September 14 - 25, 1998 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
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European Court of Human
Rights: Case of Lauko v. Slovakia, 4/1998/907/1119 (September
2, 1998).
The Court held unanimously that a small
administrative fine levied against a defendant under Slovakia's
Minor Offenses Act constituted a criminal penalty for
the purposes of Article 6 sect. 1 of the European Convention
on Human Rights, which guarantees a hearing before an
independent and impartial tribunal established by law
for anyone charged with a criminal offense.
Mr. Lauko became involved in a dispute with
his neighbors, whom he accused of harassing him in order
to dissuade him from buying an apartment. After local
police found no basis for his complaint, they reported
Lauko to the town's Local Office (Obvodny Urad)
pursuant to section 63 of the Minor Offenses Act of 1990.
The Local Office fined Lauko 300 Slovak crowns (SKK) plus
SKK 150 in costs for making unjustified accusations.
Lauko appealed the decision to the District Office, which
affirmed. Lauko subsequently brought a complaint
before Slovakia's Constitutional Court, alleging a violation
of Article 6 sect. 1 of the European Convention on Human
Rights, in that there had been no public hearing of his
case and the administrative authorities dealing with it
had not been impartial. The Constitutional Court
rejected the claim as "manifestly ill-founded," holding,
inter alia, that the Minor Offenses Act only provided
for judicial review of fines in excess of SKK 2000.
In subsequent proceedings before the European
Court of Human Rights, the Slovakian Government argued
that Article 6 sect. 1 was inapplicable because the offense
in question constituted an "administrative infraction"
that was not considered criminal under Slovak law.
The Court held that the respondent State's own classification
of the offense had only relative significance. Examining
both the nature of the offense (including threats of bodily
harm and rude behavior) and the severity of the penalty
(a punitive fine), the Court held that the offense met
the definition of a criminal offense under the Convention.
The Court further found that the administrative bodies
which had dealt with the case were controlled by the executive
branch and thus lacked the independence required for judicial
review under the Convention. CB http://www.dhcour.coe.fr/eng/LAUKO%20ENG.html
United States v. Nippon
Paper Industries, Co., Ltd., Order (D. Mass., July 28,
1998)
The U.S. District Court for the District
of Massachusetts has allowed the use of video teleconferencing
to take the testimony of a prosecution witness located
in Japan. The case involved a criminal antitrust
action against several Japanese paper companies accused
of attempting to fix prices of thermal fax paper sold
in the United States.
In granting the government's motion to allow
the use of vide teleconferencing, the Court drew from
precedent associated with videotaped testimony under Federal
Rule of Criminal Procedure 15, which allows deposition
of a witness by videotape under "exceptional circumstances."
The Court noted that one of the main constraints on the
use of videotape has traditionally been its incompatibility
with the Sixth Amendment's Confrontation Clause, which
guarantees the right of the accused, "in all criminal
prosecutions ... to be confronted with the witnesses against
him." An important part of this confrontation is
the opportunity for the jury to evaluate a witness's demeanor
first hand. The court found that simultaneous video
teleconferencing avoided many of these problems, since
it allows real-time questioning and cross-examination
of a witness in a formal trial setting in the presence
of the judge, jury, and counsel.
Despite objections by the defendant, the
court in this instance did not take the teleconference
testimony in the presence of the jury. Citing time
differences and concerns over the witness's poor health,
Judge Gertner ordered that the teleconference testimony
be recorded and replayed for the jury the following day.
She ruled that the defendant, having "waived the principle
components of its Confrontation Clause rights by agreeing
to the appearance of the witness through a videoscreen
... had also waived his right to confront the accuser
in 'real time.'"
Judge Gertner cautioned, however, that although
the demands for the use of video teleconferencing in international
litigation are likely to increase, the loss of the immediacy
of face-to-face contact between the witness and the others
present in the courtroom still argues for limiting its
use. CB
The Permanent Council of the Organization
of American States resolved September 16, 1998 to work
with member states and the private sector in the exchange
of information regarding the year 2000 conversion problem.
The Permanent Council called upon the General Secretariat
of the OAS to coordinate efforts in particular with the
United Nations, the World Bank, and the Inter-American
Development Bank and to "take whatever additional steps
may be necessary" to ensure that all OAS information systems
and related equipment are year 2000 compliant well before
September 30, 1999. DL
full text available in USIA Daily Washington Filehttp://www.usia.gov/products/washfile.htm
US-Ireland: Joint Communiqué
on Electronic Commerce
The United States and Ireland signed a Joint
Communiqué recognizing the growing importance of
the promotion of electronic commerce. The Communiqué,
which builds on the principles of the US-EU Joint Statement
on Electronic Commerce, emphasizes the role of the private
sector in the development of electronic commerce, and
states the principle that taxes and regulations should
be non-discriminatory, neither favoring nor disadvantaging
electronic commerce. The Joint Communiqué
was signed by Bertie Ahern, T.D., for Ireland and President
Clinton using digital signatures. DL http://www.irlgov.ie/tec
Text of the Communiqué at Baltimore Technologies
showing digital signatures http://www.baltimore.ie/clintonvisit98/index.html
International Law In Brief - Copyright 1998 - The American
Society of International Law
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