U.S. District Court:  Peterson v. Iran (D.D.C. Sept. 7, 2007)

Click here for document. (Approximately 43 pages).

The U.S. District Court for the District of Columbia (court) ordered Iran to pay a record $2.6 billion in compensatory damages to 26 survivors, almost one thousand family members, and representatives of the estates of the 241 U.S. Marines killed in the bombing of their barracks in Beirut, Lebanon in 1983.  The court refused to order punitive damages however, under Haim v. Islamic Republic of Iran, 425 F. Supp. 2d 56, 71 (D.D.C. Mar. 24, 2006); punitive damages are not available against foreign states or government entities.

The plaintiffs, family members and representatives of the estates of the marines who were killed in the bombing, brought suit pursuant to inter alia the Foreign Sovereign Immunities Act (FSIA) 28 U.S.C. §1605(a)(7) against Iran and the Iranian Ministry of Information and Security (MOIS)(defendants).  They alleged that the defendants provided material support to Hezbollah, the organization that bombed the barracks.  In 2003, the court held that the defendants were guilty of providing material financial and logistical support to Hezbollah, and that family members suffered mental anguish and loss of society because of their relatives’ deaths.  It ordered special masters to make findings regarding the compensatory and punitive damages for each plaintiff.  (Peterson v. Islamic Republic of Iran, 264 F.Supp 2d 46, 61 (D.D.C. 2003)).  In its September 7, 2007 order, the court reviewed the determinations of the special masters de novo. 

Before deciding the appropriate amount of damages to award to the plaintiffs, the court first examined whether the plaintiffs asserted valid claims under the state law in which they were domiciled at the time of the bombing.  The plaintiffs brought three types of claims:  1) wrongful death; 2) battery; and 3) intentional infliction of emotional distress (IIED). 

After examining the laws of the states were the Marines were domiciled before the attack and finding that the state wrongful death and battery statutes would allow the plaintiffs’ claims, the court allowed plaintiffs to recover compensatory damages in both areas. 

The court used a three-prong approach in its analysis of the IIED claims.  It first examined whether the state law in which the plaintiff was domiciled permitted such claims.  Second, it analyzed how states treat attacks to family members and whether the physical presence of the third party family members at the bombing was necessary.  Third, it reviewed which family members had standing to bring such suits.  While all of the 35 states in which the 753 plaintiffs asserting the IIED claim permitted such suits, states differed whether they required family members to be present at the time the harm occurred.  The court permitted the majority of the plaintiffs’ claims to proceed under the rationale of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229, 305 (D.D.C. Dec. 22, 2006), that because a terrorist attack targets not only the victim but also his family, the court would not require the physical presence of the family member.  Two states however, Louisiana and Pennsylvania, have required the third party to be present when the harm occurs to be able to recover damages.  The court therefore held that plaintiffs domiciled in those states lack standing to bring IIED claims.

U.S. District Court:  United States v. Noriega, Order Dismissing Defendant’s Petition for Writ of Habeas Corpus and Lifting Stay of Extradition (S.D. Fla. Sept. 7, 2007)

Click here for document.  (Approximately 6 pages).

Senior U.S. District Court Judge William M. Hoeveler denied former General Manuel Noriega’s petition for a writ of habeas corpus and lifted the partial emergency stay to extradition that he imposed September 5, 2007.  Judge Hoeveler imposed the stay to allow Noriega to present evidence to support his allegation that France will not follow the rules of the Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (Convention) after it obtains his extradition to stand trial for alleged money laundering activities, and for the U.S. government to respond to that allegation. 

The U.S. District Court for the Southern District of Florida determined that Noriega was a prisoner of war (POW) pursuant to the Convention in 1992 (see United States v. Noriega, 808 F. Supp. 791, 803 (S.C. Fla. 1992)).  Article 12 of the Convention permits the detaining power to transfer POWs to another party to the Convention after satisfying itself that the nation to which the POW is transferred is willing and able to apply the Convention.  The U.S. presented information to the court that France plans to provide Noriega with the rights due him as a POW under the Convention.

European Court of Human Rights Grand Chamber:  J.A. Pye (Oxford) Ltd  & J.A. Pye (Oxford) Land Ltd.v. The United Kingdom (30 August 2007)

Click here for document.  (Approximately 25 pages including dissent).

The European Court of Human Rights (ECtHR) sitting in Grand Chamber held by a vote of ten to seven that there had been no violation of Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights (Convention) for the applicant companies when a neighbor acquired its land through adverse possession.

J.A. Pye (Oxford) Ltd. owned 23 hectares of agricultural land in Berkshire, U.K. until 1986 when it transferred the land to J.A. Pye (Oxford) Land Ltd.  Mr. and Mrs. Graham owned property bordering the company’s land, and by agreement, were permitted to use it as grazing land until December 31, 1983.  The company informed the Grahams December 30, 1983 that the grazing agreement was about to expire and they should vacate the land.  Nevertheless, the Grahams continued to use the land without permission until 1999.  In 1997 Mr. Graham registered “cautions” against the company’s title to the land, claiming that he had acquired title to it through adverse possession.  The company sought to cancel the cautions in the High Court April 30, 1998.    

In response, the Grahams argued that two U.K. laws entitled them to ownership of the land: 1) the 1980 Limitation Act (1980 Act) which prohibited a suit from being brought to recover land after another party has owned it through adverse possession for twelve years; and 2) the Land Registration Act of 1925 which provided that at the end of the twelve year period, the registered owner was deemed to hold the land in trust for the adverse possessor. 

The High Court determined February 4, 2000 that the Grahams took possession of the land through adverse possession beginning in September 1984 and the 1980 Act extinguished the company’s title.  The company appealed and the Court of Appeals reversed, holding that the Grahams lacked the intent to possess the land.  The Grahams subsequently appealed to the House of Lords which restored the order of the High Court. 

The companies applied to the ECHR against the United Kingdom December 17, 2002 claiming that the U.K. law on adverse possession violated their rights pursuant to Article 1 Protocol 1 of the Convention.  The Court declared their application inadmissible June 8, 2004.  Subsequently however, a section of the Court held November 15, 2006 by a vote of four to three that there had been a violation of the Protocol.  The United Kingdom then requested that the case be referred to the Grand Chamber, and the court granted that request April 12, 2006.

Pursuant to Article 1 of Protocol 1 all natural and legal persons have the right to peaceful enjoyment of their possessions.  Such rights may only be infringed in the public interest and under general principles of international law.  States are nevertheless permitted to enforce laws to control property.

The U.K. argued that the Grahams, as private parties, and not the state, were the source of the disruption of the applicants’ enjoyment of the land, and consequently the obligations of the U.K. under Article 1 of Protocol 1 had not been triggered.  The ECHR did not concur because the U.K. legislation took governed the actions of private parties.  In its reasoning, the ECHR examined whether a fair balance had been struck between the interests of the general public and those of the individuals involved.  It noted that in sectors such as housing, it will respect legislature’s decision as to the general interest of the public unless such conclusions are “manifestly without reasonable foundation.”  Finding that the U.K. laws struck a fair balance, the ECHR held that there was no violation of Article 1 of Protocol 1.

International Tribunal for the Law of the Sea:  The “Tomimaru” Case (Japan v. Russian Federation) (6 August 2007)

Click here for document. (Approximately 30 pages).

In a unanimous judgment, the International Tribunal for the Law of the Sea (ITLOS) held that Japan’s application under Article 292 of the of the United Nations Convention on the Law of the Sea (Convention) was without object and it therefore did not have to render a decision on it because Russian domestic courts had already concluded their proceedings regarding the confiscation of the Tomimaru, a Japanese fishing vessel.

The Tomimaru obtained a Russian license to fish for 1,163 tons of walleye and 18 tons of herring in an exclusive economic zone (EEZ) from October 1, to December 31, 2006.  On October 31, 2006 it was fishing in this area when Russian inspectors boarded it and discovered that the Tomimaru contained 20 tons of walleye and over 31 tons of other types of fish not included in the license.  A Russian prosecutor began a criminal case against the Master of the Tomimaru November 8, 2006 for illegal exploitation of an EEZ and damaging a marine environment.  Russia detained the Tomimaru and confiscated the illegal fish. 

Russia also began administrative proceedings against Kanai Gyogo, Co., (Kanai) the corporate owner of the Tomimaru November 14, 2006 for violating the terms and conditions of a fishing license.  On December 28, 2006 the Petropavlovsk-Kamchatskii city court held that Kanai had indeed violated the terms of its fishing license.  The court ordered the Tomimaru to be confiscated and the owner to pay a fine.  Kanai appealed this decision to the Kamchatka District Court which confirmed this decision January 24, 2007.  The owner next sought review in the Supreme Court of the Russian Federation. 

The Russian Federal Agency on Management seized the Tomimaru and listed it in the Federal Property Registry as belonging to the State of Russia April 9, 2007.  Subsequently, the Petropavlovsk-Kamchatskii City Court levied a fine of 500,000 rubles (or about US $19,600) and awarded damages of 9,000,000 rubles against the Master.  While the Master paid the fine he refused to pay the damages.  Russia nevertheless permitted him to return to Japan May 30, 2007.  The Russian Supreme Court dismissed the complaint July 26, 2007 because of lack of grounds for review of the decision below it.

Both Japan and Russia are states parties to the Convention.  Japan applied to the ITLOS against the Russian Federation pursuant to Article 292 of the Convention July 6, 2007. Japan alleged that Russia violated Article 73(2) regarding the prompt release of arrested vessels after posting of a bond or other security.  Japan asked the tribunal to order Russia to release the Tomimaru.  Russia contended that its confiscation of the Tomimaru rendered Japan’s application without object and that the tribunal lacked competence to hear Japan’s application because Russian domestic courts had already considered the issue, rendered a decision, and that decision had been executed.  The tribunal concurred with Russia. 

Relying upon its decision in Monte Confurco¸ the tribunal reasoned that Article 73 of the Convention requires a balancing of the interests of the coastal state regarding compliance with its laws with those of the flag vessel state in obtaining timely release of its vessels and crews upon the posting of a bond or other security.  In holding Japan’s application without merit the tribunal opined that a decision to confiscate a vessel does not prevent ITLOS from reviewing an application while domestic proceedings are still pending in the detaining state.  Here however, if it decided to release the Tomimaru pursuant to Article 292 of the Convention, it would contradict the Russian domestic court’s decisions; and impinge upon national competencies, in violation of Article 292, paragraph 3 of the Convention.  This section requires ITLOS to handle an application for release without delay and address only the issue of release without “prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew.”

High Court of Australia:  Thomas v. Mowbray (2 August 2007)

Click here for document.  (Majority approximately 35 pages.  Dissent approximately 70 pages).

In a 5 to 2 decision, the High Court of Australia upheld the Constitutionality of a criminal anti-terrorism law under which a Federal Magistrate issued an interim control order (ICO) against Joseph Terrence Thomas, an al Qa’ida trainee.

Thomas participated in paramilitary training at an Al Qa’ida training camp in Afghanistan in 2001.  Officials arrested him in Pakistan in 2003, and charged him with terrorism and passport offenses in 2004.  The Australian Victorian Supreme Court subsequently convicted him of intentionally receiving funds from a terrorist group and owning a false passport.  The Victorian Court of Appeals set aside the conviction in August 2006 and ordered a retrial.  Before the retrial could be heard, the Australian Federal Police with the consent of the Attorney General, filed for an ICO under Division 104 of the Criminal Code Act.  Graham Mowbray, an Australian Federal Magistrate, issued the ICO against Thomas August 27, 2006 to protect the public and “substantially assist in preventing a terrorist act.” 

The order placed a number of restrictions on Thomas including prohibiting him from manufacturing explosives; leaving Australia without notifying officials; or communicating with prohibited parties.  Thomas moved to quash the ICO alleging that Division 104 of the Criminal Code under which it was authorized was unconstitutional on three grounds: 1) it gave non-judicial power to a federal court; 2) it was incongruous with Chapter III of the Constitution; and 3) neither express nor implied legislative power supported it.  

In the court’s decision to uphold the constitutionality of the law it noted that the judiciary exercises powers similar to those in Division 104 to restrict an individual’s liberty through for example, bail and “apprehended violence” (protective) orders.  Thus, such power is not within the exclusive realm of the legislature.  Moreover, the court held that the defense power of Australia provides legislative support for Division 104 and this power includes protecting the public from terrorism.

The dissent opined that Division 104 is unconstitutional because it lacks an “established source” in federal constitutional power and impugns the Chapter III mandates of the Australian Constitution regarding the power of the judiciary.   The dissent was unconvinced that the defense power of the Australian Constitution provided a sufficient basis for Division 104; and stated that this expansive interpretation of the defense power should be rejected.  The dissent also emphasized that it was troubled by the “one-sided” nature of the information presented to Federal Magistrate Mowbray at the ICO proceeding against Thomas.

European Court of Human Rights Grand Chamber:  Asan and Others v. Turkey (31 July 2007)

Click here for document.  (Approximately 23 pages)

The European court of Human Rights (ECHR) held July 31, 2007 that Turkey violated Article 3 (torture), Article 13 (effective remedy), and Article 5 (liberty and security) of the European Human Rights Convention (Convention) when Turkish police detained and tortured Turkish nationals suspected of aiding and abetting a terrorist organization.  The court held that it lacked evidence to determine whether Turkey violated Article 14 (prohibition of discrimination).  The court awarded each of the twelve applicants non-pecuniary damages ranging from 5,500 Euros to 12,700 Euros, with the higher sums awarded to the five men the court found that police had tortured.

Police arrested ten Turkish nationals September 13, 1999 on suspicion of aiding and abetting the Kurdistan Workers’ Party (the PKK), an illegal terrorist organization.  On September 17, 1999 the Public Prosecutor requested the Magistrates’ Court to authorize the continued detention of the men for seven days.  Police arrested two other Turkish men September 18, 1999 for aiding and abetting the PKK and drug possession.  The Beytussebab Health Centre examined the men September 22, 1999 and reported that five, Zeki Aslan, Ubeyt Yaca, Sahbaz Aslan, Suleyman Aslan, and Zeki Asan, had sore arms, backs, and/or lesions on their arms.  At a hearing before the public prosecutor September 22, 1999, the men alleged that police had tortured them. 

The men applied to the ECHR December 21, 1999 alleging that police tortured them in violation of their Convention rights pursuant to Articles 3, 5, 13, and 14.  The Diyarbakir State Security Court heard their case December 22, 1999.  They alleged that while they were in custody, police beat them, hung them by their arms, subjected them to electric shocks, hosed them with water, and inserted foreign objects into their anuses.  The Diyarbakir Assize Court acquitted them of all charges April 10, 2007.  Turkey requested the ECHR to dismiss the applications for failure to exhaust domestic remedies.  The court dismissed Turkey’s argument, noting that it had already examined and disposed of Turkey’s argument in Karayigit v. Turkey (5 October 2004).

The ECHR noted that where representatives of a state detain an applicant in good health and release him injured, the state bears the burden of offering a reasonable explanation for the cause of the injuries.  It found that the September 22, 1999 medical reports were consistent with the applicants’ contentions that police tortured them.  Because Turkey did not offer an explanation for those injuries, the ECHR found a violation of Article 3 for five of the applicants. 

The court did not find a violation of Article 3 for the others because the September 22, 1999 medical reports did not show signs of scars or bruises on their bodies.  Because Turkey failed to investigate any of the applicants’ claims that they had been tortured, the ECHR found a violation of Article 13 for all of the applicants.

The applicants contended that Turkey violated Article 5 (liberty and security).  The ECHR admitted the applicant’s claims pursuant to Article 5§§3, 4, 5.  It found a violation of the length of applicants’ detention without prompt legal review pursuant to Article 5§3 because Turkish authorities violated the four day six hour limit that the ECHR set in Brogan and Others v. The United Kingdom, (29 November 1988).  The court found a violation of Article 5§4 (lack of an effective domestic remedy) as it had in Ocalan v. Turkey, (2005).  The court found that applicants were entitled to compensation pursuant to Article 5§5 for the other violations of the subsections of Article 5 because domestic law permitted the length of detention in custody without legal review.

The court held that it lacked sufficient evidence to find that Turkey discriminated against the applicants pursuant to Article 14 of the Convention because of their Turkish origin.

The synopses are from Susan A. Notar, Managing Editor, International Legal Materials.