International Law In Brief
September 14 - 25, 1998
Developments in international law, prepared by the
Attorney-Editors of
International Legal Materials
The American Society of International Law
International Law In Brief is now archived on the ASIL Web site: ilibindx.htm The ASIL web site now features ASILEX, a searchable database of ASIL publications including the American Journal of International Law and International Legal Materials from 1990 forward. asilex.htm
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
OAS Resolution on Year 2000 Conversion Problem
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 File http://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
To comment on this publication, send an e.mail message to David A. Levy, Interim Editor at
david.levy@his.com
For membership information, visit us on the Internet
http://asil.org