trafigura Chairman, Claude Dauphin,
and specific employees of the Trafigura Group,
for criminal offences related to the dumping in
Côte d’Ivoire. The alleged offences included:
the intentional pollution of the environment in
Côte d’Ivoire with substances that constituted
a serious public health threat; manslaughter;
and serious bodily injury. 706 Greenpeace
argued that the Netherlands could and should
prosecute Trafigura for alleged offences
committed in Côte d’Ivoire, given that Trafigura
Beheer BV is a Dutch company and the acts
committed in Côte d’Ivoire were offences in
both Côte d’Ivoire and the Netherlands, and
therefore met the double criminality rule.
Greenpeace asked the court to order the
prosecutor to investigate these offences.
However, after a lengthy debate during
several court sessions, on 13 April 2011,
the Court of Appeal rejected Greenpeace’s
complaint. The court found that the Public
Prosecutor has a margin of discretion in
deciding which offences are in the public
interest to investigate and prosecute, and that
he has sole authority to decide which cases
to pursue. In making this decision, the court
considered a number of arguments that had
been brought by the Public Prosecutor.
It first considered whether the complaint was
admissible, and whether Greenpeace was an
“interested party”. In making this decision,
the court found that aspects of the complaint
relating to the criminal acts were beyond