January 13-19, 2001 Developments in international law, prepared by the Attorney-Editors ofInternational Legal Materials The American Society of International Law
ECHR: Ocalan v. Turkey (Decision
as to Admissibility), No. 46221/99 (December 14, 2000)
The European Court of Human Rights ("Court") declared
partially admissible an application against Turkey submitted
by Mr. Ocalan, leader of the Workers' Party of Kurdistan
("PKK"), who had been arrested in Kenya, transferred
to Turkey's prison island of Imrali, tried and sentenced
to death. The Facts, Sect. I.A; Disposition.
Mr. Ocalan claimed inter alia that: 1) the death
sentence amounted to an infringement of the right to
life guaranteed by Article 2 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms
("Convention"); 2) the arrest had rendered him a "victim
of abduction" contrary to Convention Article 5; 3) the
arrest was unlawful and prejudiced the fairness of the
subsequent trial, for which the tribunal was neither
impartial nor independent as required by Convention
Article 6; and 4) the arrest and death sentence were
predicated on Mr. Ocalan's ethnic origins and political
opinions on the Kurdish question in Turkey, contrary
to Convention Articles 9, 10 and 14. Complaints,
Sects. 1-4, 7, 9.
The Court declined to find as manifestly ill-founded
or otherwise inadmissible Mr. Ocalan's complaints regarding:
1) the death sentence; and 2) the post-arrest transfer
and detention in Turkey. The Law, Sects. II-III.
The Court found that such claims raised "complex legal
and factual issues" that required examination of the
merits. Id.
The Court rejected as manifestly ill-founded Mr. Ocalan's
complaint under Convention Article 5, Section 2 that
he had not been informed of the reasons for the arrest.
The Law, Sect. IV.B. The Court considered that
Mr. Ocalan "must or should . . . have been aware . .
. that he was being arrested for his activities as the
leader of a banned organisation, the PKK." Id. The
Court also rejected as untimely Mr. Ocalan's request
for compensation under Convention Article 5, Section
5 for the "inordinate length of time" spent in police
custody. The Law, Sect. IV.C. The Court found
that Mr. Ocalan had lodged the request beyond the six-month
period laid down by the Convention, and which ran from
Mr. Ocalan's release from police custody. Id.
The Court dismissed Turkey's preliminary objection
to admissibility, which had been raised on the basis
of an allegedly forged Ocalan signature before the Court
granting authority to Mr. Ocalan's representative. The
Law, Sect. I. The Court held that while: 1) it was
not disputed that Mr. Ocalan had been arrested just
prior to the submission; and 2) neither the representative
in question nor Mr. Ocalan's other lawyers could have
contacted Mr. Ocalan on that date, there was no evidence
that Mr. Ocalan wished to: 1) abandon or withdraw the
application; or 2) alter the effect and/or substance
of the allegations and observations submitted by Mr.
Ocalan's counsel. Id. BM
U.S. Second Circuit Court of Appeals:
Blondin v. Dubois, No. 00-6066 (January 4, 2001)
On a second appeal by the father of two abducted children,
the U.S. Court of Appeals for the Second Circuit ("Second
Circuit") examined whether the U.S. District Court for
the Southern District of New York had on remand correctly
refused to repatriate the children under the "grave
risk of psychological harm" exception ("Exception")
contained in the Hague Convention on the Civil Aspects
of International Child Abduction ("Convention"). Sect.
I. [See August 16-20, 1999
ILIB for abstract of first decision.]
The Second Circuit found itself presented with a "rare
situation" in which the children's father, a resident
of France, had presented no evidence that would contradict
an expert's finding that the children would "almost
certainly suffer a recurrence of their traumatic stress
disorder" if returned to France. Sect. II.B. The Second
Circuit further found that the French authorities could
not provide the children with necessary protection upon
repatriation, as such would require the "impossible
task" of ensuring that their return would not trigger
a recurrence of traumatic stress disorder. Id.
The Second Circuit rejected as lacking merit the father's
challenge to the district court's factual finding that
it could consider the views of one daughter, aged eight.
Sect. II.D. The Second Circuit noted that Convention
Article 13 inter alia provides that a child's
views concerning the essential question of return or
retention may be conclusive, provided that the child
has "attained an age and degree of maturity sufficient
for its views to be taken into account." Id. The
Second Circuit held that the father's argument would,
if accepted, "read into" the Convention "an age limit
that its own framers were unwilling to articulate as
a general rule." Id.
The Second Circuit also held that the district court
had not erred in considering as one factor in its Exception
analysis evidence that the children were "well-settled"
in the United States, given that such evidence was clearly
not by itself the dispositive factor in the case. Sect.
II.C.
The Second Circuit for these reasons rejected the appeal
and affirmed the district court's decision. Sects. II.B,
III. BM
U.S. Second Circuit Court of Appeals:
Watman v. Deutsche Bank, No. 00-7130 (January
4, 2001)
Members of groups persecuted by the Nazi regime during
World War II ("Plaintiffs") sought redress for "various
torts and international law violations" committed by
certain German banks as well as Bank Austria AG and
Creditanstalt AG ("Austrian Banks"), which the Plaintiffs
alleged had "cooperated and conspired with the Nazi
Regime to convert plaintiffs' assets on deposit with
defendant banks and to exploit and profit from slave
and forced labor." Preamble; Sect. I.B. [See
July 22-August 4, 2000 ILIB
and November 4-10, 2000 ILIB
for abstracts of decisions regarding similar claims
against Swiss banks, and July
22-August 4, 2000 ILIB for abstract of U.S.-German
treaty settling Nazi-era and World War II claims against
German companies.]
After reaching a settlement agreement with the Austrian
Banks, the Parties sought: 1) certification of the plaintiff
class ("Class") for settlement purposes; and 2) approval
of the settlement. Preamble. Thereafter, three
days prior to a hearing in which the district court
would decide on the settlement's fairness, reasonableness
and adequacy, one Mr. Georgi inter alia: 1) moved
to intervene; 2) objected to the settlement's terms;
and 3) alleged that the existing parties were providing
inadequate representation. Sect. I.B.
The U.S. District Court for the Southern District of
New York: 1) denied Mr. Georgi's motion as untimely;
and 2) approved a $40 million settlement, including
$30 million to pay allowed claims, and $10 million to
inter alia fund a Historical Commission that
would inter alia investigate and publish and
report concerning the Austrian Banks' activities during
the Nazi era. Preamble; Sect. I.C.
On appeal by Mr. Georgi, the U.S. Court of Appeals
for the Second Circuit ("Second Circuit") noted inter
alia that the Austrian Banks would under the settlement:
1) assign to the Class any and all of their restitution,
indemnification and contribution claims against "any
financial institution or commercial enterprise" that
had exercised "dominion or control" over the Austrian
Banks during the period from January 1, 1938 through
December 31, 1946; and 2) locate and provide to the
Class all relevant documents in their custody and control,
or knowledgeable witnesses in their employ, in regard
to the Plaintiffs' claims against the defendant German
Banks, including information concerning the German Banks'
exercise of control over the Austrian Banks. Preamble;
Sect. I.C.5.
The Second Circuit noted the district court's finding
that many of the claimants were elderly, and that Mr.
Georgi's late intervention would "potentially derail"
the settlement. Sect. II.A. The Second Circuit was satisfied
that the district court had applied "appropriate scrutiny"
to the negotiation process, (Sect. II.B.1), and noted
the district court's conclusion that no sum of money
"could ever be thought of as righting the wrongs committed
during the Holocaust." Sect. II.B.2. The Second Circuit
concluded that "under the unique circumstances of this
difficult case" the district court had not abused its
discretion in concluding that the settlement was fair,
reasonable and adequate. Sects. II.B.2, III.
The Second Circuit affirmed the district court's: 1)
approval of the settlement agreement; and 2) denial
of Mr. Georgi's motion to intervene, on the basis of
untimeliness. Sect. III. PH
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