Update: 29.05.2013

No test case after all – no charges filed against Nestlé in Switzerland

Swiss authorities have not filed charges against Nestlé in the case of Colombian trade unionist Luciano Romero. Fourteen months after the filing of charges, the public prosecutor’s office of the Canton of Vaud decided not to take any legal action against Nestlé AG managers or the enterprise for negligent homicide, on the ground that the killing of the Nestlé trade unionist Romero had expired by limitation.

In March 2012, charges had been filed against Nestlé and members of its senior management with the public prosecutor's office of the Canton of Zug. The European Center for Constitutional and Human Rights (ECCHR) and the Colombian trade union Sinaltrainal accuse Nestlé of being in part responsible for the death of the trade union leader who had worked for the Nestlé subsidiary Cicolac. Luciano Romero had been tortured and murdered by paramilitaries in 2005.

«Swiss jurisdiction is unwilling»

The European Center for Constitutional and Human Rights (ECCHR) states that «instead of starting the investigation with due quickness, the public prosecutors have slowed down the proceedings by means of formalities until the issue was finally time-barred». The European NGO had filed the charges in the Canton of Zug, but no investigations were initiated there and were forwarded to the Canton of Vaud.

The ECCHR continues to state that this course of action shows that Swiss jurisdiction is unwilling to pursue allegations against Swiss enterprises. Moreover, Swiss law offers practically no possibilities to non-European victims to take legal action before courts.

Commentary

The dismissal of the case is a failure for the ECCHR, affiliated organisations and the victim’s widow. The latter had filed separate charges and is willing to lodge a complaint against the decision.

The case against Nestlé in Switzerland was considered to be a European test case. It was to demonstrate the extent to which multinational enterprises are to be liable. From a human rights perspective, the negative preliminary decision of the cantonal investigation bodies is very unsatisfactory, since the legal situation is still unclear. It would have been important for NGOs, politicians and Swiss enterprises to find out more about the possibilities provided by the Swiss legal system in order to bring an enterprise and the members of its senior management to justice. The decision by the cantonal authorities supports the impression that existing legal regulations do not suffice.

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Who is responsible?

According to a background report on the Swiss legal situation by the ECCHR, the defendants are accused «of being responsible, by failing to take precautionary measures». Nestlé and the management, as owners and protectors, would have been obliged to act in order to prevent the crime, continues the ECCHR.

The murder was committed within the context of a prolonged conflict at the Nestlé subsidiary Cicolac during which trade unionist and other social groups were exposed to systematic persecution in particular by paramilitaries and is one of twelve murders of unionised Nestlé employees. In the years before his assassination Romero had also been falsely branded a guerrilla fighter by leading Cicolac representatives – in Colombia such defamations can be equivalent to a death sentence. In addition, the local Nestlé management was closely intertwined with the paramilitary on various levels. Apparently there is also evidence that the local subsidiary executed payments to paramilitary groups.

Will there be a trial in Switzerland?

The trade union Sinaltrainal has tried to call Nestlé to account for the murder of Romero. In Columbia the murders have been seized and tried, but the investigations against Nestle came to nothing. Up to now, no such legal steps ever were successful in the United States and before the International Labour Organization (ILO) and never any charges were pressed.

The case against Nestlé in Switzerland is a European precedent which will show to what extent a transnational company will be held responsible here. The legal situation is unclear and the outcome depends to a great degree on the quality of the investigations of the public prosecutor of the canton of Zug. It is in any case interesting for Swiss multinational companies, NGOs and politicians to see which possibilities are inherent in Swiss law already today in order to bring to justice a Swiss company and its management in a concrete case.

Analysis of the Swiss legal situation

ECCHR sees two possibilities in Swiss criminal law to take action against tort by members of economic enterprises. On the one hand, responsible individuals can be held accountable for omission according to Art. 11, Para. 2, Sub-para. d of the Swiss Criminal Code (in German), if they fail to act contrary to duty, endanger somebody or do not prevent the violation of a legal interest protected by the criminal code. On the other hand, there is the possibility of legal action according to Art. 102, Para. 1 of the Swiss Criminal Code (in German), if the criminal offence cannot be attributed to an individual. It provides the legal instruments necessary to take measures against an enterprise, even if organisational deficits within the company do not allow attributing the crimes to an individual.
In the context of Art.11 Swiss Civil Code, the EECHR argues that the management of the Nestlé subsidiary accepted the endangerment of the later victim by their statements before a public. This defamation encouraged the perpetrators to take action against Romero. The local management therefore to some degree are accomplices in crime. In addition, the Nestlé subsidiary is said to have done business with suppliers sympathising with the paramilitary. According to the ECCHR this well-known fact should have had to be investigated with a risk analysis, which would have substantiated the risks for Nestlé employees.
But a risk analysis a protective measure for own employees has never been decreed, even though this would have met customary standards in this line of business. Within the context of an armed conflict this is tantamount to omission, as the ECCHR continues. The risk for active unionists working for the Colombian Nestlé subsidiary is foreseeable, and the crime was therefore accepted within the framework of the object of the company. In case the investigations cannot prove the culpability of individuals, the ECCHR suggests an examination of possible organisational deficiencies within the enterprise. Subsequently, it is necessary to check with Nestlé whether the company took enough precautionary measures to avert liability according to Art. 102 Para. 1 of the Swiss Criminal Code.

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