Business and Human Rights: FIDH and HRIC submit amicus brief in European Court of Human Rights’ ‘ThyssenKrupp case’

04/03/2021
Press release
Gianfranco Goria

The International Federation for Human Rights (FIDH) and Human Rights International Corner (HRIC) submitted a written intervention today as a third party in a case before the European Court of Human Rights concerning irresponsible corporate behaviour and the right to life. In the brief, FIDH and HRIC share their expert analysis with the Court, encouraging it to clarify the need for prompt and effective redress for human rights violations committed by corporations and for perpetrators to be held to account, and to develop harmonised standards and a more coherent system of access to remedies throughout European states.

The case, Alosa and Others v. Italy and Germany – also known as the ‘ThyssenKrupp case’ – introduced in April 2018, concerns Germany’s refusal to hand over to Italy two managers of a ThyssenKrupp steel plant in Turin, despite their being convicted of involuntary arson, involuntary manslaughter and other charges following a deadly industrial accident in 2007, which claimed seven workers’ lives and injured one other.

To this day, the sanctions imposed on the two managers have not been fully enforced, and they continue to work for the multinational company, at its headquarters in Essen. Relying on Article 2 (right to life) of the European Convention on Human Rights (ECHR), several relatives of the deceased and the only direct victim to have survived injuries suffered in the accident, filed a case before the European Court of Human Rights (ECtHR) for omissions and delays on the part of the Italian and German authorities in executing the judgment convicting the two managers. Relying on Article 13 of the Convention, the applicants also complain of a lack of an accessible and effective remedy which would enable them to challenge the alleged delays and omissions.

An opportunity for the Court to further protect victims of corporate human rights abuses

The amicus curiae brief, drawing on the authors’ expertise on business and human rights, analyses the international human rights legal framework applicable to corporate actors as well as the State’s duty to protect human rights from corporate violations, especially the State’s obligation to ensure access to remedy for victims.

The authors argue that the case – in which human rights violations stem from private sector business activities, a rare configuration for a case before the ECtHR – raises important issues from the perspective of the protection of the right to life (Article 2 ECHR), taken alone and in conjunction with other provisions of the Convention (Article 6§1 ECHR and Article 13 ECHR). FIDH and HRIC contend that this case presents an opportunity for the Court to underscore the need for human rights violations committed by corporations to be promptly and effectively redressed and for perpetrators be held to account.

In the same vein, the brief highlights that developing a coherent and effective system of access to remedies based on a common set of legally binding standards applicable across Council of Europe member states is instrumental to provide a solid protection framework for victims and address gaps that foster impunity for perpetrators of irresponsible corporate behaviour. It also provides observations on the effectiveness criterion of the right to access to remedy in the criminal law realm, including in the context of intra-European judicial cooperation.

The facts: State-sponsored impunity?

In 2007, the steel plant of German multinational Thyssenkrupp in Turin, Italy was the site of a deadly industrial accident that shook Italy. In the early morning of 6 December, a small fire broke out in a section of the plant. As the eight workers on duty fought it with fire extinguishers and a fire hydrant, violent jet fire suddenly erupted and hit the workers, due to the rupture of a hydraulic circuit. One of them was instantly killed, while six others died the following month. Just one of the workers, who was partly shielded by an operating machine, suffered only minor injuries and survived.

The public prosecutor’s office in Turin brought proceedings against six managers of ThyssenKrupp, including two German nationals: Harald Espenhahn, the managing director of the company that owned the plant, and Gerald Priegnitz, its managing advisor. After six years of proceedings and appeals, all six directors were found guilty of arson and convicted of wilful failure to take precautionary measures to ensure safety in the workplace; Priegnitz was convicted, along with four other Italian managers, of involuntary manslaughter and involuntary arson, while Espenhahn was convicted of involuntary manslaughter, involuntary arson, and voluntary omission to take precautionary measures to prevent occupational accidents. In both decisions, the foreseeability of the accident was considered to be an aggravating circumstance. The Prosecutor also brought charges against the company itself on the basis of Italian legislative decree 231/01 which introduced corporate administrative liability in the Italian legal system.

The Turin Assize Court of Appeal established that Espenhahn, who, as managing director, was responsible for drawing up the document assessing the risks presented in the factory, had knowingly and voluntarily concealed the specific elements of risk connected with production in the area of the factory where the accident occurred. The court noted that he had declared that the risk of fire was nil or of a lower level than it truly was, in order to evade the obligations to adopt precautionary measures. It also established that Priegnitz was jointly responsible for the concealment manoeuvre. Espenhahn and Priegnitz were sentenced respectively to nine years and eight months and six years and 10 months imprisonment. The Italian Court of Cassation upheld the decision in 2016, and stated that the leaders had committed an "impressive series of violations of specific standards of precaution."

While the sentence against the four Italian managers was executed immediately upon the Italian Court of Cassation’s decision, on 16 May 2016, the public prosecutor’s office of the Turin Assize Court of Appeal issued a European Arrest Warrant against the two German managers, who at the time were in Germany. Yet, the German authorities initially refused to hand over the managers to their Italian counterparts or to execute the sentence issued by the court in Italy.

Given the failure of German or Italian authorities to execute the sentence and hold the perpetrators to account, the victims and their families turned, in 2018, to the European Court of Human Rights, alleging that both States had violated their rights under the Convention. The 26 applicants relied on both the German and the Italian authorities’ omissions and delays in executing the sentence and asked the Strasbourg Court to look into the two governments’ responsibilities for this lack of justice. Germany eventually agreed, following a decision by the Essen District Court in February 2020, to execute the sentence in Germany rather than extradite the two convicts – and thus apply the highest sanction provided for under German law for the crimes they committed, i.e. five years in prison, rather than the more severe one imposed by the Italian courts. Nevertheless, the two offenders enjoy relative impunity to this day; Espenhahn remains at large, while Priegnitz is permitted to serve his five-year prison term under a day-release scheme, working during the day for ThyssenKrupp in Essen.

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