the toxic truth - Greenpeace

202 Amnesty internAtionAl And greenpeAce netherlAnds
endnotes
695. Amnesty International English translation of
verdict on Trafigura Beheer BV, LJN (National
Case Law Number): BN2149, District Court of
Amsterdam, 13/846003-06 (PROMIS), para
13.3.8.
696. Amnesty International English translation of
verdict on Trafigura Beheer BV, LJN (National
Case Law Number): BN2149, District Court of
Amsterdam, 13/846003-06 (PROMIS), para
13.3.9.
697. Amnesty International English translation of
verdict on Trafigura Beheer BV, LJN (National
Case Law Number): BN2149, District Court of
Amsterdam, 13/846003-06 (PROMIS), para
13.3.1. “The Court admonishes Trafigura for
choosing not to account for its methods during
the public hearing. In a case such as the current
one, a legal entity may be expected to at least
appear at the hearing on the merits of the case
in order to explain its standpoint, and to offer
the Court and the Public Prosecutor’s Office
the opportunity to ask questions about certain
choices which were made.”
698. “Samenvatting vonnissen Broom II” (Summary
of verdicts), Part III Assessment of the merits
of the cases, available in Dutch at www.rechtspraak.nl/NR/rdonlyres/B23246A4-B778-4F10-8F76-DBB2E8AE334B/0/SamenvattingvonnissenBROOMIIgeanonimiseerd.pdf
(accessed 25
October 2010). Amnesty International English
translation, p14.
699. Amnesty International English translation of
verdict on Trafigura Beheer BV, LJN (National
Case Law Number): BN2149, District Court of
Amsterdam, 13/846003-06 (PROMIS).
700. Amsterdam court website (accessed 5 January
2012): www.rechtspraak.nl/Organisatie/Gerechtshoven/Amsterdam/Nieuws/Pages/FineimposedonTrafigura.aspx
701. Amsterdam court website (accessed 5 January
2012): www.rechtspraak.nl/Organisatie/Gerechtshoven/Amsterdam/Nieuws/Pages/FineimposedonTrafigura.aspx
702. Amsterdam court website (accessed 5 January
2012): www.rechtspraak.nl/Organisatie/Gerechtshoven/Amsterdam/Nieuws/Pages/FineimposedonTrafigura.aspx
703. Amnesty International English translation of
verdict on Trafigura Beheer BV, LJN (National
Case Law Number): BN2149, District Court of
Amsterdam, 13/846003-06 (PROMIS).
704. The examination in court of the case had taken
place during the hearings held on 26 June
2008, 2 July 2008, 2 and 10 April 2009, 28
October 2009, 6 November 2009, 10 and 16
March 2010 (pre-trial reviews) and the hearings
held on 1, 2, 10, 15, 16, 21, 24 and 28 June
2010 and 1, 2 and 9 July 2010 (hearings on the
merits of the case). English translation of verdict
on Trafigura Beheer BV, LJN (National Case Law
Number): BN2149, District Court of Amsterdam,
13/846003-06 (PROMIS), p1. In his address
during the pre-trial review on 26 June 2008 the
public prosecutor stated: “The question whether
offenses possibly committed in Côte d’Ivoire
should be part of this investigation has been
considered. It has been decided that it should
not. It has appeared impossible to conduct
an investigation in the Ivory Coast, in spite of
attempts to do this.” (“De vraag of eventueel in
Ivoorkust gepleegde strafbare feiten onderdeel
zouden moeten zijn van dit onderzoek is onder
ogen gezien. Hiervan is afgezien. Het is niet
mogelijk gebleken om onderzoek in Ivoorkust te
doen, ondanks pogingen daartoe.”)
705. For example, a claim brought by PKL, an Ivorian
baby food company, which alleged that it had
suffered economic prejudice as a result of
contamination to its food products, was found to
be inadmissible by the Dutch court. The Dutch
court found that 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). Amnesty
International English translation of verdict on
Trafigura Beheer BV, LJN (National Case Law
Number): BN2149, District Court of Amsterdam,
13/846003-06 (PROMIS), para 1.2.2. At
this same hearing, the Court considered that:
“even without further investigation, it could be
determined that direct damage was not inflicted
upon Protein Kissee s.a. as a result of the
offences with which Trafigura is being charged
(Section 333, Dutch Code of Criminal Procedure
[Sv]), and has found its claim to be evidently
inadmissible.”
706. The complaint was made under Article 12 of the
Dutch Code of Criminal Procedure; relevant sections
cited include: s.173a, 287, 302, 307, 308,
309, 225 and 140 of the Dutch Criminal Code.
707. This included the criminal law provisions (manslaughter,
serious bodily injury, criminally negligent
homicide, serious and criminally negligent bodily
harm or an offence committed in office or while
carrying on a profession) under which Greenpeace
demanded prosecution.
708. Judgement of the Court of Appeal of the Hague,
Decision given on account of the Complaint
under Section 12 of the Dutch Code of Criminal
Procedure (to be further referred to as: DCCP)
received at the Registry of this Court of Appeal
on 16 September 2009 and lodged by Stichting
Greenpeace Nederland, English translation p15.
709. Judgement of the Court of Appeal of the Hague,
Decision given on account of the Complaint
under Section 12 of the Dutch Code of Criminal
Procedure (to be further referred to as: DCCP)
received at the Registry of this Court of Appeal
on 16 September 2009 and lodged by Stichting
Greenpeace Nederland, English translation
pp17-21.
710. Judgement of the Court of Appeal of the Hague,
Decision given on account of the Complaint
under Section 12 of the Dutch Code of Criminal
Procedure (to be further referred to as: DCCP)
received at the Registry of this Court of Appeal
on 16 September 2009 and lodged by Stichting
Greenpeace Nederland, English translation
pp17-21.
711. Legal advise obtained by Amnesty International.
712. The claim was brought against both Trafigura’s
UK-based subsidiary Trafigura Ltd, which took
the relevant operational decisions that led to
the dumping, and Trafigura’s Dutch parent company
Trafigura Beheer BV.
713. As at 16 September 2009, USD1=EUR
0.6803733179, www.xe.com/ucc/
714. Civil Procedure Rules, Rule 21.10; this is mandatory
when the settlement involves children
and protected parties. This is done to ensure
that the monies are appropriate and properly
invested; to provide protection from the lack of
experience or skill of their lawyer; and to ensure
that the lawyers are only paid the proper amount
of their costs, available at www.justice.gov.uk/
courts/procedure-rules/civil/rules/part21 (accessed
May 2012)
715. Mr Justice MacDuff’s statement continues: “[…]
I have been following what has been happening
in the media both in the newspapers and on
television and radio. I have myself witnessed
how wildly inaccurate some of the statements
have been. It can all be put right with the Final
Joint Statement. Speaking for myself, I hope the
press […] who have made statements which
now turn out to be wrong will take note of the
Joint Statement.” available at www.trafigura.
com/PDF/Official%20TRANSCRIPT%20of%20
MacDuff%20hearing%20of%2023.09.09%20
OPEN%20SESSION.PDF, (accessed May 2012).
716. Motto & Ors v Trafigura Ltd & Anor [2011] EWHC
90201 (Costs) (15 February 2011), paras 70
and 109.
717. Legal Aid, Sentencing and Punishment of Offenders
Act, 2011.
718. CNVDT-CI did not appear on any of the court
documents in the UK case and the High Court
confirmed that only Leigh Day had authorization
under the settlement agreement to distribute
the compensation money to the named claimants.
719. The account was placed under an escrow, with
SGBCI (Société Générale de Banques en Côte
d’Ivoire) as a trustee until “the competent jurisdiction
gives a definitive ruling on the question
of possession of the [compensation fund]”. “By
22 October, Leigh Day had already distributed
PIN numbers to around 90% of Claimants and
planned to start distribution of bank cards on 2
November.” Leigh Day Press Briefing Paper, 12
November 2009.
720. See decree n° 2012-452 of 22 May 2012, available
at www.gouv.ci/une_1.php?recordID=2403.
See also RFI, Adama Bictogo n’est plus Ministre
de l’Intégration 23 May 2010, www.rfi.fr/
afrique/20120523-cote-ivoire-Adama-Bictogon’est-plus-le-ministre-integration-africaine-