American Jailed in Cuba Loses Suit Against US Government

By Michael Yoakum
Impunity Watch Reporter, North America

 

HAVANA, Cuba –  A federal district judge in Washington dismissed a case brought by Alan Gross against the United States government on Tuesday.  Gross, a contractor for the State Department, was detained by Cuban authorities in 2009 for distributing communication devices to Jewish communities in Cuba as part of a democracy building program.

Alan Gross received a fifteen year sentence for his contract work with the State Department. (Photo Courtesy of ABC)

Gross was convicted of using communications technology to undermine the Cuban government in March 2011 and sentenced to fifteen years in prison.  The US government made attempts to negotiate Gross’s release.  However, the Cuban government attempted to tie the release of Cuban spies held in the US into negotiations.  When diplomatic efforts to free Gross failed, Gross’s wife brought suit against the US government and Developer Alternatives, Inc., the private contractor that hired him.

Developer Alternatives has since settled with Gross; however, his legal battle with the US government is far from over.  One of Gross’s attorneys, Scott Gilbert told the Washington Post that Gross “plan[s] to file promptly a notice of appeal”.

Legal experts expressed little surprise that the district court dismissed Gross’s complaint, citing a rule barring lawsuits against the US government under the Federal Tort Claims Act for harms suffered in foreign countries.  Gross argued against the exception, reasoning that the alleged negligence of the State Department took place within the US.  However, the district judge disagreed, noting that Gross’s injury – being imprisoned – took place in Cuba.

While Gross’s legal prospects look grim, his suit has illuminated embarrassing details of the democracy building programs run by the State Department and Developer Alternatives.

In his suit, Gross alleged that he was sent to Cuba on five separate occasions without proper training, protection, or knowledge of relevant Cuban laws.  Gross further claimed that he wrote memos after returning from each trip that expressed concern about the high risk involved in the trips.

Gross asserted in his complaint that the State Department and Developer Alternatives were aware of the growing risk to his safety and ignored the danger.

Gross’s legal battle may have stalled for the moment.  However, as Peter Phillips, founder of the Cuba Research Center, notes, the “bigger battle is trying to get him free.”

 

For further information, please see:

Washington Post – Lawyers for American imprisoned in Cuba appeal ruling dismissing case against US government – 31 May 2013

ABC – Alan Gross, lawsuit against U.S. dismissed – 29 May 2013

Global Post – American jailed in Cuba loses lawsuit against US – 29 May 2013

The Blog of LegalTimes – Court: American Jailed in Cuba Can’t Sue U.S. Government – 29 May 2013

The New York Times – American Contractor Held in Cuba Loses a Lawsuit – 29 May 2013

Egypt’s Supreme Constitutional Court rules both parliament and constitution illegal

by Darrin Simmons
Impunity Watch Reporter, Middle East

CAIRO, Egypt-Crowds gathered outside Egypt’s highest court in anticipation of its ruling on the legality of parliament’s Muslim Brotherhood-led upper house, the Shura Council, and the panel that recently drafted Egypt’s constitution.  Signs titled, “No to Muslim Brotherhood terrorism,” waved on as protesters awaited the decision.

 

Supreme Constitutional Court rules Egypt’s parliament illegal (Photo Courtesy of Aljazeera)

On Sunday June 2nd, Egypt’s Supreme Constitutional Court ruled that the laws governing the election of members to the Shura Council were unlawful and against the panel that drafted the constitution.  The invalidity of the upper house election laws follows a similar ruling dissolving the lower house that was issued by the Court last June.

A leading opponent of the Brotherhood led Shura Council, Mohamed ElBareadei, declared the court ruling as “an expected result of a low-level understanding and political thuggery that has toppled the concept of legitimacy and the rule of law.”

Lawyers challenged the Shura Council election laws on the grounds that there were irregularities in the mechanics of the election.  These irregularities included newly enacted civil society laws that were criticized by the West and human rights groups for being a threat to democratic freedoms.  Proposals for judicial reform that increased tension between judges and the Islamists who oppose them were also questioned.

Division and deadly riots in Egypt have resulted from the election of the Shura Council and its panel. Egyptians are separated between the supporters of Egypt’s President Mohamed Morsi and the opposition which includes leftists, secularists, deeply religious Muslims, and Christians. The Court’s declaration that the Shura Council is invalid fuels tensions between both sides since it will not be dissolved until a new parliament is in place.

“The Shura Council is continuing to play its complete legislative role until the institutions of the state are completed and legislative power passes to the new parliament,” stated President Morsi’s agency.

Analysts have reported that Islamists would be angered at the rejection of the Council’s legitimacy and the opposition would be displeased with the fact that it was not dissolved.  Nathan Brown, an expert on Egypt and professor at George Washington University stated, “If the Shura Council still has legislative authority, then this is a moral blow but not a legal one.”

The Court’s decision comes about during a time of legal uncertainty that has occurred during a political transition in Egypt.  Previously, the Court ruled unconstitutional President Morsi’s provision to declare states of emergency during violent protests in the three Suez Canal cities.  Doubt was also casted over election polls called by President Morsi when last week the Court struck down parts of the revised parliamentary election law.

For more information, please see: 

Aljazeera – Egypt upper house election declared illegal – 3 June 2013

Globe and Mail – Egyptian court rules upper house of parliament illegal – 2 June 2013

Guardian – Egypt court rules both Islamist-dominated Senate and constitution illegal – 2 June 2013

Reuters – Egypt parliament ruled illegal, but to stay on – 2 June 2013

Russia Ignores Interpol’s Ruling and Re-Applies to Interpol for a Red Notice for William Browder to Block Magnitsky Justice Campaign

Press Release

5 June 2013 – Today, Russian authorities have announced they arere-applying to Interpol to seek a Red Notice to arrest William Browder in spite of the Interpol’s earlier decision rejecting Russian requests for him asillegitimate and politically motivated.

“The Russian authorities can’t seem to be able to take a hint, – said a Hermitage Capital representative. –  Officials in the Russian Interior Ministry are apparently more afraid of losing their jobs if they don’t act on Putin’s political order to persecute Mr Browder, than they are of losing any remaining credibility Russia has with international bodies.”

On 24 May 2013, Interpol’s Commission for the Control of Files, an independent body responsible for compliance with Interpol’s Constitution, considered Russian proceedings against William Browder and ruled that they were of “predominantly political nature.” The Interpol Commission recommended that all information in relation to Mr Browder should be deleted from Interpol systems (http://www.interpol.int/News-and-media/News-media-releases/2013/PR063).

On the same day, Interpol’s General Secretariat deleted all information in relation to Mr Browder and informed all member countries about its actions, and also made the information public (http://www.interpol.int/News-and-media/News-media-releases/2013/N20130528).

The Russian authorities, nevertheless, demonstrated complete defiance over Interpol’s decisions and rules.

On 25 May 2013, the day following the Interpol’s decision, the Russian Interior Ministry publicly stated that they will continue to seek Mr Browder’s arrest via Interpol upon completing various formalities with the Russian Prosecutor’s Office(http://ria.ru/incidents/20130525/939429919.html).

Today, it was announced that the Russian law enforcement authorities are going to Interpol again to request his arrest following the Russian Moscow City Court’s rejection of the appeal from Mr Browder’s lawyer who sought to recognise the in absentia arrest as unlawful and unjustified and breaching numerous legal provisions. (http://www.rapsinews.ru/moscourts_news/20130605/267674181.html). The Moscow court’s decision came a day after Alexander Bastrykin, head of the Russian Investigative Committee and Russia’s most senior law enforcement official, publicly stated his “solidarity” with the proceedings against Mr Browder organised by his colleagues in the Russian Interior Ministry (http://5-tv.ru/news/71223/).

William Browder is running a global campaign for justice for late Russian lawyer, Sergei Magnitsky, who was tortured and killed in Russian police custody after exposing the $230 million theft, the largest publicly known case of fraudulent tax refund perpetrated by Russian officials and organized criminals. The campaign culminated last December with the adoption of Sergei Magnitsky Rule of Law Accountability Act in the United States which imposes visa bans and asset freezes on Russian officials responsible for the ill-treatment and death of Mr Magnitsky and the conspiracy he uncovered. On 12 April 2013, the US Government published a list of 16 Russian officials involved in the Magnitsky case. On the same day, the Russian Interior Ministry initiated a request for an in absentia arrest of William Browder.

William Browder is currently advocating for the adoption of Magnitsky sanctions in the EU similar to those adopted in the US. The renewed attack on Mr Browder by Russian authorities is aiming to block his ability to campaign across Europe.

“If Russian authorities continue in their non-compliance with Interpol’s Constitution and abuse Interpol’s systems for the purpose of political persecution, their access to Interpol databases must be suspended under the Interpol rules,” said a Hermitage Capital representative.

For further information, please see:

Law and Order in Russia

Five Defendants in Russian Journalist’s Murder are Granted Jury Trial

by Tony Iozzo
Impunity Watch Reporter, Europe

MOSCOW, Russia – A preliminary hearing was held in the trial of five men accused in the murder of investigative journalist Anna Politkovskaya on Monday.

To date, only one individual has been convicted in what is believed to have been a conspiracy in the murder of Politkovskaya (above). (Photo Courtesy of BBC News)

The defendants were granted the right to a jury trial, as Russian law guarantees murder defendants the right to be tried by a jury, though most cases in Russia are decided by judges.

Anna Stavitskaya, the lawyer for Politkovskaya’s family, was pleased with the judge’s granting of a jury trial, stating, “From our point of view, a jury trial is the best option since it fully respects the adversarial principle between the sides.”

Politkovskaya, who was one of Russia’s most prominent investigative journalists, was shot to death in her apartment building on October 7, 2006. She had frequently criticized the Kremlin, and also accused the Russian military and pro-Moscow Chechen authorities of human rights abuses. At the time of her death, Politkovskaya worked for the newspaper Novaya Gazeta.

The case has caused an international stir and outraged human rights groups in Russia, and it has become a symbol of attempts to suffocate opposition of Vladimir Putin.

Russian leaders, including President Vladimir Putin and Chechen leader Ramzan Kadrov, have stated that the murder was an outrageous act of violence that struck at the freedom of speech and required a thorough investigation.

“In my opinion murdering such a person certainly does much greater damage from the authorities’ point of view, authorities that she strongly criticized, than her publications ever did,” President Putin stated.

The five accused, Lom-Ali Gaitukayev, his three nephews Rustam, Ibragim and Dzhabrail Makhmudov, and a former Moscow police officer Sergei Khadzhikurbanov, all participated in Monday’s hearing.

Ibragim and Dzhabrail Makhmudov and Khadzhikurbanov had already been acquitted of the murder in 2009, but that verdict was overturned by Russia’s supreme court.

Gaitukayev is believed to have organized the murder of Politkovskaya, while Rustam Makhmudov is believed to have been the actual gunman in the murder. The other two Makhmudov brothers are believed to have been accomplices to the murder.

Another former police officer, Dmitry Pavlyuchhenkov, was sentenced to eleven years in prison last year for supplying the murder weapon after pleading guilty to conspiring to commit the murder. Pavlyuchhenkov had implicated the current five defendants.

Currently, three of the defendants, Gaitukayev, Khadzhikurbanov, and Rustam Makhmudov, are being detained by Russian authorities, while Ibragim and Dzhabrail Makhmudov are restricted from traveling outside Russia.

The jurors are to be selected later this month on June 20th, with the first public hearing to be held shortly afterwards.

For more information, please see:

The St. Petersburg Times – Murder Suspects Demand Jury Trial – 5 June 2013

BBC News – Politkovskaya Murder: Defendants to have Jury Trial – 4 June 2013

Al Jazeera – Russia Murder Suspects Back on Trial – 3 June 2013

The Independent – Anna Politkovskaya Murder Trial is Rerun Six Years After Fatal Shooting of Anti-Corruption Journalist – 3 June 2013

Impunity Watch – Former Russian Policeman Sentenced for the Murder of Journalist – 24 December 2012

Nine North Koreans Returned to Pyongyang After Fleeing to Laos

By Brian Lanciault

Impunity Watch Reporter, Asia

PYONGYANG, North Korea– Nine North Korean youths, ages 14 to 23, were returned to Pyongyang earlier this week after being arrested in Laos and deported through Beijing, China.  Both the Chinese and Lao governments have come under criticism from the UNHCR, the United Nations organ responsible for refugee matters.

Protesters rally outside the Lao embassy in Seoul demanding the Lao government ensure the safety of the nine individuals returned to North Korea. (Photo Courtesy of AP)

The nine individuals fled North Korea in early May and entered Laos through China on May 9.  On May 16, Lao authorities captured the group and arranged their deportation to Beijing.  On Tuesday May 28 the group was flown back to Pyongyang under the supervision of several North Korean officials.

U.N. human rights spokesman Rupert Colville stated that the group will likely face severe punishment upon their return.  North Korean law imposes a mandatory sentence of five years hard labor for defectors and the possibility of life imprisonment.  According to Human Rights Watch, North Korea has a history of mistreating persons that have left the country without authorization.  Such mistreatment has reportedly included forced labor, indeterminate detention, torture, malnourishment, and unsanitary living conditions.  Particularly harsh punishments are utilized against those suspected of attempting to contact or enter South Korea.

The U.N. admonished the DPRK Friday for failing to observe its obligations under the International Covenant on Civil and Political Rights article 7, which states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

The potential for severe punishment and/or mistreatment at the hands of the DPRK also places the nine individuals within the protective sphere of the 1951 Convention Relating to the Status of Refugees, its 1967 Protocol, and the 1984 Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment.  The 1951 Convention defines “refugee” as a person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…”  The United Nations High Commissioner for Refugees Handbook establishes that persecution that arises as a result of, or after, fleeing one’s country is also within the scope of the Convention’s protection.

The UNHCR has stated that both China and Laos’ actions are violations of  the aforementioned conventions, and also the customary international law principle of non-refoulement, which prohibits the return (refouler) or extradition of any person to a State where there are substantial grounds to believe that she would be in danger of being subjected to torture.

The exact condition and status of these nine individuals is unknown at this time, and North Korea has thus far failed to answer U.N. requests to investigate and/or receive independent reports on the status of the group.  The UNHCR continues to investigate and has expressed concern that in both China and Laos the group was denied an opportunity to lodge claims for asylum.

For further information, please see:

Human Rights Watch — North Korea: Denial of Rights Forces Back Refugees — 30 May 2013

BBC — UN ‘dismayed’ Over North Korea Refugees — 31 May 2013

Reuters — U.N. Fears Nine North Korean Defectors Sent Home by China — 31 May 2013

Bangkok Post — UN Protests Return of North Koreans — 1 June 2013