Rough translation of some of the charges
By Barbara With on Thursday, November 28, 2013 at 12:43pm
This is a decision of the Provincial Court of Sevilla in response to an appeal entered on November 9, 2012 by François Fleury, William Thomas Williams, and Paz Cosmen Shortman Cosmen of a court decision of September 14, 2012 which rejected their previous appeal of a court decision of May 9, 2012 that initiated [intermediate] proceedings against them. The Fiscal Ministry and the Provincial Federation of Ecologists Acting on behalf of Sevilla had called for a rejection of that appeal. The appellants wanted the proceedings dismissed. The court reviewed the materials, declared itself to have standing, and deliberated.
“Fundamental Judicial Principles”
“Primero.” The next section is the judicial basis for the charges. I can’t quite understand the basis for the appeal, but it might say that the charges were frivolous. The Sevilla decision states that the purpose of the proceedings of May 9, 2012 was to determine what punishable acts had been committed and what penalties should be imposed. It quotes the Supreme Tribunal as stating that if there is reasonable cause a trial should be continued and not dismissed.
“Segundo” states at a certain law has been modified but only as far as penalties are concerned. The law, article 325 of the penal code, regulates protection of the environment and the paragraph lists all the things that are included in crimes against the environment. I think it says that offenses against the environment are liable to a monetary fine and offenses that risk causing danger to humans can result in a prison sentence. The Supreme Tribunal set forth in 2004 three conditions that must be meet simultaneously for this article to be applied: 1) the commission of any of the acts described in the preceding paragraphs, 2) that the acts were contrary to prevailing laws or regulations; and 3) that there was a grave risk of harm to the natural system in terms of a concrete danger. It goes on to elaborate on these, stressing that the acts have to be not merely administrative violations, but intolerable to the environment. It goes on to describe how violations have to be really horrible.
“Tercero” describes how the Fiscal Ministry charged on September 23, 2008 that there had been illegal construction of rafts and extraction and injection of water that altered the permitted volume and affected public water by introducing noxious substances including arsenic by the company “Cobre Las Cruces, S.A.,” for which the appellants were the responsible parties, in the copper mine “Las Cruces” in the provincial town of Gerena, between June 2006 and November 2008. A hydrometallurgical plant was attached to the open-air mine that served to extract copper cathodes through leaching and extracting with solvents. Due to the risk of destabilization of the banks and the injection of arsenic into the water, which was expressly prohibited in the authorization permit of the mine. The Hydrographic Confederation of Guadalquivir suspended its permit for the mine on May 12, 2008.
On April 2, 2008 the HCG detected contaminants in samples of water, including arsenic in concentrations above the limits established by Decree 140/2003. It was concluded that this was due to a concrete influence from the operation of the mine and was not a natural contamination of the aquifer. It was determined that the elevated arsenic levels began at the same time that the mine began operations. This aquifer has been used for irrigation and in times of drought for human consumption. This leads to the conclusion that there exist rational indications of the commission of violations under article 325 and accordingly of application of the penal code in terms of the reasonable probability argument set forth above and justifies the accusations as made.
Each of the appellants is personally responsible. Fleury, being the CEO of “Cobre Las Cruces,” carries the maximum responsibility, having been regularly informed of the operations of the mine. Williams was at this time responsible for the area of the mine that was being investigated, specifically in 2008 the area of subterranean and surface waters. And Cosmen was the director for the environment, responsible for all environmental aspects of the mine, which were directly affected by the investigations.
“Cuarto.” As a result of these allegations, because of repeated failure to comply on the part of the company with the conditions of its authorization to operate and because of the harm caused, for example, as much by the contamination of surface and subterranean waters as by the (illegal) withdrawal of water to be used in drainage injection, the company was fined a total of 2844,209.60 Euros on May 16, 2008 by the Ministry of the Environment.
“Quinto.” Thus it has been shown that the principle of administrative sanctions [as requested by the appellants] must cede to penal punishment. Then there’s a passage that I think says that in the case of penal adjudication the administrative will be considered to be part of it to avoid double jeopardy.
“Sexto.” Therefore, in light of what has been presented here, all three appeals are hereby rejected. I believe the next sentence says that they have to pay the costs of the appeals process.
WE AGREE: that the appeal of the appellants François Fleury, William Thomas Williams and Paz Cosmen Shortman is denied.
We confirm the decree of September 14, 2012 and with it the previous one of May 9, 2012 and declare that the potential costs of the appeal are valid.