“(…) the author was called by the defense to act as an expert witness in a high profile case in Italy that is helping to shed light on some of the risk factors that have received less attention in recent publications. Strong political pressure and intense media campaigns, in many cases orchestrated by prosecutors, can lead to grave distortions of the facts in the administration of justice. (…) [T]he adverse consequences of a politicized climate inside and outside the courtroom are already sufficiently clear to be able analyze these factors[,] independent of the final result of the trial.”
Martin Killias, San Gallen University Law School
Stephan Schmidheiny inherited the Swiss Eternit company in 1976 when he was 29 years old, and from that point on he became the world leader in the elimination of asbestos from industrial processes.
However, despite his track record — including the early implementation of safety measures that would not be required by the government until many years later — the court of Turin, Italy brought judicial proceedings against the Italian Eternit group for “intentional non-compliance with safety measures” between 1952 and 2008, that “intentionally caused a disaster” that is still going on to this day. The prosecution requested a sentence of 18 years in prison and millions of Euros in damages to be paid to 6000 civilians.
The numerous and serious abnormalities that have been identified in this process have brought the case before the Court of Cassation in Rome. In November 2014 the Court will pronounce its ruling to determine if Stephan Schmidheiny’s rights to a legitimate defense and an impartial trial were upheld.
The reason behind the judicial process involving the asbestos industry may be to bring justice to the victims of this harmful substance. What cannot be explained by the legal proceedings is why Stephan Schmidheiny, who was linked to the asbestos business during a 13-year period but severed ties with it 25 years ago, has been turned into the sole figurehead of this centuries-old industry. Even today, two-thirds of countries across the world have not banned asbestos, and other past and current abestos industry magnates remain unnamed.
It is within reason that judges and prosecutors carry out investigations to repair the social and environmental damages produced by contaminating industries. In this case, however, there is no explanation for how a trial with a guilty party invented by the prosecution was allowed to move forward, instead of seeking the truth that the victims deserve.
“If the prosecutors are not committed to finding the truth, but rather to achieving certain political goals, and if political and media pressures keep the courts from ruling fairly, the criminal justice process can easily be distorted with false conclusions with respect to the pertinent facts of the case.”
“The Schmidheiny case in Turin is an emblematic example of how unfair convictions can be pronounced in a basically democratic country with an independent justice system.”
Martin Killias, San Gallen University Law School
The prosecution alleged that Stephan Schmidheiny, together with Louis de Cartier, a director of the Belgian Eternit group, were the sole people responsible for the Italian company Eternit SpA, and therefore, responsible for 3000 victims of asbestos.
According to the indictment, Stephan Schmidheiny intentionally failed to comply with safety measures at the Italian Eternit group between 1952 and 2008, intentionally causing a disaster lasting from 1952 until the present day, and therefore he should be sentenced to 18 years in prison and millions of Euros in damages to be paid to 6000 civilians.
On February 13, 2012, the Criminal Court of Turin ruled in favor of the prosecution and found Stephan Schmidheiny and his co-defendant guilty of the charges.
The court accepted several of the prosecution’s requests and sentenced each man to 16 years in prison and to pay 80 million Euros in damages for intentional non-compliance with safety measures (Article 437 of Italian Criminal Law) and for intentionally causing a disaster (Article 434 of Italian Criminal Law) in two of the four production plants belonging to the Italian company Eternit SpA.
One year after the sentence was pronounced in the lower court, on February 14, 2013 appeal proceedings began at the Court of Cassation in Turin. At the end of May 2013 the co-defendant, Louis de Cartier, passed away, and the case against him was dismissed.
On June 3, 2013, after only 16 weeks, the Court of Cassation in Turin pronounced its ruling and increased the length of Stephan Schmidheiny’s prison sentence to 18 years. Furthermore, the judges ordered a provisional payment of 90 million Euros in damages to more than 900 civilians.
The case is now being heard in Italy’s highest court, the Court of Cassation in Rome. A ruling is expected in November 2014.
The flaws of the process/The real facts
“A rich man like Stephan Schmidheiny, a citizen of a rich country (Switzerland) who lives abroad, with an enormously successful career in several industrial sectors and who is committed to important environmental and philanthropic activities, fits the profile perfectly for the ideal scapegoat. By placing all of the guilt on one single person, there is no room to consider the roles played by government ministers, public agencies in charge of establishing safety norms in the industry, and even labor unions and local mayors (who are often more concerned with protecting jobs than protecting the health of workers).”
Martin Killias, San Gallen University Law School
The prosecution based its argument on the fact that Stephan Schmidheiny was the “effective director” or the “de facto employer” of the Italian company Eternit SpA, a publicly traded corporation with multiple shareholders.
The truth is that Stephan Schmidheiny never had an operational role, neither as chair nor as a member of the Administrative Board of the Italian company Eternit SpA.
Therefore, the Turin judges have convicted an individual shareholder of a company with multiple shareholders and local executives, a unique case in criminal law across the world.
The Turin judges convicted this shareholder based on a regulation that did not exist in 1986 when the company was permanently closed. Said regulation, which pertains to safety measures for the use of asbestos, was passed in 1992 and was applied retroactively to Schmidheiny, who in fact began to eliminate the use of asbestos as a raw material at the company, as he was suspicious of the health risks that it represented for workers.
The Italian company Eternit SpA, founded in 1906, was a corporation with numerous shareholders.
During the almost 80 years that the company was in operation, the Swiss Eternit Group was the majority shareholder only during its final years, between 1973 and 1986, known as the company’s “Swiss Period.”
Based on workplace studies at the plants, it was found that 97% of the exposure to fibers (measured in “fiber years,” a statistical unit of measurement of the amount of fibers inhaled) took place before 1975.
The amount of fibers inhaled determines the risk of developing diseases caused by asbestos, which means that employees were exposed to the highest amount of asbestos dust, carrying a 99% risk, before 1975.
Stephan Schmidheiny did not assume leadership of the Swiss Eternit Group until 1976. Nevertheless, the above studies were not admitted as evidence by the court, which preferred to demonstrate the guilt of the defendant based on general epidemiological studies between 1952 and 2008.
C. The Swiss Period
The Swiss Eternit Group was the majority shareholder of the Italian company Eternit SpA (which had been in operation since 1906) only between the years 1973 and 1986. These years are known as “The Swiss Period.”
In 1976, at 29 years of age, Stephan Schmidheiny became director of the Swiss Eternit Group. Under his leadership, large investments were made in occupational safety and in improvements to the production plants in order to protect the health and safety of employees. This fact was documented in detail by the defense and was not contested.
Due to the large investments in safety and the development of alternative products – about 70 million Swiss Francs at the time (77.9 million USD) – Eternit SpA’s production became too costly to remain competitive. The company was turned over to the control of a receiver and went bankrupt in 1986.
Thanks to these investments in safety, the exposure to the dust that causes asbestos-related illnesses in these plants was drastically reduced.
At that time, the Italian authorities had not yet passed any regulations or laws regarding the handling of asbestos.
It was not until 1991 that Italy implemented the 1983 European Union directive on asbestos (a regulation regarding the maximum concentration of asbestos fibers permitted in industrial settings), which is to say, eight years after the approval of the directive. Furthermore, the Italian national government did not ban the processing of asbestos until 1992; that is, six years after the Eternit plants in Italy were closed down.
Expert witnesses called by the defense have demonstrated to the court that both the degree of exposure to asbestos as well as the number of related illnesses were drastically reduced during the “Swiss Period.”
Epidemiological studies show that the number of asbestos-related illnesses (asbestosis, lung cancer, and mesothelioma) was significantly lower during the “Swiss Period” when compared to previous years.
During the period that Schmidheiny was involved as a shareholder of Eternit SpA, from 1976 to 1986, it is estimated that 17 workers contracted asbestos-related illnesses, and not the alleged 3000 number of victims.
It is worth mentioning that in none of the 17 cases is it possible to discern when or where the asbestos contamination happened, as the defense was denied access to the medical records, and the records were not accepted as the evidence in the case.
In addition, it is important to note that the latent period before the symptoms of mesothelioma appear can be between 30 to 50 years, and in the places where Eternit SpA operated, asbestos was also processed at many other plants. The following were among the largest plants in operation at the time, along with Eternit:
- Franger Frigor
- Cementeria Marchino
- Filandia Maniseta
Contrary to the prosecution’s allegations, during the 13 years that the Swiss Eternit Group (SEG) was the majority shareholder of Eternit SpA, SEG did not intentionally fail to comply with safety regulations, nor did it cause, intentionally or otherwise, an environmental or health disaster for its workers.
In fact, the Swiss Eternit Group made considerable investments to eliminate exposure to asbestos dust. Consequently, the health risks for the employees of the Italian Eternit group were much lower than at other companies, and compared to the previous 70 years at Eternit itself. With these investments, far from exposing people to asbestos, hundreds of lives were saved.
The Swiss Eternit Group did this on its own initiative many years before the Italian authorities began to enforce asbestos safety measures, which were not implemented until 1991 when regulations for handling asbestos were approved.
D. Handling of asbestos
The prosecution alleges that the environmental disaster surrounding the Eternit plants had 10 different causes.
The defense was able to demonstrate that these potential sources of asbestos contamination were considerably reduced during the “Swiss Period.”
1. Permeable asbestos bags: For decades, in Italy asbestos was packaged as a raw material in jute bags. However, during the “Swiss Period,” only hermetically sealed plastic bags were allowed for packaging asbestos.
2. Transportation of loose asbestos as a raw material and as a manufactured product: During the “Swiss Period,” following safety instructions, raw materials were to be transported and stored in the plants in closed containers.
3. Permeable ventilation systems: During the “Swiss Period” the safety of the ventilation systems was reinforced, considerably reducing exposure to asbestos dust inside and outside the plants.
4. Contaminated work clothes: For years workers had to wash and repair their own work clothes. During the “Swiss Period” the plants had to provide workers with uniforms, as well as take care of washing and repairing them.
5. Improper waste disposal: During the “Swiss Period” a special process was introduced for the proper disposal of asbestos waste.
6. Improper transportation of wastes: During the “Swiss Period,” waste was transported in closed containers.
7. Open waste disposal: Upon the insistence of Eternit itself, the municipal government of Casale Monferrato assigned a plot of land to the plant for safe waste disposal. This area was managed by a specialized company and not by Eternit.
8. Illegal dumping of waste in rivers: During the “Swiss Period,” wastewater was treated on the grounds of the plant before entering the public sewage system. Previously, unfiltered wastewater flowed directly into the sewage system.
9. Closure of plants without carrying out asbestos decontamination: After the corporation went bankrupt in 1986, the receiver (an officer appointed by the court to handle the bankruptcy case) was responsible for the decontamination of the grounds containing hazardous waste. All of the necessary resources were made available to the receiver and there is proof that all the proper processes were carried out.
10. Improper use of asbestos waste: The private use of asbestos waste was banned since the beginning the “Swiss Period.” Before that time, employees frequently used asbestos waste as construction material for private purposes.
During the “Swiss Period,” considerable efforts were made to abate the environmental impacts of asbestos waste. The situation inside and outside the old Eternit plants along with the many unfortunate victims are part of the historic legacy of the asbestos-cement industry in Italy.
During the “Swiss Period,” the company applied safety measures protecting the health of workers that were even stricter than those required by Italian law at the time; therefore, Stephen Schmidheiny cannot be held responsible for a disaster brought about by the government itself and by other companies that did not implement adequate safety measures.
a. The allegations were based on Schmidheiny being the “effective director” or the “de facto employer,” when in fact he never played an operational role at Eternit SpA (Eternit Italia).
b. Laws that were not in force when Schmidheiny was a shareholder of Eternit Italia were applied retroactively.
c. The trial covers a period (1952-2008) that exceeds, by decades, Schmidheiny’s involvement as a shareholder of Eternit Italia (1976-1986).
d. Investments made to improve safety conditions at the Eternit plants in Italy during the “Swiss Period” were not taken into consideration.
e. The defense was denied access to the medical records on which the prosecution based it allegations, neither was the defense permitted to provide studies about the “Swiss Period.”
f. Eternit was the only party convicted when, for example, six other companies used asbestos in their factories in Casale Monferrato, one of the cities where Etnernit had a plant.
g. All the environmental protection measures implemented during the “Swiss Period” were not taken into consideration.
h. The chief justice of the Court of Appeals in Turin publicly demonized Schmidheiny by comparing him to Nazism, violating his right to a fair trial.
The Defamatory Campaign
“Several actors play a key role in this reductionist operation. In the Schmidheiny case, (…) [t]he Italian media has also played an adverse role by never giving the defense the space to provide its version of the facts. On the contrary, the media demonized the defendant over the years, to the point of comparing him directly to Hitler. The head prosecutor also had a major role, seeking to appear as a national hero as he campaigned together with (…) other interest groups participating in countless demonstrations throughout Italy, and more recently, even in other countries. These actions are considered totally inappropriate in other European countries, such as the Scandinavian countries or Germany, where judges (and even prosecutors) must keep a certain critical distance and express their opinions in an impartial manner.
Martin Killias, Unidersidad de San Gallen School of Law
The above facts show that in the legal proceedings against Schmidheiny and the co-defendant, the late baron Louis de Cartier, both defendants have suffered persecution at the hands of the Italian media and the prosecutors in Turin.
In an unprecedented defamatory campaign that has gone on over the course of years, the prosecution, labor union representatives, and local media outlets have reduced the responsibility of the asbestos tragedy to the figureheads of Stephan Schmidheiny and Louis de Cartier. The two have been portrayed as guilty from the beginning, years before the trial even began, thereby exonerating other companies in the area and the very same government that took more than eight years to establish what was already the norm in the rest of Europe.
The prosecution was an active participant in this “media work,” an occurrence that, at least in Europe, is absolutely abnormal.
In different media outlets Schmidheiny was called a “murderer” and was compared to Hitler; at no time did anyone retract such statements nor was anyone sanctioned accordingly. This campaign culminated with a declaration by the chief justice of the Court of Appeals who, in his opening statement during the proceedings, compared Schmidheiny to Hitler. The judge compared a meeting of Eternit managers that was convened by Schmidheiny to implement safety measures to the Nazi conference at Wannsee linked to the plans to exterminate Jews.
To demonize a defendant in such a way constitutes a violation of the right to a fair trial, as recognized by the European Court of Human Rights and the Swiss Federal Court.
The Humanitarian Offer
Since 2001, in conjunction with his retirement from the business world, Stephan Schmidheiny hired the company Becon AG to oversee issues related to asbestos.
In 2007, Becon AG launched an initiative, motivated by humanitarian reasons, offering compensation to former Eternit SpA employees (or their respective family members) that worked at plants during the “Swiss Period,” between 1973 and 1986, and that have become ill due to exposure to asbestos.
In 2009 this initiative was broadened to include affected residents of the surrounding areas.
Since then, more than 1500 people in Italy have accepted this humanitarian offer. The amount of compensation is calculated according to the values for damages to personal integrity established by SUVA (the Swiss National Accident Insurance Fund). These values are considered to be an international reference in cases like these.
Becon also supports applied mesothelioma research, with a contribution of about 6 million Swiss francs (about 6,667,000 USD) to date.
The total amount that has been paid out to date is upwards of 50 million Swiss francs (55,650,000 USD).
An additional 22 million Swiss francs (24,485,000 USD) was offered to the city of Casale Monferrato, but in the context of the trial this offer was eventually rejected by the authorities, even though they had initially accepted it.
Becon AG’s initiatives are not an acknowledgement of civil responsibility or guilt on the part of the Swiss Eternit Group nor that of its director, with respect to illnesses caused by asbestos. The initiatives are based on a feeling of solidarity with the victims of asbestos and on the philanthropic ideals of Stephan Schmidheiny.
In the context of the trial, this gesture was not considered to be an extenuating circumstance, but rather as an aggravating factor.
Becon AG’s offer still stands.
Stephan Schmidheiny, pioneer and worldwide leader in promoting the banning of asbestos
The reality is that Stephan Schmidheiny was one of the first business leaders in the world to recognize the health risks associated with the processing of asbestos.
As early as 1976, at 29 years of age and soon after taking on the position as director of the Swiss Eternit Group, he launched a program to develop asbestos-free products.
At the time, the industry applied a safety standard for the processing of asbestos (referred to as “safe use”). In most industrialized countries, the laws at the time determined the admissible amount of asbestos in the environment (known as “maximum workplace concentration”). The concept of “safe use” also had the support of the World Health Organization (WHO), the International Labor Organization (ILO), and the European Union (EU).
In 1981, Stephan Schmidheiny publicly announced his withdrawal from the processing of asbestos, and by 1984 most of Eternit’s products where made without it.
Stephan Schmidheiny was, therefore, way ahead of his competitors and the majority of government regulations.
Despite the fact that the dangers of asbestos have been proven since then, unfortunately the processing of asbestos is still permitted in nearly two-thirds of the countries in the world.