MAC: Mines and Communities

US Appeals court revives case against Drummond

Published by MAC on 2011-02-14
Source: Courthouse News (2011-02-04)

The eight children of three trade unionists, shot dead ten years ago by paramilitaries at Drummond's Colombian coal mine, can now sue for damages in the United States.

This was the decision of an Atlanta court, taken earlier this month, and opens the way for long-standing accusations against Drummond finally to be tested in law.

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ESPAÑOL

Mining Company Faces Suit Over Union Killings

By Kevin Duvall

Courthouse News

4 February 2011

The 11th Circuit revived a case on Thursday against the Drummond Co. for allegedly paying militia members to kill three union leaders at its coal mine in Colombia.

The leaders, Calmore Locarno, Victor Orcasita and Gustavo Soler, were shot to death in 2001. Their eight children filed the lawsuit.

Members of the Adios Uribe Coalition on the Georgetown Campus in Washington
Student calls for justice in Colombia - Photo Adios Uribe

A federal judge in Northern District of Alabama dismissed the original complaint in 2007, finding that the family members lacked standing to sue under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA) of 1991.

The District Court ruled that the children could not sue for personal damages because those laws only permit recovery of damages "on behalf of" the deceased. The judge also cited the doctrine of res judicata as a reason for dismissal of five of the eight children.

The Atlanta-based federal appeals panel examined two criteria that would qualify the case for standing: constitutional standing and cause of action.

Article III of the Constitution requires the children to prove they have suffered injury-in-fact, meaning that the injury is fairly traceable to the defendants and a favorable judgment is likely to redress the injury.

The three-judge panel decided that the loss of their fathers qualified the children for injury-in-fact. The judges also found that the allegation that Drummond solicited their murders is traceable to the defendants and that the U.S. tort system is founded on the idea that monetary damages offer some compensation for a wrongful death.

The court reversed the original ruling on the cause of action under the ATS, stating that extrajudicial killing established a violation of international law, falling under the same jurisdiction as "torture, crimes against humanity and cruel, inhumane or degrading punishment."

To discern whether the children are considered proper "claimants in an action for wrongful death" under the TVPA, the court examined Colombian law and found the record did not dispute their assertion that they are wrongful death beneficiaries and the validity of their "legal expert opinion" written by Pedro R. LaFont Pianetta, a former justice on Colombia's Supreme Court.

In cases where the TVPA does not determine standing on its own, courts consult the laws of the state.

The court also reversed the res judicata judgment, finding that because the children were minors at the time of the original suit, and therefore were suing by guardian or "next friend," their appeal could represent different interests since they are now suing by themselves.

According to the Associated Press, the decision of the appeal will rest on the testimony of Rafael Garcia, who claims he witnessed the exchange of a briefcase full of cash between Drummond executive and the paramilitary.

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