Nestlé precedent case: Murder of trade unionist Romero in Colombia
European Court of Human Rights blocks Nestlé/Romero case
No justification and no chance of appeal: The European Court of Human Rights (ECtHR) has dismissed a complaint against Switzerland from the widow of murdered Colombian trade unionist and Nestlé worker Luciano Romero. There is no possibility of lodging an appeal against this decision, for which the Court did not give reasons - claimants in the Nestlé/Romero case have now exhausted all legal avenues in Europe. ECCHR submitted the complaint on behalf of Romero’s widow on 18 December 2014 calling on the ECtHR to examine whether the Swiss judiciary adequately investigated Nestlé’s responsibility for Romero’s murder. The Court could have taken this opportunity to clarify how to ensure that victims of human rights violations committed by corporations have access to justice, as provided for in the UN Guiding Principles on Business and Human Rights. The ECCHR is currently holding talks with Colombian partners on potential routes for further action.
No investigation on Nestlé's Role in Romero case
The Swiss judiciary dismissed all claims against Nestlé in the Romero case. In July 2014 the Swiss Federal Supreme Court held that the crimes in question were now statute-barred. “The lapse of the statute of limitations, a lack of jurisdiction, investigatory difficulties – it’s always the same arguments. European corporations are almost never held accountable in their home states for human rights violations committed abroad,” says ECCHR's General Secretary Wolfgang Kaleck. “Europe badly needs a catalog of human rights due diligence obligations for corporations!”
According to figures from Colombian sources, almost 3,000 trade unionists have been murdered in Colombia over the past 30 years. 13 of these worked for Nestlé. “Neither Nestlé management nor the Swiss authorities could claim to have been unaware of or powerless against the violence in Colombia,” says Kaleck. “Trade unionists are being systematically murdered in Colombia. The killing of Luciano Romero is not an isolated incident,” says Javier Correa, president of the Colombian trade union SINALTRAINAL, which is assisting with the complaint along with lawyers from Colombia and Switzerland.
The murder of Luciano Romero
On 10 September 2005 trade unionist, human rights activist and former Nestlé-Cicolac employee Luciano Romero was kidnapped, tortured and murdered by members of a paramilitary group. His murder came after a number of death threats that arose in the context of a long-standing labor dispute between the trade union Sinaltrainal and the Nestlé factory Cicolac.
The trade union Sinaltrainal had reported the death threats made against Romero and other members to the Nestlé subsidiary in Colombia as well as to the parent company in Switzerland. Instead of taking the necessary precautionary measures, local Nestlé-Cicolac managers spread libelous reports that Luciano Romero and his colleagues were reputed to be members of the guerilla, rumors which put these individuals in even greater danger. The parent company Nestlé in Switzerland failed to take actions to prevent the threats and defamations
Criminal proceedings were launched in Colombia resulting in the conviction of the direct perpetrators of the murder of Luciano Romero. In his verdict the Colombian judge stated that Nestlé’s role in the crime was of particular relevance and ordered an investigation to look into the matter in more detail. The Colombian prosecution authorities, however, has to date failed to take up the issue.
ECCHR criminal complaint against managers at Swiss parent company
On 5 March 2012 ECCHR and the Colombian trade union Sinaltrainal filed a criminal complaint against Nestlé and some of its top managers with the Swiss prosecution authorities in Zug. The complaint accuses the Nestlé managers of being in breach of their obligations by failing to prevent crimes of the Colombian paramilitary groups and failing to adequately protect trade unionists from these crimes. The prosecution passed the case on to authorities in Vaud which have jurisdiction over the company’s other headquarters in Vevey. Prosecution authorities in Vaud closed the proceedings on 1 May 2013.
The prosecution failed to address the substance of the criminal complaint, rejecting the claim and closing the proceedings on the basis that the crimes were now statute-barred. The appeals lodged by Romero’s widow against the closing of the proceedings were dismissed in all instances and ultimately rejected in a decision by the Swiss Federal Supreme Court of 21 July 2014.
The Supreme Court affirmed the findings of the prosecution authorities and the cantonal court that the crimes are statute-barred. In doing so it departed from the view held by the Federal Council and much academic commentary that the criminal liability of corporations represents an ongoing offence – with the effect that the crime in this case would not be statute-barred. The court dismissed the proceedings on formal grounds.
The argument based on the statute of limitations highlights the urgent need for law reform. The Nestlé/Romero case also sets a precedent for others showing that corporations with complex organizational structures can in practice benefit from the long period of time required to undertake investigations.
The Supreme Court did however go some way toward clarifying the duties of corporations. It held that corporations must ensure, among other things, “a clear description and division of responsibilities and authority” as well as “specific and named plans of work within the corporation”. Yet the rejection of the call for an investigation means that it remains unclear whether or not Nestlé fulfilled this obligation.
This left the European Court of Human Rights as last instance, where ECCHR brought a complaint on behalf of Romero’s widow against Switzerland in December 2014. But the court rejected the case in March 2015 – without justification.
The case of Luciano Romero was submitted to the International Criminal Court in The Hague, as one example of the systematic persecution of trade unionists in Colombia. In Colombian criminal proceedings, the murder was qualified as a crime against humanity.