Media release
May 23, 2019

Arbitrary conviction with no legal foundation
Stephan Schmidheiny made scapegoat for Italian inefficiency.

May 23, 2019 – The court of first instance in Turin today issued its decision in the Eternit trial. It convicted Dr. Stephan Schmidheiny of the negligent homicide of two individuals. This conviction lacks any legal foundation and is appalling. While the local managers in charge were acquitted before the same court for the same events, as well as in similar cases, Stephan Schmidheiny has been sentenced to 4 years in prison. In Turin, there is clearly no equality before the law. During the trial, Stephan Schmidheiny’s defence proved that he had managed the Swiss Eternit Group, SEG, responsibly in accordance with applicable law, and raised awareness among the managers responsible at the local Eternit companies in Italy with information enabling them to improve occupational health and safety. SEG facilitated 86 billion lire in investment by the Italian Eternit SpA during the 1976–1986 period that was relevant to the trial, and never took any profits from its Italian subsidiary. Stephan Schmidheiny is responsible for neither the asbestos tragedy nor the deaths of the two individuals concerned. Rather, his conscientious approach within the industry spared countless people from contracting an asbestos- related disease. The defence will appeal against this affronting verdict. It must be noted that Stephan Schmidheiny was acquitted by Italy’s Supreme Court in the first Eternit trial in 2014. The conviction pronounced today thus also disregards fundamental human rights. The restaging of a trial lost by the prosecution is a violation of the double jeopardy principle that is also enshrined in the Italian constitution. This principle guarantees that no person may be tried before the courts or punished twice in the same case. The defence will also fight this flagrant abuse of the law.

With today’s conviction, the court in Turin has upheld the absurd accusations made by the Turin Public Prosecutor’s Office. The latter has claimed since the beginning of the first Eternit trial in 2003 that Stephan Schmidheiny orchestrated a global conspiracy to conceal the dangers of asbestos to human health. He was accused of acting purely out of greed for profit and failing to institute the necessary safety measures at Eternit’s Italian factories, thereby causing the deaths of employees and local residents. These allegations are pure invention, contradicting both the facts of the case and the evidence presented in court.

Pioneer of asbestos withdrawal

Stephan Schmidheiny is regarded around the world as a pioneer in dealing with the risks of asbestos processing. He took over as head of the Swiss Eternit Group, SEG, from his father in 1976, as a 28-year-old. At the time, SEG had a broad network of minority holdings in Eternit plants in 32 countries. However, the only companies that were wholly owned by the Schmidheiny family were SEG and the Swiss Eternit AG. Other shareholders, including the Belgian Eternit and in most cases also public shareholders, were on board with all foreign Eternit companies. Under Stephan Schmidheiny’s leadership, SEG made massive investments in workplace safety and improving production facilities with a view to protecting the health and safety of its employees. These must be placed in the context of the state- regulated industry standards of the time, according to which it was possible to use asbestos safely by monitoring dust exposure.

Billions in investment

Stephan Schmidheiny never personally held any office within the Italian Eternit SpA. He never served on either the Board of Directors or in the management of the Italian holding company, neither did he ever hold any position at any Eternit SpA factory. The family-owned SEG was merely a shareholder in the listed Italian Eternit SpA between 1952 and 1986. Between 1973 and the liquidation of Eternit SpA in 1986, SEG was its principal shareholder, which is why this time was referred to in the Eternit trials as the “Swiss period”. Asbestos processing was not banned in Italy until 1992.

The fact is that, during this Swiss period (1973–1986), SEG never collected any profit from the Italian Eternit SpA. Instead, by way of capital increases and shareholder loans, SEG enabled the Italian holding company to make enormous investments totalling 86 billion lire – equivalent to some CHF 300 million today – in improving workplace safety, in particular. This dramatically reduced dust levels and the incidence of illness in the local factories belonging to the Italian Eternit SpA in Casale Monferrato, Cavagnolo, Napoli-Bagnoli, Rubiera and Syracuse.

The investments enabled the Eternit SpA plants to comply with the “safe use” safety standards. These internationally recognised standards were being encouraged at the time by the World Health Organization WHO and the International Labour Organization (ILO).

Facts about the Turin trial

The Turin trial that has now been concluded examined the asbestos-related deaths of Giulio Testore (1926–2008) and Rita Rondano (1940–2012). According to the charges, these deaths were connected to the asbestos cement factory operated by Eternit SpA in Cavagnolo. Known as SACA (Società Anonima Cemento Amianto), the plant was originally founded in 1947 as a competitor to Eternit SpA. It was acquired by Eternit SpA in 1953, and subsequently managed as an independent company within the Group. The plant in Cavagnolo was closed in 1982 as the result of financial difficulties, and the Italian Eternit SpA went into liquidation in 1986.

The evidence presented to the Court showed that, when production began in the 1950s, hardly any measures to reduce dust levels were planned. The first improvements were made in the 1960s, reducing dust exposure for the first time. From the beginning of the Swiss period (1973) onwards, enormous investments were made in increasing workplace safety. Extraction systems were installed, asbestos was transported only in sealed plastic sacks and processed only in closed systems, and the wearing of face masks was mandatory. These measures were proven to reduce dust massively, to the very lowest levels.

Giulio Testore worked at SACA in Cavagnolo between 1955 and 1981, and was listed as a victim in the very first Eternit trial. According to the medical documentation presented during the trial, he died of asbestosis in 2008, at the age of 82. This lung disease is caused by breathing in asbestos fibres, which then form deposits in the airways. The risk of contracting asbestosis rises along with an increase in dust levels and the number of years of asbestos exposure. It was proven during the trial that the dust exposure that triggered Testore’s condition was not connected with the period in which SEG held a majority shareholding in the Italian Eternit SpA.

The court nonetheless concluded that Stephan Schmidheiny was personally responsible for Giulio Testore’s death. In doing so, the same Turin court completely contradicts its verdict in an identical case: in its decision in 2015, the local managers responsible for SACA during the Swiss period were acquitted of the death of Giulio Testore. In this particular judgment, the court found that dust exposure during the Swiss period had been so low that it was irrelevant to Giulio Testore’s illness. Clearly, Turin permits different law to be applied to the same facts.

Rita Rondano died of mesothelioma in 2012, at the age of 72. Asbestos fibres are thought to trigger this rare form of cancer. In the case of mesothelioma, the latency period between the start of exposure to asbestos and tumour manifestation is an average of 30 to 45 years, with a range of variation from 15 to 70 years. According to the most recent medical research findings, it is not possible to determine the point in time of tumour initiation, i.e. the time at which cells begin to change and form tumours. Furthermore, scientists have found that continued exposure to asbestos after the tumour initiation stage is irrelevant to how the cancer develops.

Rita Rondano was not employed at Eternit. She lived from birth in areas exposed to asbestos, and worked during the 1960s as a hairdresser. At that time, hair-dryers were insulated with asbestos. During the trial, the defence proved that, when Stephan Schmidheiny took office in 1976, Rita Rondano had already been exposed to asbestos at a variety of locations for more than 20 years.

Despite this, the court concluded that Stephan Schmidheiny was responsible for Rita Rondano’s death. In the interests of a conviction, the Turin court thus constructed a causal nexus that courts in all other, comparable asbestos-related trials in recent years do not believe exists. According to the medical theory on the genesis of asbestos-related types of cancer – now recognised by the Italian courts right up to the highest court of appeal – in an environment with several sources of asbestos exposure, the particular exposure that led to the development of mesothelioma cannot be proven beyond doubt. Thus, in the case of Rita Rondano it is impossible to state whether the asbestos which caused her illness originated from the Eternit factory or from another source. The Turin court is quite evidently manipulating the facts of the case so that they fit the criteria for a criminal offence that are prescribed in law, in order to convict Stephan Schmidheiny.

Scapegoat for Italian inefficiency

Some 1,000 firms in Italy, including many state-owned operations, used asbestos in their production. Despite this, the Italian state blithely ignored the regulation of asbestos processing and use for decades. The Italian government’s failures in regulating asbestos processing are documented in detail in the judgment of the Italian Supreme Court in the first Eternit trial, issued on 19 November 2014. It states that the government only began to regulate asbestos processing long after the closure of factory in Cavagnolo in 1982, and the liquidation of Eternit SpA in 1986.

The EU issued Directive No. 83/477/EEC on the protection of workers from the risks related to exposure to asbestos at work in 1983. This Directive specifies the maximum permissible concentration of asbestos fibres at industrial plants, and was to have been adopted by the member states into their national laws by the beginning of 1987 at the latest. In its judgment of December 1990, the Court of Justice of the European Union found that Italy had not implemented this Directive and had thus failed to fulfil its obligations under the EEC Treaty. Only in 1991 did the Italian state issue a corresponding directive. In March 1992, it then declared a ban on asbestos. By following internationally recognised safety standards, SEG thus applied much stricter norms to the production processes at the Italian Eternit SpA than were required by the Italian government or used by Eternit’s competitors.

In a further judgment, the Italian Supreme Court also commented on the situation at the Eternit factories – and knowledge about the dangers of asbestos – at the time. According to the written judgment issued by this highest court of appeal in May 2018, the level of knowledge then at both government and industry levels was based on the assumption that asbestos could be used safely, which is why asbestos processing had been permitted in Italy until 1992. The court’s judgment also pointed out that government labour inspectors had always found the production processes at the Eternit factories to be prudent and compliant during the Swiss period, and had confirmed this accordingly.

Humanitarian programme for victims to be maintained

Based on his entrepreneurial and philanthropic beliefs, Stephan Schmidheiny has taken care of the victims of the asbestos catastrophe in Italy for years. Since 2008, he has been offering compensation to former employees and residents of areas surrounding Eternit factories who are affected by an asbestos-related disease. In the interests of providing simple and unbureaucratic help to those affected, the offer is available via the www.offerta-eternit.it website. Around 2,000 people have now taken advantage of this offer, and compensation of more than 50 million Swiss francs has been paid out. Stephan Schmidheiny will continue to maintain this programme for the benefit of the victims of this social tragedy.

***

Further information:
Lisa Meyerhans, Head of Communications for Dr. Stephan Schmidheiny email:
info@meyerhanspartner.ch

Prof. Astolfo Di Amato, Principal Defence Lawyer for Stephan Schmidheiny email:
astolfodiamato@diamato.eu

Media release
November 29, 2016

No second full “Eternit bis” trial
Contrary to law, cases regarding negligent homicide of two former Eternit workers permitted to proceed in Turin

29 November 2016 – The ruling in the preliminary hearing on the “Eternit bis” charges was presented today. The presiding judge has decided not to permit a second full trial against Stephan Schmidheiny. On 14 June 2017, proceedings will begin in Turin to deal with the charges of negligent homicide of two former Eternit workers. In the court’s view, the other cases are either time-barred or do not lie within the Turin court’s authority. Although the judge has thus accepted many of the defence’s arguments, the decision to allow these new proceedings against Stephan Schmidheiny is clearly contrary to the law. The defence will continue to contest this violation of the principle of double jeopardy through all the courts. Despite the fact that Italy’s Supreme Court, the Corte Suprema di Cassazione, acquitted Stephan Schmidheiny in the first Eternit case on 19 November 2014, he now faces a second trial for the same matter. The accusation that Stephan Schmidheiny caused the negligent homicide of two employees of Eternit factories is untenable. Under Stephan Schmidheiny’s leadership, the Swiss Eternit Group SEG enabled the Italian Eternit SpA to make massive investments in improving workplace safety, allowing the Italian Eternit factories to comply with internationally applicable safety standards. Stephan Schmidheiny’s conscientious approach within the industry spared many people from asbestos-related illness. By contrast, the Italian state did not regulate asbestos processing during the period in question, and only instituted the first rules to protect employees many years later, under pressure from the European Union.

In the ‘Eternit bis’ charges, the Turin Public Prosecutor’s Office accused Stephan Schmidheiny of intentionally and continually causing the deaths of 258 individuals. The preliminary hearings that began in May 2015, and that have now ended, examined the formal requirements for proceeding with a second trial. The presiding judge concluded that the Public Prosecutor’s accusation that Stephan Schmidheiny acted intentionally is manifestly without foundation. The court finds that the charge should be one of negligence and as such more than 100 of the deaths in the charges are time-barred. The judge also mostly sustained the objections raised by the defence regarding the Turin court’s lack of authority in this matter. The Public Prosecutor’s Offices in Vercelli, Reggio Emilia and Naples have competence with regard to the majority of the cases, and these cases will therefore be transferred to them.

There can be no doubt that the first trial already delivered a definitive legal ruling on the conduct Stephan Schmidheiny is now being accused of in the second main proceedings in Turin. In the first Eternit trial, the Turin Court of Appeal de facto convicted Stephan Schmidheiny of having knowingly and intentionally caused a massacre at Eternit’s factories in Italy, and that he thus bore responsibility for thousands of victims who have already died from an asbestos-related disease or will do in the future. The court likened his behaviour to the Wannsee Conference where Nazi officials decided on the final solution to the Jewish question. As the court of second instance, the Turin Court of Appeal therefore increased the sentence to 18 years imprisonment, in line with the sentence for the offence of causing a massacre (‘strage’ in Italian) pursuant to Article 422 of the Italian penal code. Italy’s penal code defines a massacre as the killing of a large number of people while at the same time endangering public safety. The offence of causing a massacre therefore includes the offence of negligent homicide.

Humanitarian programme for victims to be maintained for the time being

Based on his entrepreneurial and philanthropic beliefs, Stephan Schmidheiny has taken care of the victims of the asbestos catastrophe in Italy for years. Since 2008, he has been offering compensation to former employees and residents of areas surrounding Eternit factories who are affected by an asbestos-related disease. In the interests of providing simple and unbureaucratic help to those affected, the offer is available via the www.offerta-eternit.it website. To date, more than 1,800 individuals have accepted the offer, and over CHF 50 million has been paid in compensation. Despite the new criminal trial, Stephan Schmidheiny will for the time being maintain this programme to the benefit of the victims of this social tragedy until the proceedings commence.

***

Elisabeth Meyerhans Sarasin, Head of Communications for Stephan Schmidheiny,
email: info@meyerhanspartner.ch

Prof. Astolfo Di Amato, Principal Defence Lawyer for Stephan Schmidheiny,
email: astolfodiamato@diamato.eu

Media release
July 21, 2016

“Eternit bis”: Constitutional Court recognises defense objections
Legal principle of “ne bis in idem” applies to the majority of deaths described in charges

On 31 May 2016, Italy’s Constitutional Court, the Corte Costituzionale della Repubblica Italiana, held a public hearing on the issue of the constitutionality of the “Eternit bis” charges. The Court published its judgment today, 21 July 2016, and has ruled as relevant the questions of law concerning the interpretation of the “ne bis in idem” principle, which were submitted to it by the competent court in Turin. According to the Constitutional Court, 186 of the 258 deaths to which the charges refer had been decided upon in the first Eternit trial. Renewed prosecution for these cases would therefore violate the legal principle of “ne bis in idem”, which guarantees that no person may be tried twice for the same matter. In the first Eternit trial, the Italian Supreme Court has, of course, acquitted Stephan Schmidheiny in November 2014. With its decision, the Constitutional Court has instructed the Turin court to halt proceedings relating to the 186 deaths on which verdicts have already been passed. The charges relating to the remaining 72 deaths may still be heard in court. Stephan Schmidheiny’s defense team will again demonstrate to the Turin court that the charge that he intentionally caused the deaths in question is a travesty, and that no second trial against him should be permitted.

Preliminary proceedings were held in Turin between May and July 2015 to examine the “Eternit bis” charges. In the “Eternit bis” case, the Turin Public Prosecutor’s Office is accusing Stephan Schmidheiny of intentionally causing the deaths of 258 individuals. The charges brought by the Public Prosecutor’s Office repeat the same circumstances and the same conduct as were examined in the first Eternit trial, with the wording being verbatim in parts. Furthermore, 186 of the 258 deaths which are the subject of the new proceedings formed part of the first trial. In that first Eternit trial, Stephan Schmidheiny was, of course, acquitted by Italy’s Supreme Court in November 2014.

Stephan Schmidheiny’s defense team argued at the preliminary hearing that the “Eternit bis” charges are inadmissible. A second trial would constitute a gross violation of the “ne bis in idem” principle, also referred to as double jeopardy, which guarantees that no person may be tried or punished twice for the same matter.

In her ruling of 24 July 2015, the presiding judge in Turin decided that the question of double jeopardy raised by Stephan Schmidheiny’s defense should be submitted to the Constitutional Court. The latter therefore had to decide how the “ne bis in idem” principle is to be applied in Italy. In the defense’s view, it is not only the Italian constitution that is relevant in this regard, but also the European Convention on Human Rights and European law. Specifically, at the European level the principle of “ne bis in idem” is understood to refer to the same historical facts. In Italy, the focus is on the same judicial facts. This question of law was brought before the Constitutional Court in Rome on 31 May 2016.

In the judgment it has now published, the Constitutional Court interprets the “ne bis in idem” principle such that charges cannot be brought again in legal cases on which a court has already ruled. The residual cases may still be brought before a court. Consequently, the Turin court must now halt preliminary proceedings for those 186 deaths which formed part of the previous trial. In the case of the 72 deaths which have not yet been decided by a court, it must decide whether or not to pursue a full trial on the basis of the charges.

In the defense’s view, proceedings concerning these 72 deaths should also be prohibited under the double jeopardy principle. In the first Eternit trial, Stephan Schmidheiny was described by both the judge and the Public Prosecutor as a mass murderer, serial killer and terrorist, and the over 3,000 deaths stated in the case against him were held up as examples of such behavior. Clearly, then, the court in the first Eternit trial regarded Stephan Schmidheiny as responsible for all of the deaths connected with Eternit production in Italy, and intended to convict him on that basis. The Italian Supreme Court subsequently acquitted him of these absurd wholesale charges. It would be an abuse of the law to roll out the same case again in new proceedings. The defense thus maintains that such proceedings represent a violation of the “ne bis in idem” principle.

The defense will present substantive evidence that Stephan Schmidheiny is innocent. The Public Prosecutor’s accusation that he acted purely out of greed for profit, and knowingly and intentionally caused the death of employees and residents of areas surrounding Eternit factories, is therefore a travesty and has no basis in fact. Should a second full trial be held, the defense will demonstrate that Stephan Schmidheiny must be cleared of all guilt and punishment.

***

Elisabeth Meyerhans Sarasin, Head of Communications for Stephan Schmidheiny, email: info@meyerhanspartner.ch
Prof. Astolfo Di Amato, Principal Defense Lawyer for Stephan Schmidheiny, email: astolfodiamato@diamato.eu

Tribunal constitucional italiano examina los cargos “Eternit bis”

El equipo de defensa de Stephan Schmidheiny solicita detener el proceso judicial.  El fallo se emitirá por escrito a su debido tiempo.

El 31 de mayo de 2016, el tribunal constitucional italiano, la Corte Costituzionale della Repubblica Italiana, escuchó los alegatos de las partes en el caso “Eternit bis”, y emitirá su decisión por escrito oportunamente. El equipo defensor de Stephan Schmidheiny sostuvo en la corte que los cargos “Eternit bis” violan el principio de “ne bis in idem” consagrado en el Convenio Europeo de Derechos Humanos y en la ley europea, y que por lo tanto no son admisibles. En el primer juicio de Eternit, Stephan Schmidheiny fue, por supuesto, absuelto por el Tribunal Supremo de Italia en noviembre de 2014.

El proceso judicial preliminar se llevó a cabo en Turín entre mayo y julio de 2015 con el fin de examinar los cargos “Eternit bis”. En el caso del mismo nombre, la Fiscalía Pública de Turín acusa a Stephan Schmidheiny de causar intencionalmente la muerte de 258 personas. Los cargos presentados por la Fiscalía repiten las mismas circunstancias y la misma conducta examinadas en el primer juicio Eternit, e inclusive el escrito es, en partes, copia textual. Aún más, de las 258 fatalidades que son objeto de los cargos “Eternit bis” la mayoría fue incluida en el primer juicio.

El equipo de defensa de Stephan Schmidheiny sostiene que los cargos “Eternit bis” son inadmisibles. Tal es así que el primer juicio de Eternit terminó con su absolución. Un segundo juicio en el mismo asunto constituiría una grave violación del principio “ne bis in idem” (también conocido como double jeopardy en inglés), que garantiza que ninguna persona sea sometida a juicio o castigada dos veces por el mismo asunto. En su sentencia del 24 de julio de 2015, el juez de la audiencia preliminar en Turín decidió que la cuestión de doble enjuiciamiento planteada por la defensa de Stephan Schmidheiny debía presentarse ante el Tribunal Constitucional.

Este último tenía que dictaminar cómo el principio “ne bis in idem” debería aplicarse en Italia.  De acuerdo con la defensa, no solo la Constitución italiana es relevante en este sentido, sino también tanto el Convenio Europeo de Derechos Humanos como el derecho europeo. En forma específica, en el ámbito europeo el principio “ne bis in idem” se entiende que apunta a los mismos hechos históricos. En Italia, por el contrario, se refiere a los mismos hechos judiciales.

“Eternit bis” también contraviene la legislación europea

La defensa cree que el derecho europeo, en concreto, es pertinente al caso “Eternit bis”.  A través de la Convención que implementa el acuerdo de Schengen (CISA), por ejemplo, los Estados miembros de la Unión Europea han creado un espacio común de seguridad y justicia, que también cuenta con normas vinculantes para los sistemas judiciales.  El Artículo 54 de la CISA establece claramente medidas de seguridad para que una persona no pueda ser procesada o castigada más de una vez por la misma causa. De acuerdo con la defensa, esto significa que el artículo 50 de la Carta de los Derechos Fundamentales de la Unión Europea también es aplicable, el cual prohíbe en forma expresa los procesamientos múltiples.

La defensa espera que el Tribunal Constitucional dictamine el nuevo proceso de Stephan Schmidheiny como una violación del principio “ne bis in idem”, y que ordene al Tribunal de Turín detener los procedimientos en su contra.

Hechos sobre la empresa italiana Eternit SpA

Stephan Schmidheiny es reconocido internacionalmente como un pionero al abordar los riesgos del procesamiento de amianto.  Durante su liderazgo del Grupo Suizo Eternit (SEG), este último realizó inversiones de gran envergadura en seguridad laboral y en la mejora de las instalaciones de producción con miras a proteger la salud y la seguridad de sus empleados. Es un hecho –que no se puso en duda en el primer juicio— que durante el “período suizo” (1973-1986), SEG nunca obtuvo ningún beneficio de la compañía italiana Eternit SpA.  En cambio, a través de aumentos de capital y préstamos de accionistas, SEG dio la oportunidad a la italiana Eternit SpA para que hiciera inversiones gigantescas de 75 billones de liras, equivalentes a cerca de CHF 300 millones hoy, en mejoras a la seguridad laboral, entre otras cosas, lo cual dio como resultado una reducción drástica de la exposición al polvo y de la cantidad de casos de la enfermedad.

Estas inversiones también hicieron posible que se cumpliera con el internacionalmente reconocido estándar de uso seguro que se aplicaba en la Unión Europea en aquel tiempo y que también contaba con el apoyo de la Organización Mundial de la Salud OMS y la organización internacional del trabajo OIT. Debido a las importantes inversiones en seguridad, la firma italiana Eternit SpA quedó rezagada frente a otras empresas procesadoras de amianto (cuyos costos de producción eran más bajos gracias a la ausencia de regulación que les obligara a cumplir con dichas normas de seguridad), y por tanto entró en liquidación en 1986.

La acusación del Fiscal Público de que Stephan Schmidheiny actuó motivado puramente por la codicia de lucrar, y de que causó la muerte de empleados y residentes del entorno de las fábricas de Eternit a sabiendas y en forma intencional, es por lo tanto una burla al sentido común y no tiene ninguna base en la realidad.

***

Elisabeth Meyerhans Sarasin, Directora de comunicaciones de Stephan Schmidheiny,

email: info@meyerhanspartner.ch

Prof. Astolfo Di Amato, Abogado principal de defensa de Stephan Schmidheiny,

email: astolfodiamato@diamato.eu

The text that we share below was written by Martin Killias, permanent visiting professor of the Chair for Criminal Legislation, Criminal Process and Criminology at the University of St. Gallen Law School; he is Honorary Professor of the University of Lausanne, and Professor Emeritus of the University of Zurich. He was a Federal Supreme Court Justice of Switzerland from 1984 to 2008.

The chapter titled “The Turin Asbestos Case: How Political Pressure Leads to Unjust Verdicts” is part of the essay “International Trends and Developments: Perspectives on Wrongful Convictions from Europe“. In A.D. Redlich, J.R. Acker, R.J. Norris & C.L. Bonventre, Examining Wrongful Convictions: Stepping Back, Moving Forward, Durham N.C.: Carolina Academic Press 2014, 321-336).

READ FULL DOCUMENT HERE

“In retrospect, and taking into account our present knowledge of the many tragic victims of asbestos, I am proud of the measures taken by Group companies to protect workers against asbestos risks and glad that I remained steadfast in my decision to put an end to asbestos use, despite the uncertainty and resistance from the industry and within our own Group. As we know now, the illnesses caused by asbestos only manifest themselves many years -even decades- after exposure to the fibers. This is a profoundly deplorable situation, particularly since neither governments nor other industry members recognized the problem’s implications and for a long time failed to take the necessary protective measures.”

Stephan Schmidheiny: My Path – My Perspective. January 2006

In 1976, as a young man 29 years of age, Stephan Schmidheiny took over the direction of the Swiss Eternit Group (SEG). SEG was the family business group that had been dedicated, since the beginning of the 20th century, to producing construction materials made from asbestos cement.

It should be noted that SEG was a holding company; that is to say, it held shares in several other companies that were the ones that produced asbestos cement-based materials. In total, SEG was a minority shareholder in 19 out of the 20 companies where it was invested, each located in a different country. The only company where SEG was a majority shareholder was Eternit Italia, and only between the years of 1973 and 1986, when the company declared bankruptcy and closed.

The plants were closed down because it was impossible to implement the necessary modifications to operate free of asbestos without losing productivity. When Schmidheiny decided not to go back on his decision to replace asbestos in all the products manufactured by SEG, one of the costs was the bankruptcy of Eternit Italia. Once the company was declared insolvent, the receiver designated by the court took over the company, and SEG no longer was tied to its administration. Two of the subsidiaries under the Eternit Italia umbrella – Eternit Reggio Emilia and Eternit Sicily – were sold to competitors. The new owners continued using asbestos in their production lines, as its use was not yet prohibited in Italy. The Eternit Napoli plant in Bagnoli was decontaminated and closed down on orders from the receiver.

A few months after Stephan Schmidheiny took charge of SEG in 1976, he organized a conference in Neuss (in Germany) with the managers of all the asbestos cement-producing companies of the group.

At the conference, the managers were informed about scientific research on the risks related to the use of asbestos and corresponding preventative measures, and they were asked to put strict safety measures into practice. By then, it was speculated that asbestos could cause a number of diseases, the most severe being mesothelioma, a type of cancer that manifests itself several decades after the patient has been exposed to asbestos dust.

At the time, the predominant opinion of scientists and international entities, such as the International Labor Organization (ILO), was that the risks associated with asbestos could be reduced to acceptable levels by implementing a series of preventative measures.

In fact, seven years after Stephan Schmidheiny convened the conference, the ILO released a detailed set of safety recommendations, called “Safety in the Use of Asbestos,” approved in 1983 and published for the first time in 1984. The latest edition of this document was published in 1990.

In addition to the ILO, the World Health Organization (WHO) accepted at the time that asbestos could be used safely as long as appropriate measures were taken; even one of the well-known critics of asbestos, Prof. Irving Selikoff, supported the “safe use” of asbestos, and considered banning the substance to be unnecessary. It was not until the 1990s that it was finally understood that mesothelioma was most likely caused by exposure to asbestos fibers so infinitely small that they could not be seen with traditional microscopes; these fibers could only be detected with special electron microscopes that were not developed until the late 1980s.

This advance in science and other factors led several industrialized countries and the European Union to conclude, starting in 1992, that the risk of contracting mesothelioma could be avoided only by completely abandoning the use of asbestos in industrial production.

In this context, Stephan Schmidheiny’s initiative to create awareness among Eternit’s managers about the risks of asbestos was certainly visionary and brave in 1976. It should be recalled that neither Schmidheiny, nor SEG as a minority shareholder, had the authority to impose or order a specific course of action to those present at the meeting in Neuss.

The predominant attitude among the leaders of the asbestos industry at the time was to downplay the risks associated with the substance, or to deny them outright. Many managers present at the meeting in Neuss had worked for decades with SEG, but they had never been exposed to these messages about the risks of asbestos. This contrast with the previous position on asbestos must have impacted them.

Keeping the context in mind, it must have been hard to understand why Stephan Schmidheiny would propose that they introduce a series of costly measures designed to reduce the concentration of asbestos fibers in the workplace and to promote the health and safety of workers; even harder to understand was the fact that he was proposing to do this unilaterally, that is with no other company or competitor in the industry willing to take the same actions. By increasing production costs with the introduction of these safety measures, he was undermining the Eternit Group companies’ ability to compete. He put the health and safety of the workers ahead of profit.

At the time, Schmidheiny was convinced that these measures could reduce the health risks and bring them to acceptable levels, a position that, as we have seen, the ILO did not officially adopt until seven years later and maintained until 1990.

Thanks to scientific discoveries and advances made in the years since, we now know that the only safe option would have been to totally abandon the use of asbestos. Notwithstanding, Schmidheiny’s opinion that it was possible to avoid health risks by taking appropriate measures was shared at the time by government authorities, medical experts, the European Union, and the ILO itself, the primary organization dedicated to establishing international occupational safety guidelines.

Enormous conflicts of interests also came into play. At that time, an efficient substitute for asbestos in the production of fiber-reinforced cement did not exist. In fact, Schmidheiny was one of the pioneers in the development of alternative products that later allowed the industry to stop using asbestos.

However, up until the early 1980s, asbestos cement products were universally considered as indispensable in the construction industry. Asbestos cement was fire resistant and did not corrode; therefore, industry leaders, legislators, governments, and health authorities did not show much interest in suspending its production.

Even in the Italian city of Casale Monferrato where one of the Eternit plants was located, the mayor sent a personal letter to Schmidheiny in 1985, in the face of the impending closure of the plant, where he appeared more concerned about the effects of the plant’s close on the local labor market than about contamination and health risks.

It was not until 1999 that the production of asbestos was banned in the European Union, but the ban did not go into effect until 2004.

Schmidheiny was not only a pioneer in reinforcing safety measures to protect the health of workers, he also was able to implement an innovation program called “New Technology” to develop alternatives to asbestos. These efforts finally achieved their goal when engineers at the Ricalit plant in Costa Rica found that asbestos could be substituted with paper pulp. In 1981, Stephan Schmidheiny publicly announced his withdrawal from the processing of asbestos, and by 1984 most of Eternit’s products were made without it.

Stephan Schmidheiny was, therefore, way ahead of his competitors and the majority of government regulations.

In fact, even today, the processing of asbestos is still permitted in nearly two-thirds of the countries in the world. At an ILO Conference in 2013, an attempt to ban asbestos worldwide failed because of the opposition of several governments, among them the governments of Russia and India.

Since taking on the direction of SEG in 1976, Schmidheiny dedicated himself to improving safety measures to protect workers and promoted the development of a substitute for asbestos. Given that he did not have control over the companies where he was a minority shareholder, he devoted himself to convincing them to stop using asbestos. He was successful with some of them, but not all.

In the late 1980s, Stephan Schmidheiny sold all his shares in SEG and decided to take on the challenge of a new business path.

With his wealth considerably diminished from having invested significantly in safety measures, Schmidheiny diversified his investments in industries such as watchmaking, optical precision instruments, manufacturing of plastic pipe systems, and forestry, among others.

These new activities allowed him to rebuild his wealth and, guided by the same values and forward-thinking, innovative principles that made him a global pioneer against the use of asbestos, he also developed a successful career as a social entrepreneur and a philanthropist.

“(…) 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.

The Case

“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 Indictment

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.

The Sentence

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.

The Appeal

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.

Present Situation

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

A

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.

B

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:

• Tubigomma
• Franger Frigor
• Cerrutti
• Cementeria Marchino
• Filandia Maniseta
• Unicem

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.

In summary:

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.

• Italy’s highest court, the Corte Suprema di Cassazione in Rome, has overturned the June 2013 verdict of the Turin Court of Appeals and acquitted Stephan Schmidheiny
.
• Italy’s General Attorney denounced that the process had no legal basis.
• 
The highest court righted a wrong in a trial full of vices.

November, 2014. The decision to annul the trial against Stephan Schmidheiny by Italy’s Supreme Court rectified one of the most significant irregularities of the trial: trying him for actions that were unprosecutable in addition to the other injustices that prevented his innocence to be proven.

Italy’s General Attorney, Francesco Iacoviello, assured that the process had no legal grounding and requested the complete annulment of the trial with no possibility of reopening the cause. The defense attorneys held that the process severely violated the right to a fair and equitable trial, as demanded by article 6 of the European Convention on Human Rights (ECHR), as well as the principle of “there can be no penalty without law” as stated in article 7 of ECHR.

The annulment of the trial prevents Stephan Schmidheiny’s conviction, world pioneer in the fight against asbestos. In recognition of his key role in this task, the Organization for Economic Cooperation and Development (OECD) appointed him as Industrial Commissioner in the 1980s and the United Nations appointed him as Co-Chairman of the Earth Summit in Rio de Janeiro between 1989 and 1992.

World pioneer in the fight against asbestos

Stephan Schmidheiny is internationally recognized as a pioneer that, years before countries started regulating and banning asbestos, already promoted a higher security standard in the processing of this mineral fiber and researched and introduced safe alternative materials in his industry. These decisions and actions have saved the lives of thousands who might have otherwise become sick as a consequence of their contact with asbestos fibers.

Working against the resistance of the industry, in 1976, soon after becoming Chief Executive of the Swiss Eternit Group (SEG), at 29, Schmidheiny launched a program to develop asbestos-free materials and products. At the same time he insisted that local directors and executives, those responsible for the Eternit operations, implement ever-higher security protocols in their plants for the protection of their workers.

In 1981 Schmidheiny announced that asbestos would be banned from his operations and by 1984 most Eternit products were asbestos free. With these actions, Schmidheiny preceded most regulations and all laws against asbestos.

By Martin Killias

Understanding the Schmidheiny trial in Italy is a difficult task, indeed.  After first being sentenced to 16 years in prison in the trial court and then to 18 at the appellate level, three weeks ago, Schmidheiny unexpectedly received a judgment of acquittal “because the statute of limitations had run out on the offense”.  This is as mistaken as the widespread opinion that the Second Instance categorically confirmed the lower Instance and merely increased the penalty.  In reality, the appellate court completely altered the lower court’s judgment.  As now in Rome, this was a singularity in the Italian penal code (IPC), that is, of how to interpret aggravating circumstances. The pertinent provisions to a great degree match Title VII of the Swiss Penal Code (SPC), virtually contemporaneous.  Both codes deal with high-risk crimes, such as causing fires, subsidence of buildings or “any other” misfortune.  In most of those provisions a harsher penalty is imposed in those cases where there are personal damages, while in Switzerland a lesser penalty is contemplated if the consequences are less dire.   In the lower court, this second paragraph was not considered an aggravating circumstance, but rather a “separate offense”, with the consequence that the statute of limitations began to run as of the date of the misfortune, that is, not before the last asbestos victim had died.  Keeping in mind the lengthy latency of diseases caused by asbestos, this could occur at mid-century.  As a consequence, the lower court sentenced Schmidheiny for infringing safety requirements at workplaces (IPC Art. 437) and for causing an environmental catastrophe (IPC Art. 434).  The Court of Appeals, setting forth its reasons in exemplary fashion, dismissed those arguments, given that in the case of infringing safety requirements, the challenged paragraph constituted an aggravating circumstance and, consequently, the statute of limitations began running as of the date on which the dangerous behavior ended, that is, no later than the factory closures in 1986.

As a consequence, the statute of limitations has run out on this offense.  Surprisingly, the Appellate Court did not deduce the same consequence with respect to IPC Art. 434 (causing an environmental catastrophe), but rather considered in this case that the statute began running once the environmental catastrophe had ended.  The fifty-year or more statute of limitations is so extravagant that the second paragraph, which states the same thing in both cases, is considered an aggravating circumstance (and is therefore time-barred) for one of the provisions and, on the contrary, is a separate offense, and, consequently, not time-barred for the other (the environmental catastrophe).  While no reasoned opinion in writing has been furnished, the Rome notices reflect that the Court of Cassation has reversed the Court of Appeal’s judgment for precisely that contradiction.

With this motivation, the Supreme Court has managed to avoid having to analyze other numerous errors committed in the appealed judgment.  For example, it should be noted that Schmidheiny was accused of everything that has taken place since 1952, on which date he was five years old; that the indictment was repeatedly amended, even with the active involvement of the court, something which is absolutely inadmissible in a state of law; or that the defense had no access to the files regarding cases if illness and death.  The Court of Cassation has likewise not had to speak to the extravagant assertion that Schmidheiny, through a media campaign to minimize the risks, led Italy to be one of the last countries in Europe to prohibit the processing of asbestos.  Nor has it had to examine the unfettered extension of liabilities of a company to a single shareholder, much less busy itself with the disconcerting comparisons of the chief judge of the Court of Appeals, who compared the accused to Hitler.  With its decision, the Court of Cassation has released Italy from a presumable and disparaging defeat in Strasbourg.

The fact that the attorney general and the Court of Cassation in Rome thus disapproved of both Instances supposes a stunning setback for Turin.  Instead of rectifying, attempts are being made in Turin to accuse Schmidheiny of voluntary manslaughter, by deeming that he has deliberately and intentionally killed hundreds of people.  As a result, Schmidheiny’s alleged improper conduct is once again being accused, that is, that the asbestos processing did not cease immediately, from the moment he assumed his position at the age of 28.  To restart a trial that was lost goes against human rights, even though this does not appear to be of concern to anybody.  Prime Minister Renzi, who intensely participates in the hate and smear campaigns against the accused, now even wants the State, that is to say the Government, to participate in the new prosecution as a victim and, therefore, as a civil party.  The very same State, let us take note,  that never concerned itself with the hazards of asbestos.  How far can the rights of the victims in a criminal trial be perverted!  The Government, as a party to a criminal trial, would also suppose the end of judicial independence.  Nor is it questioned in Italy that the justice system, which takes years to conclude urgent prosecutions such as those relating to child custody, and that in public surveys obtains the worst scores in all of Europe, does not skimp on gigantic resources to tackle a trial that will be of no help to anyone, much less to the victims of asbestos.  It has been the Schmidheiny indemnity fund that has thus far granted concrete aid to 1,500 victims.  Many have turned down his offer because they wanted “Giustizia” (Justice) and, if things do not change, they run the risk of coming up empty-handed.

Martin Killias is a permanent guest professor at the University of St. Gallen.  He participated as an advisor to the Stefan Schmidheiny defense team.  In this commentary he is speaking on his own behalf.

12 December 2014

Media Release – MAY 12 2015

Absurd new accusations against Stephan Schmidheiny

Today, Tuesday, 12 May 2015, sees the start of the preliminary hearing in Turin into the “Eternit bis” process. Despite the fact that Italy’s Supreme Court, the Corte Suprema di Cassazione, acquitted Stephan Schmidheiny in the Eternit case on 19 November 2014, the Turin Public Prosecutor’s Office is now accusing him of the intentional murder of 258 people. This accusation is absurd, given that the Swiss Eternit Group in fact enabled the Italian Eternit SpA to make enormous investments in improving workplace safety, and therefore never collected any profit from its shareholding during the period in question. Furthermore, the restaging of a trial following an acquittal is a violation of human rights: the “ne bis in idem” principle enshrined in the European Convention on Human Rights guarantees that no person may be tried or punished twice for the same matter. The defence hopes that the judge responsible will rule the charges to be inadmissible at the preliminary hearing now being launched, and that he will dismiss the case. In the defence’s view, the new charges show that Stephan Schmidheiny is the subject of a witch hunt in Piedmont and demonstrates a desire for politically motivated show trials. Despite the new charges, Stephan Schmidheiny will continue to maintain the humanitarian programme set up in 2008 for the victims of the asbestos catastrophe.

According to the new charges, Stephan Schmidheiny, as the “person actually responsible” for the Italian Eternit SpA between 1976 and 1986, knowingly and intentionally caused the deaths of 68 former employees of the Italian Eternit SpA and 190 former residents of areas surrounding Eternit factories. In the Public Prosecutor’s view, Stephan Schmidheiny was fully aware of the dangers of asbestos processing. Nevertheless, driven purely by greed for profit, he continued to operate the factories, did not prevent the private reuse of asbestos cement waste, and did not take any effective action to improve the situation.

Stephan Schmidheiny’s defence team has already proven the accusations of the Public Prosecutor’s Office to be unfounded at the first trial. Stephan Schmidheiny is not a murderer. Instead, with his conscientiousness within the industry, he was a pioneer in ending the processing of asbestos, and thus saved thousands of people from contracting an asbestos-related disease. It is a fact – and this was not disputed in the first trial – that during the “Swiss period” (1973-1986), the Swiss Eternit Group SEG never collected any profit from the Italian Eternit SpA. Instead, substantial investments were made. By way of capital increases and loans, SEG enabled the Italian Eternit SpA to make enormous investments of 75 billion lire – equivalent to some US $325 million today – to improve workplace safety, among other things. This also allowed for compliance with internationally recognised safety standards, far in excess of the requirements stipulated by law. This resulted in a dramatic reduction in dust exposure and in the number of cases of disease. However, owing to the significant investments in safety, the Italian Eternit SpA fell behind other asbestos processors that did not comply with these safety standards and were able to produce more cheaply, and it was forced into liquidation in 1986. The accusation that Stephan Schmidheiny acted purely out of greed for profit, and knowingly and intentionally caused the deaths of employees and residents, is therefore absurd.

Stephan Schmidheiny is regarded around the world as a pioneer in dealing with the risks of asbestos processing. As far back as 1976 – shortly after he took over as head of the Swiss Eternit Group SEG at the age of 28 – he launched a programme to develop asbestos-free products, doing so in the face of opposition from the industry. At the same time, he urged the managers in charge locally of the Eternit factories to implement measures to protect the health and safety of employees. Stephan Schmidheiny announced the phasing out of asbestos processing in 1981, and from as early as 1984 a majority of Eternit products were produced without asbestos. Stephan Schmidheiny was thus far ahead of the competition and most government regulations. To date, asbestos processing has been banned in only one third of all countries worldwide. According to the World Health Organization WHO, some 125 million people around the world are still exposed to asbestos at their workplace. Asbestos is a social problem, for which industry, the international community and society have a shared responsibility.

It is a fact that the processing of asbestos was permitted in Italy in the period in question, and the Italian government did not concern itself with regulating the industry. The Italian authorities had not issued any regulations on dealing with asbestos at that time, and the government did not ban the processing of asbestos until 1992.

With “Eternit bis”, the Turin Public Prosecutor’s Office has ridden roughshod over the principle of double jeopardy (“ne bis in idem”) not once, but twice. Firstly, its accusations against Stephan Schmidheiny centre on the same conduct of which he was accused in the first Eternit trial. Secondly, around 70% of the deaths listed were also covered by the first Eternit trial. Italy is the only country that is seeking to tackle the asbestos catastrophe by conconducting criminal proceedings against individuals. In most other industrialised countries where an asbestos ban is in effect, government and industry have found common solutions to mitigate the social tragedy.

Based on his entrepreneurial and philanthropic beliefs, Stephan Schmidheiny has taken care of the actual victims of the asbestos catastrophe in Italy for years. Since 2008, he has been offering compensation to people affected by an asbestos-related disease. In the interests of providing simple and unbureaucratic help to those affected, the offer is available via the www.offerta-eternit.it website. Todate, more than 1,700 individuals have accepted the offer, and over US $55 million has been paid in compensation. Stephan Schmidheiny will maintain this programme to the benefit of the victims of this social tragedy until further notice.

***

Elisabeth Meyerhans Sarasin, Head of Communications for Stephan Schmidheiny, e-mail: info@meyerhanspartner.ch

Prof. Astolfo Di Amato, Principal Defence Lawyer for Stephan Schmidheiny, e-mail: astolfodiamato@diamato.eu