Dutch Supreme Court: President-director Trafigura can be prosecuted
Supreme Court (Hoge Raad) 30 January 2012, case nr. R.1115-10, LJN BV2230
The Supreme Court of the Netherlands decided that the president-director of Trafigura can be prosecuted for his share in the ordering for or directing of the illegal export of hazardous waste from The Netherlands to Ivory Coast in August 2006. His lawyers had pleaded that criminal prosecution should be dismissed, notably because a case against him in Ivory Coast had already been dropped. The defender pleaded that instigating his prosecution in the Netherlands would constitute a violation of the ne bis in idem principle. It was also brought forward that the Dutch judiciary has no jurisdiction in the matter. Finally, it was pleaded that it would be very unlikely that a judge would find him guilty since evidence for his involvement is lacking.
The ne bis in idem claim was rejected by the Supreme Court, notably because the decision in Ivory Coast where the cargo of the Probo Koala was dumped, did not touch upon the same facts as the ones for which the Dutch public prosecutor seeks a conviction. Since the illegal export (violating Dutch rules based on the applicable EU Regulation on export of waste) took place from the Netherlands to a state from the African, Caribbean and Pacific (ACP) Group, the Dutch courts have jurisdiction to deal with the case. Finally, the Supreme Court took note of the conviction of the company Trafigura of 23 December 2011 by the District Court of Amsterdam (Hof Amsterdam, case nr. 23-003334-10, LJN BU9237, MenR 2012/42 with annotation by Douma en Van Ham) in which a fine of 1.000.000 Euro was imposed and found that it was not very unlikely that the evidence would lead to the conclusion that the suspect, although he had the authority and was obliged to do so, refrained from taking measures that would prevent the illegal export and thus consciously accepted the significant chance that the illegal activities would take place and/or ordered them to take place.
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