that although the State acknowledges that more than one hundred thousand
(100,000) persons were victims, it did not produce a complete list of victims
as it did not submit on the merits in relation to the allegations under
consideration.
160. Furthermore, the information on record indicates that although remediation
operations were carried out, they were not enough to decontaminate all the
sites. Moreover, remediation in the present case did not guarantee the total
and definitive cessation of the consequences of the dumping as victims
continued to be affected beyond November 2015, when the Respondent
State declared an end to the remediation operations.
161. In the light of the foregoing, the Court finds that the Respondent State failed
to guarantee the right to an effective remedy in respect of the aspects
relating to the complete identification of victims and the remediation of the
sites concerned.
162. With regard to the obligation to prosecute emanating from the right to an
effective remedy, the Court notes that only two directors of TRAFIGURA
were sentenced to prison terms for poisoning and attempted poisoning.
Further, no agent or official of the Respondent State was found guilty in the
wake of the domestic judicial proceedings. In any event, under the terms of
the MoU of 13 February 2017, the Respondent State undertook to
guarantee the entities and individuals involved immunity from prosecution.
It is in application of this MoU that TRAFIGURA executives were released
and authorised to leave the country. Accordingly, the Court finds that the
Respondent State failed to ensure the right to an effective remedy in relation
to the prosecution and punishment of those liable for the toxic waste
dumping.
163. In view of the foregoing, the Court finds that the Respondent State violated
the right to an effective remedy protected by Article 7 (1) read together with
Article 1 of the Charter.
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