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nrc.nl: Dutch corruption case against Shell is, according to lawyers, inevitably delayed

Printed below is a translation of an article published this weekend by the Dutch broadcaster NRC. It is about the Shell internal communications and documents relating to the OPL 245 Nigerian oil deal corruption case seized during a raid carried out by the Dutch Fiscal Information and Investigation Service (FIOD) at Shell HQ in the Hague in 2016. In a controversial move, Shell lawyers are resorting to legal machinations to frustrate the progress of the Dutch proceedings. On this occasion by claiming legal privilege and secrecy over the seized evidence. Criminal proceedings relating to the same massively corrupt oil deal are moving forward quickly in Italy (but at a snail’s pace in the Netherlands, Shell’s home country). A related tapped telephone conversation involving Shell CEO Ben van Beurden when he ordered that no documents should be volunteered to the investigators carrying out the raid can be heard here. Undisputably, another Shell cover-up tactic. So much for Shell’s claimed business principles from a company that seems to employ more MI6 people than MI6. Listen to the taped call. 

Dutch corruption case against Shell is, according to lawyers, inevitably delayed

Professional secrecy

Call for OM to simplify procedures related to non-disclosure law encounters astonishment among lawyers and scientists

By our editors Carola Houtekamer and Merijn Rengers: Amsterdam.

Shell and the Public Prosecution Service were honest about it on Thursday. Yes, they clash over the internal Shell documents that were seized by the FIOD investigation service at the head office in The Hague during the beginning of 2016. They deal with the corruption case involving OPL245, a mega-oil field off the coast of Nigeria.

The Dutch and Italian Public Prosecutors suspect Shell, together with Italian counterpart Eni, of paying hundreds of millions of euros in bribes to Nigerian officials and politicians. The criminal case in Milan is on track – judgments are expected sometime in early 2020. But there is not much progress in the Netherlands.

The OM and the Fiod want nothing more than to get started with the paper and digital files that were seized over 3 years ago, but are not allowed to do so. The reason: they would fall under the legal privilege of Shell lawyers – both external lawyers and employed lawyers.

Until the examining magistrate has ruled on this, the matter is in fact still. A first assessment of the usefulness of the documents is expected this summer. All in all, the case against Shell can be delayed for years. To counteract this, the Public Prosecution Service argues for faster rules regarding non-disclosure law. If that does not happen, it will be practically impossible to prosecute a multinational, said Bert Langerak, investigator at the Fiod, on Thursday in NRC.

Almost every Dutch multinational has lawyers in paid employment. According to Langerak, their professional secrecy threatens an impenetrable legal wall to lay down the administration of large companies.

World upside down

Tim de Greve reads this reasoning with astonishment. The Stibbe lawyer is involved in a lengthy fight with the Public Prosecution Service about the legal privilege, in the case of the Eindhoven asset manager Box Consultants. “The OM has used hundreds of confidential e-mails in its investigation there,” says De Greve, who won a number of legal proceedings at the court and court in Den Bosch.

He calls it “the world upside down” that the OM “suddenly” calls for other procedures. “If OM and Fiod themselves adhere to the rules, there is nothing wrong. Then there is no delay either. The fact that the media now says that they want it differently with regard to the privilege of non-disclosure is a fairly transparent attempt to eradicate the non-disclosure right on incorrect grounds. ”

Barbara van Straaten from the Amsterdam office Prakken d’Oliveira is a lawyer for four action groups (two English, one Italian and one Nigerian) who reported corruption by Shell and Eni in the Netherlands and Italy. She is particularly disappointed that the criminal case in the Netherlands is being delayed by the clash over the legal privilege.

“In Italy, the case was handled energetically and two people have already been convicted. My clients do not understand that the persecution in the Netherlands does not get off the ground. All the more as there is a risk that criminal offenses will become time-barred, “she says.

According to Daan Asser, emeritus professor at Leiden University and former Supreme Court Counsel, it is an illusion to think that the Public Prosecution Service could invoke the right of non-disclosure with an appeal for delay in criminal cases. “The free movement between lawyer and client is extremely important. You can say that it is bothering you as an OM, but then you better organize it. Ultimately, the judge must judge what is covered by professional secrecy and what is not. ”

According to him, discussions about legal privilege fit into a global trend. “This also happens elsewhere, certainly in the Anglo-Saxon countries. I would say: logical that this is now also happening in the Netherlands. ”

Examining magistrate

Emeritus professor of criminal law at the University of Groningen Feikje Vellinga-Schootstra says that the solution must be sought in a stronger position of the examining magistrate. They should be given more powers and staff to be able to decide as quickly as possible on the selection of possible secret documents. “Both the Public Prosecution Service and lawyers must be followed critically,” she says. “There is a nice bill on this, but it costs money to expand the duties of the examining magistrate. That budget is not there yet. ”

In addition, she has bad news for those who hope that the advocacy law will be settled quickly. “They are complicated doctrines. Good thought needs to be given to this. ”

A version of this article also appeared in NRC Handelsblad on 8 June 2019

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