156. In the present case, the Court notes that the victims were not prevented
from accessing the national courts, as evidenced by the numerous
decisions handed down by those courts, including the final judgment of 23
July 2014 handed down by the Joint Chambers of the Supreme Court. It
cannot be disputed, therefore, that the right to an effective remedy was
guaranteed since domestic remedies were available. Furthermore, the
Parties agree that, by signing the MoU, the Respondent State created for
TRAFIGURA, and all other persons involved, a regime of impunity through
immunity from prosecution. Undoubtedly, the said Memorandum rendered
local remedies unavailable, at least to victims other than those who initiated
proceedings before national courts.
157. Furthermore, while the Respondent State does not dispute that at least one
hundred thousand (100,000) people were victims of the waste dumping,
domestic courts awarded compensation to only seven (7), at most, of the
more than sixteen thousand (16,000) victims who were party to the domestic
proceedings. Actions by other victims were dismissed on the grounds that
they could not establish causality between the damage they suffered and
the toxic waste dumping. The Court finds that regarding a matter of such
magnitude, the domestic courts had the obligation to extend the scope of
the investigations in order to take into account the cases of all the victims
and award them the reparations as necessary.
158. In any event, the MoU unequivocally proves not only the liability of those
involved but also the harm caused to the victims since the State agreed to
guarantee immunity and receive funds it had earmarked for the purpose of
compensating the victims. The Respondent State, which did not submit on
this point, also did not provide evidence that the funds received under the
MoU with TRAFIGURA were actually paid to the victims.
159. On the same point, the Court notes that certain aspects of the right to an
effective remedy, such as the full identification of victims and the
remediation of contaminated sites, were not taken into account during the
proceedings before the national courts. On this point, the Court considers
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