Mercedes Benz Argentina

In the years 1976/ 77 in the factory of Mercedes-Benz Argentina 14 workers "disappeared". Since the publication of my first investigation in August 1999, in German radio WDR, several courts were asked to investigate the crimes committed and to render justice.
The district court of La Plata, the so-called "truth tribunal”, tries to investigate the fate of the missing MBA-workers during the military dictatorship, including the fate of Esteban Reimer, who was a member of the internal commission in the MBA-factory. The court has heard numerous witnesses, however, the “truth tribunal” is not allowed to file criminal charges.

On behalf of the German Republican Lawyers' Association the legal representative Mr. Wolfgang Kaleck made a penal denunciation against the MBA production chief, Mr. Juan Ronaldo Tasselkraut, for being an accomplice in the assassination of the missing MBA-workers.
After several years, the Nuremberg Prosecutor's Office closed the investigation. In their opinion it was not demonstrated that the missing MBA-workers are really dead and that they can not return some day.

And finally, the District Court of Karlsruhe decided that the civil lawsuit, filed in the US, can not be served to the DaimlerChrysler AG in Stuttgart, because the civil case is a danger for the national security of Germany.

After I had explained the accusations in the shareholders' meetings, the Daimler-Benz AG hired Professor Christian Tomuschat. He published his report in December 2003. Amnesty International condemned the incomplete and prejudiced report, the press spoke of a "courtesy opinion". I would like to make this report available on this homepage, but the Daimler AG, which holds the rights, prohibited the publication.

In Argentina, during several years there was impunity for these crimes. It was under President Néstor Kirchner that the amnesty laws were removed. But the criminal proceedings against Daimler did not advance. In 2002, the families initiated a criminal charge against the Argentinean military, the managers of Mercedes-Benz Argentina, the head of the trade union SMATA José Rodriguez and Minister of Labor (until 1976), Carlos Ruckauf. President Néstor Kirchner received in May 2005 the families and promised investigation and justice.

In 2004, the families and the survivors filed a lawsuit in San Francisco against the DaimlerChrysler AG. This company had merged in 1998 and maintained two headquarters, one in Auburn Hills, Michigan, and one located in Stuttgart. It was a "marriage made in heaven", and Dieter Zetsche was declared CEO of Mercedes-Benz USA.

According to my inside sources, German Chancellor Angela Merkel personally protested against the opening of the case in the White House. I had contacted both the office's of the Presidency and the Foreign Ministry as to any objections from their offices about this case. The Foreign Ministry was clear, saying that they have "no objections against the legal procedure in the US". download The Presidency responded by saying that they didn't have "any document" about the subject, without answering to the direct question as to any objections about the case. Download Answering a parliamentary request for information, Ms. Merkel’s office wrote: „During her visit in the U.S. in November 2009, Chancellor Merkel has not mentioned that civil case". Download dokumentSure, not during her visit in November, but the question referred to her visit BEFORE the verdict.

On August 28, 2009, the District Court in San Francisco issued a negative finding about the geographical scope of the case, arguing that there might be an "alternative forum" (Argentina or/and Germany) and because “Mercedes-Benz USA was not DaimlerChrysler’s agent for the purpose of conferring general jurisdiction“. Download dokument.

Circuit Judge Reinhardt, one of the three judges, dissented. The German DaimlerChrysler AG, he wrote, „has earned 45 % of its annual revenue from its sales in the US, 2,4 % of its total sales in 2004 were in California. (...) Daimler has chosen to place itself at risk of litigation by engaging in extensive business in the US through the operations of its agent. We do not violate Germanys sovereignty by exercising jurisdiction to hear this suit.“

In May 2010, the same court decided to vacate the case and in November 2011, the 9th Circuit of the Court of Appeals in San Francisco rejected to rehear Daimler AG ("en banc"). The Daimler AG tried to avoid this process by any means and went to the Supreme Court of the US. They started an „amicus battle“. An amicus curiae brief consists of a statement from someone who is not a party to a case but who offers an opinion. Daimler has a lot of Amici: the Automobile Manufacturers, Inc., the Association of Global Automakers, the Atlantic Legal Foundation, the New England Legal Foundation, Associated Industries of Massachusetts (firms that defend free enterprise in the Commonwealth), the U.S. Chamber of Commerce, the National Foreign Trade Council, the Organization for International Investment, the European Banking Federation, the Federal Association of German Industry, the German Industry and Commerce, the Bundesverband German banks, the Swiss Bankers Association, the ICC Switzerland (Swiss Chamber of Commerce) and the Economiesuisse (Federation of Swiss industry that represents two million Swiss jobs, say, bank account holder.), among others.

These Amici put forward only few merely legal arguments. For example: “The events happened over 30 years ago, on the other end of the world, in Argentina, and have nothing to do with California or the United States. (Among the plaintiffs) are no U.S. citizens and the U.S. have no connection with these events” (Global Automakers). The amendment of Due Process is violated when judges take the right to hear a case without competence. And Mercedes-Benz USA has a “separate legal identity” and only few connections with the German parent company. The U.S. Department of Commerce warned that the legal costs in the U.S., twice as high as in Japan or Germany, will be negative for investors, making the U.S. market less competitive. If the decision of the District Court of San Francisco was to be affirmed, there will be an “explosion of worldwide forum shopping”. Not only German firms would run the risk of confronting U.S. courts. Also, U.S. companies would suffer similar consequences elsewhere, for example General Motors or Ford. Mining companies and oil firms are not named, hence could be banned from entering new markets.

The Amici openly threaten with economic warfare. These consequences would inflict significant harm upon the U.S. economy. They would decrease foreign direct investment, which contributes significantly to (the U.S.) economy. In 2009, foreign-controlled domestic corporations accounted for nearly 14% of total corporate income tax collected.” If the US Court decision is confirmed, your tax revenue will fall by 14 percent. 5.6 million U.S. jobs are located in the factories of foreign companies. On average, workers there earn a $ 77,409, i.e. 36 percent more than in the rest of the economy. Foreign companies invest 149 billion each year. The verdict „threatens to bring about a damning effect on foreign investment in the US with consequent deleterious effects upon the American economy”.

Unfortunately, the U.S. government has changes his mind in this matter. In the human rights case Kiobel (involvement of the Shell Company in death squads in Nigeria); the Obama administration had called for the opening of the trial in an U.S. court. The case had been decided adversely in April 2013. Then, Obama went to Berlin and praised together with Merkel in front of the Brandenburg Gate about the free trade agreement between the U.S. and Europe, and in July, his Department of Justice presented an amicus brief in favor of Daimler. The “seriously flawed” verdict could violate the diplomatic and commercial interests of the United States. „Expansive assertions of general jurisdiction over foreign corporations may operate to the detriment of the united states’ diplomatic relations and its foreign trade and economic interests.”

Obama instead of standing with the foreign investors could have said in this case that it is the interests of the United States, who praise themselves as the "cradle of democracy", to combat torture and that all companies that generate profits within its borders, have to respect certain rules: not to torture elsewhere in the world.

On 15 October 2013 the Supreme Court heard the case. This Supreme Court is regarded as very friendly towards the corporates. Justice Scalia asked about the "long-arm-statute," a California law that allows the extension of jurisdiction if a defendant is hiding assets in a foreign country, for example. Chief Justice Roberts pointed out that no article of the U.S. Constitution forbids a State to make a local branch responsible for the actions of the parent company. „ There's nothing in the Constitution that would prohibit a State from adopting a rule that a parent is responsible for any acts of a wholly-owned subsidiary. ¿If California said going forward, this is the rule that we're going to apply, is there any constitutional problem with that?” It will be a “a big problem to get investment in that State, but it might not violate the Constitution”. A State could do that but it is “pretty odd". Justice Sotomayor remembered that in 1983 the Court had allowed in the judgment "Container Corp." the extension of jurisdiction in the case of include foreign profits in the calculation of income taxes. The Daimler lawyer and the representative of the Ministry of Justice these are two different things: one is tax matters and the other personal jurisdiction cases.
Suppose, asked Justice Ginsburg, we had a case of an accident on a California highway injuring California people and they sued charging that the Mercedes Benz was defectively manufactured. Would there be jurisdiction over both the parent and the subsidiary? “That is a typical basis for jurisdiction under long arm statutes.” For Justice Kennedy, Daimler itself recognized the California jurisdiction creating a branch in California.

The federal court in San Francisco continues wanting to hear the case. It has the authority to do this and the Supreme Court can only intervene in the judicial independence if the Constitution is violated. In October, Justice Roberts made clear that this is not the case. If the court in San Francisco wants to scare investors it is "pretty odd" but not objectionable.

Then passed three long months. And on 14 January 2014, the Supreme Court decides to reverse the verdict of the California Court of Appeals. What was discussed in the hearing in october was no longer important. No word about judicial independence. “Even assuming that Mercedes -Benz USA qualifies at home in California, Daimler’s affiliations with California are not sufficient to subject it to the general jurisdiction of that State’s courts.” The crimes have not occurred in the U.S., so they should not be touched by US tribunals.

Of course, if a hedge fund based in the Cayman Islands sues the Argentine State in an U.S. court for payment of foreign debt and usurious interest rates, the U.S. Justice is responsible to decide the case. But if a corporation take part in the murder of his trade unionists and in the robbery of babies, then the case is withdrawn from the US justice. Extortion always pays.

"The Ninth Circuit, moreover, paid little heed to the risks to international comity posed by its expansive view of general jurisdiction”, the Supreme Court found, repeating the arguments outlined in the “Amici´s” briefs. Justice Ginsburg also cited her “concern that unpredictable applications of general jurisdiction based on activities of U. S.-based subsidiaries could discourage foreign investors”. This decision will stop all future disputes which could bother "foreign investors", because legal proceedings will now apparently depend on their approval.
With this decision, the U.S. Supreme Court destroys the main precepts of Roman law that have served as a basis for legal practice throughout Western democracies for centuries. This legal system is personified by Lady Justice (Latin: Iustitia), in the Roman mythology the goddess of Justice, an allegorical personification of the moral force. Iustitia is portrayed until today carrying two scales (to measure the strengths of a case's pro and contra) and a sword (symbolizing the power of Reason and Justice). She wears a blindfold, representing her objectivity and her impartiality, and in order to resolve a dispute without considering the social position of the involved persons.

The U.S. Supreme Court took away the blindfold of Lady Justice. In the future, every judge in the United States must pay huge heed to the risks to investors before opening a lawsuit and measuring on Iustitia’s scales the evidence of the disputing persons or corporations.

The legal documents were manipulated: The chief public prosecutor is Mr. Esteban Righi, who was the former lawyer of Néstor Kirchner and the accused Mr. José Rodríguez. The plaintiffs requested the testimonies of the directors of DaimlerChrysler AG in Germany and the seizure of the documents related to the crimes, but the official interpreter translated "Board" and "Supervisory Board" as "Internal Commission”. When the judges in Stuttgart summoned the witnesses, they called the members of the trade union (of the Internal Commission) who never had access to the requested documents of the company.
I asked the Argentinean Chamber of interpreters to correct the wrongly translated documents for the reconsideration of the public prosecutor. They denied and replied that I could request this procedure through the normal justice.

Of course, the public prosecutor in charge, Mr. Federico Delgado, was informed of the translation error. But he ignored it and in 2006, he denied competition and sent the case to another court (San Martin), far from Buenos Aires. He stated that based on his “investigations” in Germany unfortunately he could not find any evidence against the company. The case was sent to San Martin, because the torture camp of the Army (Campo de Mayo) is located there and some of the Mercedes-workers have been tortured there. In San Martin, the lawyer of the plaintiffs requested once again the testimonies of the German directors and the seizure of the related documentation of the company. But since then, in San Martín nothing was investigated against the company. In 2013, the judge Alicia Vence denied again her competition. But in December 2014, the prosecutors publicly moved to interrogate  ex production manager Tasselkraut and director of juridical affairs Cueva as defendants. The government is using the issue of human rights for its own useful propaganda. At the same time, the judge Vence sent all the files of the MBA-case to the Tribunal in La Plata.

In 14 years of "investigation", prosecutors did not interrogate the German managers about their participation in the assassinations, nor requested seizure of their records in Stuttgart.

During his visit in Buenos Aires, CEO of Daimler AG, Mr. Zetsche, announced an investment of some 800 million pesos in the factory in González-Catán. Any other payment was not mentioned in the press. When the company celebrated its 60th birthday in Argentina, Cristina Kirchner held a passionate speech about the German investors. No word about the disappeared workers and the stolen babies.

Probably, the legal procedures in Argentina will never determine and condemn the criminal responsibility of Daimler. The Argentine judicial system is corrupt, and the government does not want to mess with the large company. The crimes will never be investigated by an independent tribunal; the Daimler group has nothing to fear, in the whole world. Nevertheless, the attempts to bring Daimler to court were successful. Daimler was forced to – let’s say – “move” the U.S. Supreme Court in order to avoid an investigation. The proofs for Daimler's guilt were not refuted, the company not acquitted, not even for lack of evidence. The judges in San Francisco were forbidden to deal with the case. Power is not Justice. The murders remain unpunished. For the victims remains the consolation that the whole world knows very well who was benefited from the crimes and why justice failed, once again, facing power.

Thanks to all who have given their solidarity to the victims, especially to the lawyers Dan Kovalik and Terry Collingsworth and the judges of the Court of Appeals in San Francisco. They gave them, at least, dignity.
 

In March 2022, argentine Judge Alicia Vence - after 16 years of completely useless investigations - ruled that there was insufficient evidence against Tasselkraut. She dropped the case. The victims' attorneys have appealed against this.