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The Democracy Center’s Reply to ENEL-EMGESA

Following the publication of our article ‘Damming Dissent‘ on the Open Democracy website on 23rd January 2017, representatives of Italian multinational, ENEL and its Colombian subsidiary, EMGESA replied to us via the Business and Human Rights Resource Centre platform.

The central issue that we focused on in our article was the role of ENEL-EMGESA in the criminalisation of legitimate peaceful protest in relation to the communities resisting the Quimbo mega-dam project in Huila, Colombia.

In its reply, ENEL-EMGESA refers to many other important issues relating to the dam project and its social and environmental impacts. These issues are many and complex. They include the legitimate concerns of communities for their social and environmental futures. In the same way as ENEL-EMGESA is the key protagonist in the criminalisation of peaceful protest, the corporation is also the key protagonist in determining how the futures of the people of this region are being shaped.

For now we will focus on the issue of the criminalisation of protest because of the urgency of the issue and the grave consequences for the community leaders being persecuted.

While ENEL-EMGESA, for obvious reasons of public relations, asserts that it has no responsibility for the legal cases against the two activists, the facts of Colombian law are crystal clear: Prosecutors only began legal proceedings in direct response to complaints from the powerful corporation.

While ENEL-EMGESA says that these charges are in the hands of Colombia’s legal institutions and they downplay any role they have had, the evidence shows clearly that the corporation is the driving force behind both cases. Evidence from Colombian lawyers, the Colombian Public Prosecutor and the Colombian Inspector General’s Office makes clear that neither of the legal proceedings against Miller Dussan or Elsa Ardila would exist without ENEL-EMGESA’s protagonism.

It’s not surprising that ENEL-EMGESA would attempt to distance themselves from these charges given the potentially lethal consequences – outlined in our original article – for those affected.

There are concrete ways that ENEL-EMGESA could now take action to bring both sets of legal proceedings to an end. They have clearly played an active role in bringing about these proceedings, we invite them to take an equally active role now to desist from the criminalisation of protest.

ENEL-EMGESA’s Role – The Words of Colombian Lawyer German Romero.

While ENEL-EMGESA downplays its role in the legal cases faced by Miller Dussan and Elsa Ardila, in actual fact the corporation set in train both sets of legal proceedings.

German Romero, Colombian lawyer for Miller Dussan and Elsa Ardila states the following:

“ENEL says that the public prosecutor initiated the two charges. That’s a lie. In both cases, it was EMGESA that initiated the [legal] processes because they are processes that require a criminal complaint (querella) on the part of the allegedly injured party and in this case it was EMGESA that pressured to set in motion the justice apparatus. Even though the Public Prosecutor takes over the proceedings from there…this doesn’t mean that EMGESA distances itself completely from the proceedings. I reiterate that it is due to a request by EMGESA that Miller and Elsa are facing criminal charges in both cases[1].”

Specifically in relation to the first case – that of Obstructing Public Roads and Affecting Public Order – the only evidence that exists in the proceeding are the complaints, witness statements and assessments made by EMGESA.

German Romero, lawyer for Miller Dussan and Elsa Ardila, continues:

“EMGESA’s role has been absolutely decisive in instituting the criminal proceedings, and in the criminalisation of the peaceful protests carried out by Miller, Elsa and ASOQUIMBO in general. EMGESA filed the complaints with the Public Prosecutor– the only evidence they had to move the case forward were EMGESA’s complaints, the testimonies of EMGESA’s representatives and lawyers, and the assessments made by EMGESA – which all clearly show that EMGESA is the one deciding the course of these proceedings[2].”

ENEL-EMGESA’s Role – The Words of the Public Prosecutor.

In relation to the first case – that of Obstructing Public Roads and Affecting Public Order – ENEL-EMGESA’s role is made clear in the direct words of the Colombian Prosecutor.

Public Prosecutor Carlos Francisco Tovar Giménez speaking at the Hearing for the Filing of Charges on 10th August 2016: “The Public Prosecutor must now give an account of the incidents in relation to the ‘report of the crime’ that was filed by a representative of EMGESA. I must make it known that according to the criminal complaint filed on the 7th February 2012 by the lawyer Bernardo Gomez Vazquez in his capacity of legal representative of EMGESA SA against Miller Dussán Calderon y Elsa Ardila Muñoz for the crime of obstructing public roads and affecting public order…[3].”

The Public Prosecutor continues:

“Your Honour, Messrs Dussan Calderon and Elsa Ardila, the facts that the prosecutor has just recounted in relation to the case before us and the reason for this Hearing for the Filing of Charges, were taken solely and exclusively from the text of the complaint made by the lawyer [representing EMGESA] Bernardo Gomez Vazquez…”

ENEL-EMGESA’s Role: The words of their own lawyer.

With regard to the second case – Instigating the Occupation Of Land – in Bogotá on the 8th February 2016, EMGESA’s own lawyer offered to withdraw the charges against Miller Dussan if he paid them almost a million dollars in compensation. Once again, in the words of German Romero, lawyer for Miller Dussan and Elsa Ardila:

“This is a crime that requires a complaint by an alleged victim; the EMGESA company with its legal representative in a Conciliation Hearing in which Miller and I participated stated that they would withdraw the criminal complaint if they were compensated to the tune of 2,500 million pesos (approximately US$856,000). It was a Conciliation Hearing as part of the proceedings taking place here in Bogotá on the 8th February 2016. The person that made the intervention in the name of the company was John Jairo Huertas Amador – their legal representative[4].”

 The fact that Dussan would need several lifetimes working as a Colombian university professor to even come close to earning that amount of money might be lost on high paid corporative executives at ENEL-EMGESA. However, what this request by their lawyer makes crystal clear, is that corporation was well aware of its role in, and influence over, the legal proceedings.

ENEL-EMGESA’s Role: The Words Of The Inspector General Of Colombia.

Also with regard to the second case – Instigating the Occupation of Land – in a written reply to professor Dussan in relation to his Right to Inquire, from December 16th 2015, the Office of the Inspector General of Colombia (Procuraduría) states that the proceedings in Bogota for land occupation was instituted because of EMGESA’s criminal complaint and pressure.

From the Office of the Inspector General of Colombia’s letter:

“By means of the current letter, we advise you that we have received your correspondence dated 18thNovember 2015, sent to the Inspectorate General by email on the same date and received by this office on the 7th December 2015, in which a complaint is made regarding an alleged case of judicial harassment by the Public Prosecutor with whom you collaborated by providing information against those responsible for crimes related to environmental damage caused by the El Quimbo hydroelectric Project, but which resulted in an investigation being initiated against you based on a request by EMGESA, but without any written notification, which you were made aware of by a public investigator from the Technical Investigation Team[5].”

The letter continues:

“We have confirmed that there is in effect an investigation underway against you, which is currently in the inquiry phase, for the crime of Occupation of Lands or Buildings, under article 263 of the Penal Code, Law 599 of 2000. “

 “This inquiry was lodged with the reference code stated at the head of this letter and was opened as a result of the criminal complaint filed by JAIRO ERNESTO ARIAS ORJUELA, legal representative of EMGESA S.A. E.S.P., on the 2nd July 2013 against you personally and in your role as ASOQUIMBO’s legal representative, where the Public Prosecutor is advised, that ASOQUIMBO – civil society organization represented by you – has repeatedly instigated the occupation of lands known as “El Palacio” and “Santiago” in the locality of the town of Garzón, Huila, land that was acquired by EMGESA S.A., in the development of “EL QUIMBO” hydroelectric project.”

ENEL-EMGESA’s role: End The Criminalisation Of Peaceful Protest!

ENEL-EMGESA is not just responsible for the accusations that initiated the charges, the multinational also has it within its power to put an end to the proceedings against Dussan and Ardila:

  1. Don’t challenge the Judge’s decision on February 22nd. In the first case of Obstructing Public Roads and Affecting Public Order, there are two things EMGESA can do. Lawyer Carlos Romero, revealed: “EMGESA could file a statement with the Office of the Prosecutor General and the Judges stating that they respect the right to association, to freedom of speech, to peaceful protest and demonstration by the social movements and unions of Huila that are critical of or are affected by the Quimbo megaproject. Such a statement would automatically pull the rug from underneath the case.[6]

Given that on February 6th the Public Prosecutor recommended that these charges of Obstructing Public Roads be dropped and will give his final verdict on this case on the 22nd February, all ENEL-EMGESA has to do now is not to appeal the judge’s upcoming decision.

  1. Withdraw the Criminal Complaint. In the second case of Instigating Land Occupation, ENEL-EMGESA could request that the charges be dropped. As Miller Dussan’s lawyer explains, “In the Bogota case – Instigating Land Occupation – EMGESA could lodge a request to withdraw the criminal complaint, which would immediately result in the Prosecution closing the file on the case and a suspension of any further evaluation or gathering of evidence.”

We demand that the Corporation, ENEL-EMGESA:

  • Use the power at its disposal to immediately desist from the judicial persecution of leaders of ASOQUIMBO.
  • Withdraw its plans for building of any further socially and environmentally destructive megadams in Latin America.

ENEL-EMGESA’s misleading statements in its communication to the Business and Human Rights Resource Centre constitute either a deliberate effort to misrepresent the facts, or else they reveal that ENEL’s corporate leaders in Rome have no idea how their counterparts in Colombia are actively seeking to criminalise responsible dissent in the face of the corporation’s environmental destruction.


[1] Interview with the Democracy Center 3rd February 2017

[2] Interview with the Democracy Center 3rd February 2017

[3] Our translation into English of the audio recording of Hearing for the Filing of Charges on 10th August 2016.

[4] Interview with the Democracy Center 3rd February 2017

[5] Letter from Office of the Inspector General of Colombia to Miller Dussan dated December 16th 2015

[6] Interview with the Democracy Center 3rd February 2017