Análisis Externo

The Newmont Minahasa Case is an example of prosecutors trying to prosecute corporations. Although the defenders were acquitted, it is important to discuss this case since it is an early example of prosecutors trying to prosecute corporations. In 2005, Newmont Minahasa Company, the U.S.-based mining company operating in Minahasa North Sulawesi was brought before the court for polluting the Buyat Bay in the North Sulawesi with toxic tailing waste from mining activities.331 The charges were based on the investigation that concluded that the company, without any legal permit, dumped potentially harmful amounts of mercury and arsenic into Buyat Bay, near its mining site in the Minahasa regency. Then, this action led to health problems for many local villagers, such as skin diseases and neurological

328 _{Harkristuti Harkrisnowo and David K. Linnan, Op.Cit., p. 4}

329 _{In 2010 the prosecutor office succeed prosecuting corporation in Dongwoo case which will be discussed later.}

After that several corporations have been brought before the criminal court for various crimes.

330 _{See the Indonesian Prosecutor Office annual report (2014, 2015, 2016) on}

https://www.kejaksaan.go.id/home_kinerja.php

331 _{Indonesian Court Acquits Newmont Mining, See the New York Time, April 25, 2007, available at}

disorders. In that case, the prosecutor used one bill of indictment to prosecute both the corporation and the natural person. The first defendant was Newmont Minahasa Company, represented by Richard Ness as the director of the corporation. Then, Richard Ness was prosecuted as the second defendant for the violation of the Article 41 or Article 42 of the Environmental Management Law Number 23 Year 1997 (hereinafter referred to as Environmental Law).332 Under Article 41 of the Environmental Law, anyone who intentionally pollutes the environment could face up to 10 years of imprisonment and could be fined up to 500 million Rupiah (equal to 31.250 Euro)333_{. Under Article 42 of the Environmental Law,}

anyone who negligently pollutes the environment could face up to three years of imprisonment and could be fined up to 100 million Rupiah (equal to 6.250 Euro).

The defendants consistently denied any wrongdoing, saying the waste was treated in accordance with Indonesian government regulations and suggested the Buyat villagers could have fallen ill due to malnutrition and poor sanitation. The defendants also said that the operations of thousands of illegal miners, who used mercury, could be to blame for any mercury-related illnesses. The evidence brought to the court by the defendants based on the research of Japan's Minamata Institute, the Australian Commonwealth Scientific and Industrial Research Organization, which concluded that Newmont did not pollute the bay. Meanwhile, the prosecutor had proof from the police investigation that found significant levels of mercury. Subsequent joint investigation by Indonesian government officials, university professors, activists and the police also concluded that the bay was polluted with excessive levels of arsenic and mercury.

The case ended with the acquittal of both defendants because the prosecutor failed to prove that Newmont’s system of depositing mine waste at the bottom of the bay via a half-mile-long pipe had polluted the environment or caused health problems for local villagers.334 The court was in favour with the evidence given by the defendants because the defendants used internationally accredited organizations to gather evidence. The prosecutor then filed cassation at the Indonesian Supreme Court, which was later also denied and declared the acquittal for the defendants.

332 _{The Law Number 23 Year 1997 on Environmental Management Law had recognized the corporation as the}

subject of the criminal punishment, at this time that Law has been replaced by the Law Number 32 Year 2009 on Environmental Protection and Management.

333 _{1 Euro = 16.000 Rupiah.}

Even though the prosecution did not succeed in getting a conviction, the way the prosecutor brought the corporation as the first defendant and the director as the second defendant in one indictment was as a positive start of prosecuting corporations. Unfortunately, the court did not successfully established the criminal liability of the corporation in that case. This is because before the court examined the corporation’s conduct, the court found that the pollution, as the most crucial element of the case, did not happen.

However, from the formulation of the indictment and expert testimony in the case, several remarks can be shown. Firstly, in the indictment, the corporation was the first accused. This means that the prosecutor was confident enough when deciding that the corporation was the main actor of the misconduct. In the indictment, the prosecutor based their accusation on the fact that the misconduct was committed within the sphere of the corporation since the decision to dispose of the waste was made by the corporation.

Secondly, the president director was the second accused because they did not take any action to prevent the increased parameter of the pollution and did not ensure that the corporation possessed a permit to dispose of its waste. The second accused knew that the corporation had not obtained a permit to dispose tailing into the sea and had not been allowed or had not given any instruction to stop the disposal. In the prosecutor’s opinion, Richard Ness as the president director, had the duty and bared the responsibility for supervising, controlling and instructing his subordinates within the corporation.