The non-governmental organisations (NGOs) Re:Common (Italy), HEDA Resource Centre (Nigeria) and Corner House (UK) announced today that they filed a complaint at the Court of Appeal in The Hague challenging the decision by the Dutch Prosecutors Office to drop its investigation of Shell and Shell management relating to alleged corruption in Nigeria.
The Complaint was filed by the Dutch law firm Prakken pursuant to Article 12 of the Dutch Code for Criminal Procedure. Article 12 permits interested parties to challenge prosecutorial decisions not to investigate or prosecute an alleged crime.
In 2017, the three NGOs sought an investigation by the Dutch Prosecutors Office into Shell’s involvement in the 2011 acquisition of the exploitation rights to the Nigerian oil block OPL245. They have since submitted further concerns relating to Shell’s divestments of oil mining licences in the Niger Delta.[1]
Separately, Shell also reported a senior manager to the Dutch Prosecutors Office for bribery relating to one of the oil field divestments.
The Dutch Prosecutors Office told Shell in March 2018 that it had evidence to prosecute the company.
Shell and other defendants, including the Italian oil multinational Eni, were prosecuted in Milan over the OPL245 deal but acquitted in 2021. An appeal against the judgment was withdrawn in July 2022 under controversial circumstances[2], although the Federal Republic of Nigeria is still contesting the judgment as a civil party. The judgment has been severely criticised by the Organisation for Economic Cooperation and Development (OECD), the body that acts as guardian of the OECD Anti-Bribery Convention, which provides the basis for Italy’s laws criminalising the bribery of foreign officials.[3]
Following the collapse of the case in Italy, the Dutch Prosecutors Office announced that it would be dropping its investigations into the alleged corruption due to double jeopardy rules which do not permit prosecutions where a defendant has been acquitted for the same crime in another jurisdiction.
Re:Common, HEDA and Corner House are challenging the Prosecutors’ decision. In their court filings, they acknowledge that Royal Dutch Shell plc cannot be prosecuted for bribery in relation to the OPL245 deal (the substance of the Italian prosecution) but contend that there is sufficient evidence to warrant further investigation and prosecution for a range of other crimes, including money laundering, fencing, fraud, theft and membership of a criminal organization.
The NGOs name two Shell companies, and other high profile Shell executives (none of whom were charged in Italy) as suspects.
According to Antonio Tricarico from Re:Common, “There are overwhelming suspicions of criminality regarding this case. The rule of law demands that prosecutable crimes should be prosecuted. We urge the Dutch Public Prosecutors' Office to step up for justice.”
“The DPO must continue its investigations and follow the evidence where it leads”, says Olanrewaju Suraju. “Justice demands nothing less.”
Nick Hildyard from Corner House notes, that “There is an overwhelming public interest in reopening the investigation. Shell should not be accorded special treatment because it is a major international company.”
The complaint was filed by Prakken d'Oliveira lawyers Barbara van Straaten and Tamara Buruma.
[1] https://www.prakkendoliveira.nl/en/news/2017/criminal-complaint-against-shell-on-account-of-corruption-opl-245-deal.
[2] Dr Fabio de Pasquale and his colleague Sergio Spadaro, who prosecuted the OPL 245 case in Milan, have been targets of intimidation, surveillance and unwarranted prosecution. There are widespread concerns that the prosecution was motivated by a political desire to remove de Pasquale as the lead prosecutor in the Appeal against the acquittal of Shell, Eni and other defendants. In the event, he was replaced: and the new prosecutor dropped the Appeal.
[3] In a review of Italy’s compliance with the OECD Anti-Bribery Convention, the OECD’s Working Group on Bribery explicitly states that elements of the judgment did "not conform to the Convention". The OECD report (Implementing the OECD Anti-Bribery Convention: Phase 4 Report – Italy) is available at https://www.oecd.org/daf/anti-bribery/italy-phase-4-report.pdf.