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In case of fugitive Italian executive of whom France had requested extradition, Ninth Circuit dismisses fugitive’s appeal based on “disentitlement” doctrine
Giancarlo Parretti, an Italian citizen, was heading Pathe Communications when it bought MGM-United Artists for $1,300,000,000 in 1990. The newly created entity soon had cash flow problems. In 1995, Parretti entered the U.S. from Italy to face perjury charges in Delaware state court and to give a deposition for another law suit in California.
By diplomatic note to the U.S. State Department the next day, France asked for Parretti’s “provisional arrest” pursuant to Article IV of the 1909 Treaty of Extradition [22 U.S.T. 407, as amended, T.I.A.S. 7075]. France was interested in matters related to the MGM deal.
Authorities arrested Parretti in California. The district court denied his application for bail and his petition for a writ of habeas corpus based on the alleged unconstitutionality of his arrest. Upon Parretti’s timely motion for emergency review, the U.S. Court of Appeals for the Ninth Circuit ordered him released while France’s extradition request was pending. Parretti soon fled the U.S.
The Ninth Circuit, in an en banc opinion, dismisses the appeal. The Court applies the “disentitlement doctrine” because Parretti had fled the U.S. while his appeal was pending. If the Court were to reach the merits of Parretti’s claims, it would not bring him back to the U.S. Furthermore, the dismissal deters defendants from fleeing the jurisdiction.
Citation: Parretti v. U.S., No. 95-56586 (9th Cir. May 1, 1998). [International Law Update reported on the Ninth Circuit's decision to release Parretti, see 1997 Int'l Law Update 64. Please note that the U.S. and France have concluded a new Extradition Treaty, see 1996 Int'l Law Update 71].
Filed in: 1998 International Law Update, Issue 5
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Canadian Supreme Court holds that failure of U.S. authorities, who gave accused satisfactory Miranda warnings under American law, to readvise accused when questioning turned to more serious offense in compliance with Canadian Charter of Rights did not require exclusion of her inculpatory statement in Canada
While Stephen Hagerman was in Canadian custody awaiting extradition to the United States, Ms. Harrer, his girlfriend, helped him to escape. Harrer later found herself in the U.S. where a federal marshal and an immigration official interviewed her in Cleveland. After giving her Miranda warnings, they questioned her about her possibly illegal presence in the U.S. and, at a later interview, about Hagerman’s whereabouts. When confronted by information supplied by Canadian authorities, Harrer finally admitted that she had helped Hagerman in his escape. When she got back to Canada, the government charged her with aiding in Hagerman’s escape. She persuaded the trial court that the failure of U.S. authorities to readvise her of her right to counsel when the interview shifted from issues of immigration to issues of involvement in a felony violated the Canadian Charter of Rights and made her statements inadmissible. The government successfully appealed her acquittal but Harrer secured further review.
The Supreme Court of Canada dismisses her appeal as lacking in merit. In the view of seven judges, the Charter would ordinarily preclude use of Harrer’s statement because it would violate her right to counsel under the terms of § 10(b). The Charter, however, imposes duties directly only on government officials of Canada, its provinces and territories. Absent a showing that the U.S. authorities who obtained Harrer’s statement were questioning her on behalf of Canadian officials, Article 10(b) of the Charter does not directly control the admissibility of her statement.
The question remains whether admitting the statements would deprive Harrer of a fair trial under the Charter or under basic principles of Canadian justice. The Court concludes that it would not. Although the single set of Miranda warnings did not meet the more rigorous Canadian requirements, the fact that police did give warnings is relevant in assessing the overall fairness of admitting the statement.
Two concurring judges go further and argue that the Canadian Charter cannot apply to non-Canadian officials acting outside of Canadian territory. Obtaining a statement under American procedure, which applies to a Canadian in the United States, does not bar admissibility thereof in Canadian courts if there is no fundamental unfairness. For Canadian courts to try to insist on extraterritorial compliance with its Charter would violate accepted principles of international reciprocity and would make prosecution of international offenses difficult if not impossible.
Citation: Harrer v. The Queen, 101 C.C.C.3d 193 (Can. Sup. Ct. 1995).
Filed in: 1996 International Law Update, Issue 3
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Plaintiffs injured by wartime atrocities in Bosnia may file federal Alien Tort suit against Bosnian Serb leader as private citizen, according to Second Circuit
Croat and Muslim citizens of Bosnia-Herzegovina filed suit in federal court under 28 U.S.C. § 1350 alleging that Bosnian-Serb military forces violated customary international law by committing atrocities such as rape and torture upon them during the Bosnia civil war. The defendant is Radovan Karadzic, President of the self-proclaimed Bosnian-Serb republic “Srpska” within Bosnia-Herzegovina. Plaintiffs had Karadzic personally served while he was in New York as an invitee of the United Nations. Although the district court dismissed the action for lack of subject-matter jurisdiction, the U.S. Court of Appeals for the Second Circuit reverses.
In the Court’s view, the law of nations no longer binds only sovereign states. Certain forms of conduct may violate international law whether undertaken by governmental agents or by private individuals. Examples are international bans against piracy, slave trade and certain war crimes. At this stage, “[i]t suffices to hold … that the alleged atrocities are actionable under the Alien Tort Act, without regard to state action, to the extent that they were committed in pursuit of genocide or war crimes, and otherwise may be pursued against Karadzic to the extent that he is shown to be a state actor.” [8221]
Citation: Kadic v. Karadzic, No. 94-9035, 64 U.S.L.W. 2231 (2d Cir. October 13, 1995).
Filed in: 1995 International Law Update, Issue 3
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[Editorial Note: The UN war crimes tribunal at The Hague is the first international body for prosecuting war crimes since the Nuremberg and Tokyo tribunals after World War II. It has indicted 43 suspects, including Karadzic, on charges of genocide and war crimes. For more information on the Tribunal, contact the UN International Criminal Tribunal for the Former Yugoslavia, Phone (31)(70) 416-5343, FAX (31)(70) 416-5355].
EMPLOYMENT
Fifth Circuit rules that American subsidiary of Japanese parent company has standing to raise parent’s FCN Treaty defense to charge of employment discrimination based on race and national origin
Upon being demoted and fired, Theodore Papaila, a Caucasian of American origin, sued Uniden American Corporation (UAC) alleging job discrimination based on race and national origin. UAC is an Indiana Corporation and a wholly-owned subsidiary of Uniden Corporation, a Japanese corporation based in Tokyo. Papaila alleged that UAC treated certain of its Japanese employees more favorably as to base salaries, fringe benefits and job security. The trial judge granted summary judgment to UAC on the grounds that Article VIII(1) of the United States-Japan Treaty of Friendship, Commerce and Navigation of 1953, 4 U.S.T. 2063, precluded Papaila’s claims.
The U.S. Court of Appeals for the Fifth Circuit affirms. This FCN Treaty allows Japan to incorporate subsidiaries under U.S. law that would normally be “American” companies subject to Title VII of the Civil Rights Act. Article VIII(1), however, allows the parent to hire and place Japanese citizens in certain key management positions within the sub. Although the FCN Treaty does not apply in terms to American companies, the Court holds that UAC has standing to claim the Treaty defense on behalf of its parent, at least with respect to the employment decisions the parent made.
Citation: Papaila v. Uniden American Corp., 51 F.3d 54 (5th Cir.), cert. denied, 116 S.Ct. 187 (1995).
Filed in: 1995 International Law Update, Issue 3
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D.C. Circuit lifts lower court injunction against physical surrender of extraditees
On August 31, 1995, the District Court for the District of Columbia concluded that the U.S. extradition statute (18 U.S.C. 3184) violates the separation of powers doctrine by permitting the Secretary of State to “review” decisions of extradition judges. On September 15, 1995 the court enjoined the government from “surrendering, under Title 18, § 3184 et seq., of the United States Code, the plaintiffs or any member of the plaintiff class to another nation, pending further order of this court.” [see 1995 Int'l L. Update 4 (October)]. On September 29, 1995, the U.S. Court of Appeals for the District of Columbia Circuit issued a brief order lifting the injunction. The Court stayed the district court’s order of September 15, 1995, with respect to all persons other than the petitioners.
In the meantime, federal courts have issued orders on extraditions. In one case, the U.S. District Court for the Southern District of New York did not follow Lobue. Switzerland is seeking the extradition of Ira Harvey Cherry under the U.S.-Swiss extradition treaty. The court concluded that Lobue is insufficient to afford petitioner relief at this time. Cherry’s claims under Lobue are not ripe unless and until the magistrate judge has found that petitioner is extraditable. Furthermore, Lobue appears inconsistent with Ward v. Rutherford, 287 U.S.App.D.C. 246, 921 F.2d 286 (1990), which found the extradition statute to be constitutional. See Cherry v. Warden, 95 Cr. Misc. 1 p.7 (S.D.N.Y. October 11, 1995).
Citation: Lobue v. Christopher, No. 95-5293 (D.C. Cir. September 29, 1995).
Filed in: 1995 International Law Update, Issue 2
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United States and Europe reach agreement on mutual cooperation in the enforcement of their respective competition laws
Effective retroactively to September 23, 1991, the United States and the European Community concluded an agreement that will govern the interaction between the U.S. and EC competition laws. Since the European Court of Justice had found that the EC Commission alone lacked competence to approve such an arrangement, the EC Council concluded it on April 10, 1995.
Under this agreement, each party must notify the other whenever its competition authorities become aware that their enforcement activities may affect important interests of the other party (which includes mergers and acquisitions). The EC and U.S. competent authorities may coordinate their enforcement activities.
To avoid conflicts, the agreement outlines factors to determine whether a party’s “important interests” are affected by a certain enforcement activity, and provides for consultations.
The competent authority for the EC is the Commission. The Antitrust Division of the U.S. Department of Justice and the Federal Trade Commission are the competent authorities for the U.S.
The agreement broadly defines “anticompetitive activities” as any conduct or transaction that is impermissible under the competition laws of either party.
Citation: Decision of the Council and the Commission of 10 April 1995 concerning the conclusion of the Agreement between the European Communities and the Government of the United States of America regarding the application of their competition laws, 1995 Official Journal (L 95) 45, April 27, 1995. The interpretative letter should be replaced by the one published in a corrigendum at 1995 Official Journal (L 131) 38, June 15, 1995.
Filed in: 1995 International Law Update, Issue 1
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DC District Court finds federal extradition statute unconstitutional on Separation of Powers grounds
Two off-duty Chicago police officers allegedly tried to take a woman from her Canadian parents and back to the U.S. Canada sought to extradite them on kidnapping charges. The U.S. District Court for the District of Columbia holds, however, that the 150-year-old extradition statute [18 U.S.C. §§3181-3195] violates separation of powers.
Judge Lamberth explains this result: “Once a federal extradition judge has certified an individual as extraditable, §3184 commits to the Secretary of State’s sole discretion the decision whether to complete the extradition process by signing a warrant of surrender. … The question presented by this case is whether a statute may confer upon the Secretary of State the authority to review the legal determinations of federal extradition judges. Upon consideration of the relevant authorities, the court finds that, while the statute certainly purports to grant the Secretary this power, it is a power which the Constitution forbids him from exercising.” [6]
Thereafter, the plaintiffs filed a motion for emergency relief. On September 15, 1995, Judge Lamberth issued a two-page order certifying as a class all people against whom the U.S. Government has sought or will seek extradition. He then enjoined the U.S. from physically extraditing anyone to any foreign state until the issue has been resolved on appeal.
Citations: Lobue v. Christopher, No. 95-1097 (D.D.C. August 31, 1995).
Switzerland to revise law on international judicial assistance in criminal matters with effects on the Swiss-American MLAT
On May 23, 1995, the Swiss Government issued a Note concerning proposed changes in the Swiss Law on Judicial Assistance, the Treaty with the U.S. on Judicial Assistance in Criminal Matters, and on a Reservation concerning the European Agreement on Judicial Assistance in Criminal Matters.
The proposed revisions will address the delays in judicial assistance that parties have experienced in the past (for example in the Pemex and Marcos cases). The delays are due to the burdensome procedure required by the Law on Judicial Assistance in Criminal Matters (Bundesgesetz vom 20. März 1981 über internationale Rechtshilfe in Strafsachen, IRSG), because procedures differ among the Swiss Cantons, and because parties have abused procedural remedies to delay the process.
In particular, the revisions will simplify the IRSG, for example, by limiting the procedural remedies, by dropping the formal objection, and by unifying the procedure for judicial assistance for the whole country. According to the proposal, only individuals who are directly affected by a measure of judicial assistance may lodge an objection.
The proposal would reserve Switzerland’s right to refuse judicial assistance if a court has already considered the subject matter in a criminal proceeding. They would also require that the requesting party use the results of the judicial assistance only for the purposes specified in the official request.
The Note contains the drafts of the revised IRSG, the revised Law on the Treaty with the U.S. on Mutual Assistance in Criminal Matters (Bundesgesetz vom 3. Oktober 1975 zum Staatsvertrag mit den Vereinigten Staaten von Amerika ueber gegenseitige Rechtshilfe in Strafsachen, BG-RVUS), and the Swiss reservation to the European Convention.
The competent authority for judicial assistance in criminal matters in Switzerland is the Federal Police Agency (Bundesamt für Polizeiwesen).
Citation: Botschaft betreffend die Änderung des Rechtshilfegesetzes und des Bundesgesetzes zum Staatsvertrag mit den USA ueber gegenseitige Rechtshilfe in Strafsachen …, 1995 Bundesblatt, number 20, Band III, May 23, 1995. The Treaty on Mutual Assistance in Criminal Matters, United States Switzerland (May 23, 1973) is at 27 U.S.T. 2019, T.I.A.S. No. 8302 (entered into force January 23, 1973).
Filed in: 1995 International Law Update, Issue 1