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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-B778-4F108F76-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.
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.
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.
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.
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.
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.
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.
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-