JURIST - Paper Chase: Monday, January 21, 2013

[JURIST] US Court of Appeals for the Second Circuit [official website] on Friday dismissed [opinion, PDF] an appeal by Arab Bank, PLC from an order imposing discovery sanction for lack of jurisdiction in a lawsuit brought against the bank under Anti-Terrorist Act [18 U.S.C. § 2333, LII backgrounder] and Alien Tort Claims Act [28 U.S.C. § 1350, LII backgrounder]. The lawsuit was brought by US and foreign victims and families of victims of terrorist attacks in Israel during the period between 1995 and 2004, who allege that the bank, which had branches in New York, provided financial support to terrorists during the period at issue. The plaintiffs demanded documents pertaining to the case, including bank accounts held by terrorist organizations and individuals affiliated with such groups. The bank has denied plaintiffs' requests, arguing that the documents were protected by foreign bank secrecy laws. The US District Court for the Eastern District of New York [official website] imposed a sanction pursuant to Federal Rule of Civil Procedure 37 [Cornall LII backgrounder] allowing the jury to infer that Arab Bank (1) provided financial services to terrorists and terrorist organizations and (2) did so knowingly and purposefully. Basing its reasoning on the three-prong test established in Cohen v. Beneficial Industrial Loan Corp., the appeals court determined that it cannot review the defendant's appeal. First, although the district court's sanction order is "conclusive," it is both "intertwined with the merits" of the case and is "effectively reviewable after final judgment." Second, the sanction was "inextricably intertwined with the merits of the action" because it directly affects the resolution of the merits of the case. Lastly, the jury verdict may be reversed if there is finding that the jury instruction in fact had prejudicial effect on the defendant. Thus, there would be an effective remedy available for the defendant. In addition, the court held that the bank is not entitled to a writ of mandamus because it failed to prove its right to such is "clear and indisputable" and because it has alternative means to obtain relief.

Authorities around the world have been tracking down members and supporters of the al Qaeda [JURIST news archive] and other terrorists groups. Last month, the US Senate [official website] passed [JURIST report] the Reauthorization Act of 2012 [text, PDF] to extend the Foreign Intelligence Surveillance Amendments Act of 2008 (FISA) [text, PDF] for five years. FISA grants the National Security Agency (NSA) [official website] the authority to conduct surveillance of Americans’ phone calls and emails in attempts to protect against terrorism and other foreign threats. During the same month, Canada's controversial Anti-Terrorism Act [text; CBC backgrounder] was deemed constitutional [JURIST report] by the country's Supreme Court [official website]. In August a judge in Spain charged [JURIST report] two Russian nationals with possession of explosives and membership in a terrorist organization, after they were arrested last week on suspicion of plotting an attack. A month earlier, French authorities announced [JURIST report] that they arrested a suspected terrorist who was born in Tunisia in 1977 and resided in the French city of Toulon and allegedly has ties to al Qaeda. In June a New York native and terrorism suspect pleaded guilty [JURIST report] to charges that he provided the al Qaeda with money and computer assistance.

[JURIST] A lawyer for former Ukrainian prime minister Yulia Tymoshenko [personal website; JURIST news archive] announced Monday that a criminal investigation has been initiated against him. The criminal investigation against Serhiy Vlasenko involves [AP report] alleged car theft, robbery and failure to obey a court order. Vlasenko has denied all allegations and condemned the government's action as being politically motivated to deprive Tymoshenko of her defense, just three days after Prosecutor General Viktor Pshonka [official website, in Ukrainian] charged [JURIST report] Tymoshenko with murder for her role in the contract-style killing of Yevhen Shcherban and two others in 1996. Vlasenko stated that the allegations were based on groundless facts because the car theft involved taking of his own car that his divorced wife claims to be hers while the robbery charge relates to taking of his ex-wife's cellphone to erase some video files of himself. Although Vlasenko is protected under the parliamentary immunity, he expects that such protection will be eliminated within the next three weeks, making him subject to arrest. If prosecuted for the allegations, he may face a prison term of seven years.

Tymoshenko has already been sentenced to seven years in prison on corruption charges and is currently awaiting trial for charges of tax evasion [JURIST reports]. That trial has been postponed multiple times [JURIST report] since it began in April. The trials against the former prime minister have sparked international criticism. In September the US Senate Foreign Relations Committee [official website] unanimously passed [JURIST report] a resolution calling for Ukraine to release Tymoshenko from prison. It condemned current Ukrainian President Viktor Yanukovych [official website] for his role in the allegedly politically motivated imprisonment. In August the Ukrainian Supreme Court [official website, in Ukrainian] upheld [JURIST report] Tymoshenko's abuse of office conviction. During the appeal the government denied allegations that the criminal proceedings against Tymoshenko were a measure initiated by Yanukovich to prevent her from participating in the October elections. The decision came only a day after the European Court of Human Rights [official website] held a hearing [JURIST report] on Tymoshenko's appeal.

[JURIST] A Milan court on Monday set a timetable for hearings in the underage sex trial of former Italian prime minister Silvio Berlusconi [BBC profile, JURIST news archive], setting the last session of the trial for early March, two weeks after the February 24–25 national elections. One of many proceedings against Berlusconi, the in this case the ex-premier is charged [JURIST report] with paying then 17-year-old dancer Karima "Ruby" El Mahroug for sex and abusing his power by asking police to release her after she was detained for an unrelated theft crime. Berlusconi, who denies all charges, welcomed this decision, having requested to have the trial suspended for fear of an adverse verdict in the middle of his campaign for a fifth term in office. Milan judges rejected [Reuters report] the suspension requests last week and again on Monday. The next hearing is set [Gazzeta del Sud report] for January 28, where El Mahrough's mother will testify for the defense.

Berlusconi is currently a defendant in four trials. In addition to the sex accusations he faces charges of publicly releasing private wiretaps, embezzlement and tax fraud [JURIST reports]. Last week, a request to suspend his tax fraud appeal's trial was also rejected [JURIST report] by Milan Judges. Despite numerous trials Berlusconi has never served prison time. In January 2011, however, the Italian Constitutional Court [official website, in Italian] held hearings and subsequently struck down [JURIST reports] portions of a law [materials, in Italian] backed by Berlusconi granting the premier and other public officials temporary immunity from charges while in office.

[JURIST] The second International Crimes Tribunal in Bangladesh (ICTB) [Facebook page; JURIST news archive] on Monday sentenced to death 64-year-old televangelist Abul Kalam Azad, also known as "Bachchu Razakar," for crimes committed during the 1971 Bangladesh Liberation War [GlobalSecurity backgrounder]. The ICTB found Azad guilty in absentia of murder, rape, destruction of property, theft and of threatening witnesses to keep them from testifying against him. Azad, a former leader of the Islamist party Jamaat-e-Islami (JI) [official website; GlobalSecurity backgrounder], is said to have collaborated with Pakistani forces in the murder of Hindus during the war before fleeing to Pakistan to avoid charges [JURIST report]. However, the party as a whole has denied allegations that it collaborated with Pakistan, and has asserted that the current government fabricated war crimes [Reuters report] to leverage political power. Azad's sentence is the first to be handed down by the ICTB, with 11 other defendants currently awaiting verdicts.

Bangladeshi officials established the ICTB [JURIST report] in March 2010 to investigate and prosecute crimes committed in the Bangladesh Liberation War, during which officials estimate that Pakistani soldiers and local militia participated in more than three million killings and 200,000 rapes. Since then, the ICTB has been fraught with controversy and conflict. Earlier this month, the second ICTB rejected a plea for a re-trial [JURIST report] from JI assistant Secretary General Abdul Quader Molla. The tribunal included three high court judges and six investigators retired from civilian, law enforcement and military careers, however Justice Mohammed Nizamul Huq resigned from his post [JURIST report] in December. In June the ICTB rejected a bail petition [JURIST report] from JI leader and former Parliament member Delwar Hossain Sayeedee. In January 2012, the ICTB ordered the arrest [JURIST report] of Ghulam Azam, 89, for alleged crimes against humanity. In November 2011 the ICTB began its first trial [JURIST report] with the case against Delwar Hossain Sayedee. He is charged with 20 alleged violations of the International Crimes (Tribunals) Act of 1973 [text, PDF] including genocide, arson, rape and torture.