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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