Criminal Complaint against Nestlé Switzerland concerning murder of Colombian trade unionist Luciano Romero

1 August 2014 - On 5 March 2012 ECCHR and the Colombian trade union Sinaltrainal lodged a criminal complaint in Switzerland against Nestlé and five of its top managers. They are accused of contributing through negligence to the death of Luciano Romero, who was murdered by paramilitaries on 10 September 2005 in Valledupar, Colombia. The accused had knowledge of the threats made against Romero but failed to use the resources at their disposal to prevent the murder. Before his death, Romero had for many years worked for the Colombian Nestlé Cicolac and was a trade union leader for the Colombian food industry trade union Sinaltrainal.

Colombia continues to be plagued by an armed conflict in which trade unionists and other groups are subject to systematic persecution. The direct perpetrators of the crimes were convicted in Colombia in 2006 and 2007. Such convictions are rare in Colombia, the country with the world’s highest rate of murders and intimidation of trade unionists. At the close of these proceedings in 2007, the Colombian court called for a criminal investigation into the role of Nestlé subsidiary Cicolac as well as the parent company, yet no such investigation was carried out. Despite ample indications of criminal liability, no prosecutor in Switzerland or in Colombia has initiated an investigation. Colombian lawyers and trade unionists together with the ECCHR have taken up work on behalf of the family of Luciano Romero and begun an investigation into the circumstances of the case.
 
The criminal complaint set a legal precedent as it marked the first attempt to hold a Swiss company liable in Switzerland for a crime committed abroad. The provision of Article 102 on the criminal liability of companies was added to the Swiss Criminal Code in 2003 but has rarely been applied.
 
The murder of another Nestlé employee and trade unionist in Colombia in November 2013 shows that nothing has changed when it comes to Nestlé’s treatment of its trade unionists. Contrary to claims made at conferences and on the company’s website, Nestlé continues to put its employees and trade unionists in situations of extreme danger. Once again, this latest trade unionist murder came after the victim was defamed by Nestlé’s Colombian management.
 
The proceedings show that to date the Swiss judiciary has been unwilling to follow up on substantiated accusations against corporations. Furthermore, Swiss law effectively makes it impossible for non-European victims of human rights violations committed by Swiss firms to enforce their rights in court.

About the Proceedings
Fourteen months after the complaint was submitted, the office of public prosecution in the Swiss Canton of Waadt decided on 1 May 2013 not to launch an investigation into Nestlé and its managers. No investigations have been launched since the criminal complaint was lodged in the German speaking Swiss canton of Zug. Instead, the case was passed over to authorities in the canton of Waadt. Rather than promptly beginning an investigation, the prosecution in Waadt made use of various formalities to delay the proceedings until they could declare that the matter had become statute-barred. The victim’s widow, represented by Zurich lawyers Marcel Bosonnet and Florian Wick, had lodged her own criminal complaint and subsequently appealed against the decision of the Swiss authorities. This appeal was dismissed in December 2013.
 
A new appeal was lodged against this decision before the Swiss Federal Supreme Court based on the cantonal court’s failure to recognize in its decision that in this case, the statute of limitations does not begin to run with the commission of the crime itself. The corporation failed to take any action to remedy organizational deficiencies within the firm. Nestlé’s liability in this case springs from these organizational deficiencies and as a result the case cannot yet be statute barred. In its decision the cantonal court failed to take into consideration the recent Position Paper of the Swiss National Council which supports the legal view put forward by ECCHR and attorney Bosonnet and Wick.

In its decision of 21 July 2014 (published on 31 July), the Swiss Federal Supreme Court dismissed the appeal of the Swiss widow of the assassinated Colombian Sinaltrainal trade unionist and Nestlé-worker Luciano Romero against the closing of the investigations. The Federal Supreme Court confirmed the legal reasoning of the prosecutor’s office and the Cantonal Court, that the investigations were statute-barred. It thereby departed from the interpretation of the Federal Council and great parts of the literature that it is a continuing offence – which, hence, would not be statute-barred in the present case. It brought the proceeding to an end on formal grounds. The real issue of the responsibility of the company Nestlé for the assassination of one of its workers remains unexamined.

With the restrictive interpretation of the Federal Supreme Court there is now a need to reform the statute of limitations. Otherwise in practice companies with complex organizational structures will profit from long investigations – as is apparent in this precedent.

ECCHR, the Colombian trade union, Sinaltrainal, as well as the Swiss and Colombian lawyers of the widow are assessing further legal steps, such as a complaint to the European Court of Human Rights. 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.

 

We can provide a digital copy the criminal complaint (in German or French) on request:

The case was prepared with the support of MISEREOR

Radio Télévison Suiss / Temps Présent, 28 February 2013 (French)