{"id":45,"date":"2022-01-24T12:00:31","date_gmt":"2022-01-24T17:00:31","guid":{"rendered":"https:\/\/impetusmonitors.org\/?p=45"},"modified":"2022-02-11T16:18:43","modified_gmt":"2022-02-11T21:18:43","slug":"statement-report-on-us-v-donziger-released-by-international-monitoring-group","status":"publish","type":"post","link":"https:\/\/impetusmonitors.org\/?p=45","title":{"rendered":"US v. Donziger: International monitors find criminal contempt proceedings violated US international law obligations | Statement"},"content":{"rendered":"

IMPETUS Statement (full pdf)<\/a><\/p>\n

\n

Donziger Criminal Contempt Proceedings Violated US International Human Rights Obligations<\/strong><\/p>\n

\u00a0Statement issued by IMPETUS<\/strong><\/p>\n

\u00a024 January 2022<\/strong><\/p>\n

An international group of legal scholars and practitioners, International Monitoring Panels to Evaluate Trials in the United States (IMPETUS), has released a 55-page report<\/u><\/a> of their findings of US Federal Court criminal contempt proceedings against New York lawyer Steven Donziger in the Southern Division of New York (SDNY).<\/p>\n

The IMPETUS panel found that Mr. Donziger was denied a fair trial, resulting in more than two years of confinement \u2013 several times longer than the available prison sentence in the case. Mr. Donziger was released by prison authorities on 10 December 2021 due to COVID-19 concerns, but he remains in home confinement to serve the rest of a six month sentence handed down on 2 October 2021.<\/p>\n

The IMPETUS panel monitored pre-trial and trial proceedings against Donziger for more than 18 months, comparing the process and results with United States (US) international law obligations.<\/p>\n

Background<\/strong><\/p>\n

The case arose from Donziger\u2019s representation of Ecuadorian clients in a case against Chevron that has spanned decades. In 2013, Ecuador\u2019s Supreme Court upheld a 2011 lower court judgement against Chevron awarding US$9.5 billion for clean-up costs related to pollution of the environment and communities in the Ecuadorian Amazon by Chevron\u2019s predecessor company, Texaco.<\/p>\n

In 2014, Judge Lewis A. Kaplan of the US Federal Court\u2019s Southern Division of New York (SDNY) found in favour of Chevron that the Ecuadorian judgement violated the Racketeer Influenced and Corrupt Organizations Act (RICO). The criminal contempt case against Donziger arose out of the enforcement phase of the civil RICO case, over which Judge Kaplan still presides.<\/p>\n

On 30 July 2019, Judge Kaplan charged Mr. Donziger with six counts of criminal contempt after civil contempt rulings had failed to secure Mr. Donziger\u2019s compliance with post-judgment discovery orders in the RICO matter. Included were discovery orders that Donziger provide documents that Mr. Donziger argued were subject to lawyer-client privilege.<\/p>\n

After New York federal prosecutors declined to prosecute Mr. Donziger, citing lack of resources, Judge Kaplan appointed the private law firm of Seward & Kissel LLP to prosecute the charges and appointed Judge Loretta A. Preska to preside over the criminal contempt case.<\/p>\n

The IMPETUS panel\u2019s \u201cunequivocal assessment of the criminal contempt proceedings against Steven Donziger is that he has been subject to multiple violations of his internationally protected human rights, including his right to a fair trial by an independent and impartial tribunal and his right to the presumption of innocence.\u201d<\/p>\n

Major findings<\/strong><\/p>\n

Appearance of judicial bias <\/strong><\/p>\n

The IMPETUS panel found that an appearance of bias in the appointment of the judge and prosecutor by Federal Court Judge Lewis A. Kaplan resulted from a \u201cconfluence of multiple roles taken by Judge Kaplan.\u201d The IMPETUS report notes that Judge Kaplan \u201cpresided over all the underlying litigation, laid the criminal contempt charges, appointed the special prosecutor, appointed Judge Preska to hear the charges, and retains conduct over enforcement proceedings in the underlying RICO case.\u201d<\/p>\n

\u201cThere has been no appearance of independence and impartiality in the process of appointments of the special prosecutor and the judge, in violation of international law and related standards,\u201d said the report.<\/p>\n

The Panel found that the appearance of bias resulting from Judge Kaplan\u2019s appointment of the judge and prosecutor \u201cmight have been ameliorated or allayed by the exercise of strict judicial impartiality on the part of Judge Preska from the outset of her involvement in the case.\u201d The IMPETUS monitors found that \u201cJudge Preska, too, demonstrated an appearance of bias\u201d giving \u201clatitude and deference to the prosecutor without equally ensuring full and respectful attention to defence counsel\u2019s submissions and cross-examination.\u201d<\/p>\n

Inequality<\/strong><\/p>\n

The panel also found a marked level of inequality in the case. Since the charges were laid in 2019, Mr. Donziger has relied on a series of pro bono lawyers, stating that his resources have been exhausted by Chevron\u2019s civil litigation to resist the Ecuador court ruling. In contrast, the IMPETUS monitors noted \u201can extraordinarily high level of resources available to the special prosecutors\u201d including hundreds of thousands of dollars in fees and hundreds of hours of time preparing for the trial with Chevron lawyers.<\/p>\n

According to IMPETUS, the behaviour of the special prosecutors during the criminal contempt proceedings has been \u201cmore in keeping with the zealousness of partisan counsel against Mr. Donziger than that of an impartial, disinterested prosecutor as required by international and national standards.\u201d \u00a0The Panel expressed concerned about \u201can appearance that no transparent procedural safeguards were implemented to ensure a fair prosecution…\u201d<\/p>\n

Denial of the presumption of innocence leading to prolonged arbitrary detention<\/strong><\/p>\n

The Panel also concluded that the pre-trial home confinement of Mr. Donziger was based on \u201con unfounded speculation about possible flight risk\u201d that had \u201clittle or no basis in evidence.\u201d<\/p>\n

Judge Preska failed to recognize that the prosecutor \u201chad the onus to prove flight risk on the preponderance of evidence and that at international and national law, restrictions on liberty must be the least restrictive means possible to assure attendance at trial,\u201d said the report.<\/p>\n

\u201cMr. Donziger\u2019s pre-trial home confinement for 25 months on charges attracting a maximum six-month sentence was unreasonable,\u201d says the report, adding that the lengthy period of home confinement \u201cdid not serve the purpose of prevention of flight; rather it appears to have been punitive in nature and purpose.\u201d<\/p>\n

The IMPETUS group\u2019s recommendations<\/u><\/a> include the immediate and unconditional release of Donziger and a review of laws that can be applied arbitrarily to \u201cside-step or violate fundamental norms and principles of international human rights law and standards related to the administration of justice, including independence and impartiality of judges and prosecutors and fair trial principles.\u201d<\/p>\n

Full findings and further information<\/strong><\/p>\n

Full findings and recommendations are available in the report<\/u><\/a>. While the report speaks for itself, IMPETUS co-chairs, Stephen Rapp or Catherine Morris can be reached at impetusmonitors@gmail.com<\/u> to schedule a call for further information or comment.<\/p>\n

Read more about IMPETUS in the report<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

IMPETUS Statement (full pdf) Donziger Criminal Contempt Proceedings Violated US International Human Rights Obligations \u00a0Statement issued by IMPETUS \u00a024 January 2022 An international group of legal scholars and practitioners, International Monitoring Panels to Evaluate Trials in the United States (IMPETUS), has released a 55-page report of their findings of US Federal Court criminal contempt proceedings… <\/p>\n

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