Opinion; Subjects: UNITED STATES, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.21-13957(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-first session, 6–10 September 2021
Opinion No. 24/2021 concerning Steven Donziger (United States of
America)*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 42/22.
2.
In accordance with its methods of work,1 on 3 February 2021, the Working Group
transmitted to the Government of the United States of America a communication concerning
Steven Donziger. The Government has not replied to the communication. The State is a party
to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
* In accordance with paragraph 5 of the Working Group’s methods of work, Miriam Estrada-Castillo
did not participate in the discussion of the present case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/24
General Assembly
Distr.: General
30 September 2021
Original: English
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2
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
Submissions
Communication from the source
a.
Context
4.
Steven Donziger is a national of the United States, born in 1961. He is a lawyer,
usually residing in New York City. Mr. Donziger has been under pretrial house arrest since
6 August 2019, under charges of contempt of court.
5.
According to the information received, in February 2011, a court in Ecuador found
Chevron Corporation liable for causing serious environmental and health damage to the
Amazon rainforest and the communities who lived in that region between 1964 and 1992.
Among other findings, the court determined that Chevron Corporation had deliberately
discharged billions of gallons of oil waste over a period of decades onto indigenous ancestral
lands as a cost-saving measure.
6.
Chevron Corporation was reportedly ordered to pay $19 billion to remediate the
damage, later reduced to $9.4 billion on appeal. The judgment against the Corporation has
been confirmed on the merits, or for enforcement purposes, by the Supreme Court of Ecuador,
as well as by the Supreme Court of Canada.
7.
The source states that, to avoid paying the damages, Chevron Corporation moved its
assets out of the country during the trial, leading the plaintiffs to seek enforcement actions in
other countries. Corporation officials reportedly threatened the claimants with “a lifetime of
litigation” unless they dropped their case and promised that the Corporation would “fight
until hell freezes over and then fight it out on the ice”.
8.
It is reported that, days before the trial decision of the Ecuadorian court in February
2011, Chevron Corporation filed a lawsuit in the United States District Court for the Southern
District of New York, under the Racketeer Influenced and Corrupt Organizations Act, against
all plaintiffs named in the lawsuit lodged in Ecuador, all their lawyers, including Mr.
Donziger, the main non-governmental organization representing the communities and a
number of experts. The Corporation accused them of winning the case by using fraudulent
and corrupt means.
9.
Chevron Corporation allegedly used administrative procedures available in United
States federal courts to direct the racketeering case to a judge who had presided over related
document discovery litigation. According to the source, in the course of that litigation, Judge
K did not “disguise his disdain” for Mr. Donziger and suggested from the bench that the suit
against the Corporation was “nothing more than a cynical con”. Judge K also seemed to
indicate to the Corporation’s attorneys that he would be supportive of a racketeering lawsuit
against Mr. Donziger, were they to file one.
10.
According to the source, Chevron Corporation initially brought claims against Mr.
Donziger for roughly $60 billion in damages. Those claims granted Mr. Donziger the right
to a jury trial. However, two weeks before the trial was scheduled to begin, the Corporation
dropped its claims for fiscal damages, removing the legal basis for a jury. Consequently, the
fact-finding decision was left to the sole discretion of Judge K.
11.
It is reported that, during the trial, Judge K denied the defendants the opportunity to
present scientific evidence of Chevron Corporation’s alleged pollution and corrupt activities
in Ecuador, including the results of tests run on 64,000 chemical samples. Judge K also
refused to examine or consider the evidence used by Ecuador’s courts to reach the verdict.
However, he allowed the Corporation to present “secret” and anonymous witnesses who
could not be effectively cross-examined due to purported security threats. In addition, Judge
K allowed the Corporation to present a witness who conceded that it was paying him a
monthly “stipend” of a sum of 20 times his former salary.
12.
In 2014, Judge K ruled that Mr. Donziger had committed or participated in acts that
fell within the definition of “racketeering activity”, including “extortive” efforts to pressure
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Chevron Corporation through “celebrity advocacy”, government lobbying, a disinvestment
campaign and a media strategy driven by non-governmental organizations. Judge K enjoined
enforcement of the Ecuadorian judgment in the United States and pre-emptively seized any
“profit” that Mr. Donziger might personally earn as a lawyer from any enforcement of the
judgment. Judge K ordered that Mr. Donziger transfer to the Corporation all property that he
had or might later obtain that could be traced to the Ecuadorian judgment.
13.
According to the information received, in 2018, shortly after a success in the
enforcement process in Canada, including a decision of the Supreme Court of Canada that
was favourable to Mr. Donziger’s clients, Chevron Corporation initiated a post-judgment
discovery and civil contempt of court litigation before Judge K. The contempt litigation was
based on the allegation that funds that Mr. Donziger had raised from donors or third-party
investors to support the enforcement process, and had paid to lawyers as legal fees or for
expenses, should be considered as “profit” on enforcement of the judgment, even prior to a
collection on the judgment. The Corporation also used the discovery process to demand
confidential information identifying all of Mr. Donziger’s assets and those of his spouse to
determine whether he had complied with an $800,000 costs order that was imposed after the
racketeering trial, which remains under appeal. Mr. Donziger was required by the judge to
turn over all of his electronic devices and passwords to all his online accounts to a forensic
expert, for ultimate review by the Corporation.
14.
Mr. Donziger submitted a letter to Judge K explaining that he would be unable to
comply with the orders, given that to do so would give Chevron Corporation access to
confidential, privileged and protected documents, and Mr. Donziger requested the court’s
permission to go into voluntary contempt, in order to obtain appellate review. He explained
that his ethical obligations towards his clients prevented him from turning over the devices,
given that the order appeared to violate multiple legal protections under United States and
international law and would put the lives of his clients in danger. Mr. Donziger also
repeatedly assured the court that he would fully comply with all discovery demands if unable
to obtain relief on appeal.
15.
On 23 May 2019, Judge K reportedly held Mr. Donziger in civil contempt of court for
his refusal to comply with the protocol and for several other acts of non-compliance,
including failing to transfer quickly enough his right, title and interest to Ecuadorian case
fees, which he reportedly did transfer, and separately for failing to transfer to Chevron
Corporation funds provided from third-party investors who had been financing the litigation
for the affected communities.
16.
Mr. Donziger reportedly exercised his right to appeal that decision by voluntarily
going into civil contempt of court, rather than surrender his devices and accounts to the
forensic experts. Judge K then drafted criminal contempt charges against Mr. Donziger.
Judge K referred the case to the Office of the United States Attorney for the Southern District
of New York, which declined to pursue prosecution. Judge K took the allegedly unusual and
extraordinary decision to appoint a private law firm, which later admitted to a conflict of
interest, given that Chevron Corporation had been a client of the firm in 2018, to prosecute
Mr. Donziger in the criminal contempt of court case.
17.
The source claims that Judge K also selected a senior district judge, Judge P, to preside
over the criminal case, allegedly bypassing rule 16 of the Rules for the Division of Business
Among District Judges, Southern District, of the Local Rules of the United States District
Courts for the Southern and Eastern Districts of New York, which states that “the assignment
committee shall transfer the case by lot”.
b.
Detention
18.
It is reported that, on 6 August 2019, Judge P ordered Mr. Donziger to surrender his
passport, wear a GPS tracking device around his ankle and be placed in home confinement.
Judge P justified the pretrial house arrest on the grounds of Mr. Donziger being a flight risk,
specifically that he had previously defied unspecified “court orders” and had a history of
travel to Ecuador.
19.
From September 2019 to January 2020, Mr. Donziger repeatedly requested
reconsideration of that ruling, arguing that, among other things: (a) his appeal of the court
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order was transparent and pursuant to a legitimate appellate strategy; (b) he had complied
with hundreds of court orders throughout the process of the racketeering case, including the
order that he submit to an unprecedented total of 19 days of pretrial depositions under oath;
(c) his travel to Ecuador was a key part of his human rights work and his work in
representation of his clients; (d) he had voluntarily returned from international travel to face
the criminal contempt of court charges; and (e) it was implausible to claim that he would
abandon his wife, young son and life in the United States and submit himself to felony
abscondment charges and a life as an international fugitive to avoid the misdemeanour
charges. In December 2019, the court refused to reconsider its detention parameters. Mr.
Donziger filed and argued an appeal of the pretrial detention, which was rejected in a one-
sentence order on 18 February 2020.
20.
Mr. Donziger had been detained at home for over 500 days, as at the time of
submission of the source’s communication, even though the longest sentence possible if he
were to be convicted is six months’ imprisonment, and the longest sentence actually imposed
for similar charges is three months’ home detention. On 18 May 2020, Judge P reportedly
denied Mr. Donziger’s demand for a jury trial on the basis that the possible punishment did
not exceed six-months’ incarceration or a $5,000 fine.
21.
According to the source, the trial has been repeatedly postponed due to health and
safety issues relating to the coronavirus disease (COVID-19) pandemic.
c.
Legal analysis
22.
The source claims that international norms relating to the right to a fair trial have been
violated. In that context, the source argues that “detention” comprises all forms of deprivation
of liberty, including house arrest, when it is carried out in close premises where the person is
not allowed to leave. Mr. Donziger has allegedly been under pretrial house arrest, unable to
leave his apartment for more than two years. In addition, an arrest or detention authorized by
domestic law could be nonetheless arbitrary, considering elements of injustice,
reasonableness, necessity, proportionality, lack of predictability and due process.
i.
Apparent lack of impartiality on the part of the judge during the racketeering trial
23.
The source stresses that, to guarantee the right to a fair trial, and therefore prevent
arbitrary detention, the independence and impartiality of courts is essential. The obligation
of impartiality demands that each of the decision-makers be unbiased and be seen to be
unbiased. Actual impartiality and the appearance of impartiality are both fundamental.
24.
The source recalls that judges must not allow their discernment to be influenced by
personal bias or prejudice. The source also recalls that the Human Rights Committee
established, in Karttunen v. Finland,2 that “impartiality” of the court implied that judges must
not harbour preconceptions about the matter put before them, and that they must not act in
ways that promoted the interests of one of the parties. The actions of the judge must appear
to be impartial to a reasonable observer. Judges must not only be impartial, but they must
also be seen to be impartial.
25.
The source claims that there have been concerns about the perceived bias of Judge K,
who made public his personal opinion of Mr. Donziger’s character before the racketeering
lawsuit was filed. In September 2010, Judge K reportedly stated that Mr. Donziger was
“trying to become the next big thing in fixing the balance of payments deficit. I got it from
the beginning … The object of the whole game, according to Donziger, is to make this so
uncomfortable and so unpleasant for Chevron that they’ll write a check and be done with
it … to persuade Chevron to come up with some money.” He asked: “now, do the phrases
Hobbs Act, extortion, [and] RICO, have any bearing here?”3 Four months later, Chevron
Corporation filed its racketeering complaint.
2 Human Rights Committee, Karttunen v. Finland, communication No. 387/1989, para. 7.2.
3 See
https://ia803409.us.archive.org/7/items/gov.uscourts.nysd.520592/gov.uscourts.nysd.520592.60.0.pdf.
See also https://www.huffpost.com/entry/will-the-supreme-court-strike-down-chevrons-
facially_b_591b155de4b03e1c81b00903.
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26.
In addition, Judge K reportedly also made remarks about the villagers in Ecuador who
sued Chevron Corporation, referring to them as the “so-called plaintiffs” and calling Mr.
Donziger’s work in Ecuador “not bona fide litigation”. By contrast, Judge K referred to the
Corporation as a “company of considerable importance to our economy that employs
thousands all over the world, that supplies a group of commodities, gasoline, heating oil,
other fuels and lubricants on which every one of us depends every single day”, and postulated
that: “I don’t think there is anybody in this courtroom who wants to pull his car into a gas
station to fill up and find that there isn’t any gas there because these folks [the Ecuadorians]
have attached it in Singapore or wherever else.”
27.
Allegedly, the concerns over Judge K’s perceived bias did not stop him from assigning
the case lodged under the Racketeer Influenced and Corrupt Organizations Act to his own
court in 2011, instead of letting it be assigned by lot.
28.
The source adds that, during the trial, Judge K denied the defendants the opportunity
to present scientific evidence of Chevron Corporation’s pollution and refused to examine or
consider the evidence, including 105 technical evidentiary reports, relied on by the courts in
Ecuador to reach the verdict against the Corporation. Even after a witness presented by the
Corporation admitted to having received large sums of money and other benefits from it prior
to testifying in court against Mr. Donziger, Judge K concluded that the witness was telling
the truth about the essential facts of the case.
ii.
Apparent lack of impartiality of the judiciary during the criminal contempt case
29.
Reportedly, in response to the ruling in the racketeering trial, and as Mr. Donziger and
others were making progress in enforcing the judgment of the court in Ecuador in other
jurisdictions, Chevron Corporation sought post-judgment discovery to identify all of Mr.
Donziger’s assets to determine whether he had complied with an $800,000 costs order
imposed at the trial without a jury. After Mr. Donziger appealed the order to surrender his
devices and accounts to the forensic experts, Judge K filed extraordinary criminal contempt
of court charges against him, while the appeal was pending.
30.
According to the source, under United States Federal Rule of Criminal Procedure 42,
the court must request an attorney for the Government to prosecute contempt. The case
against Mr. Donziger was referred to the Office of the United States Attorney for the Southern
District of New York, which declined to pursue prosecution. In response, Judge K took the
allegedly unusual decision to appoint a private law firm, which later admitted to a conflict of
interest, given that Chevron Corporation had been its client in 2018, as private prosecutors in
the criminal contempt case.
31.
The source reports that Judge K also personally selected Judge P to preside over the
criminal contempt charges, which, according to the source, bypassed rule 16 of the Rules for
the Division of Business Among District Judges, which states that “the assignment committee
shall transfer the case by lot”.
32.
Since the filing of those charges, Mr. Donziger has reportedly filed a number of
pretrial motions raising concerns about the impartiality of Judge P, each of which were denied
by the same Judge P and were not referred to another judge. The motions were denied on a
number of grounds, including that bias was not a reason for transferring the case to another
court.
33.
On 13 July 2020, two retired United States federal judges took the unusual step of
publicly criticizing the sitting federal judges pursuing the criminal contempt case against Mr.
Donziger, writing that they were “deeply troubled” by the “grave risk” to due process.4
Reportedly, an expert in legal ethics filed a sworn declaration stating that the law firm from
which the private prosecutors were appointed had “a disqualifying conflict of interest,
because of their indirect ties to companies related to Chevron”, indicating that “the legitimacy
of the rule 42 process and, ultimately, the criminal justice system may be undermined”. A
4 See
https://static1.squarespace.com/static/5ac2615b8f5130fda4340fcb/t/5f0dc3fd6a8632767c2de633/1594
737663061/2020-07-13-law360-gertner-bennett.pdf.
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prominent trial lawyer in the United States and an emeritus professor of law at Duke
University also raised questions publicly after the presiding judge tried to force Mr. Donziger
into proceeding to trial during the COVID-19 pandemic, when witnesses and lawyers could
not appear in person. He reportedly expressed that “the wielding of the criminal contempt
power, without the oversight of a jury, during a health crisis, is beyond the pale”. He added
that: “None of this paints a picture of fair trials and constitutional protections”.5
34.
For the source, considering Judge K’s conflict of interest and bias against Mr.
Donziger, it is worrying that he decided to hold Mr. Donziger in criminal contempt,
appointing prosecutors with links to Chevron Corporation and personally selecting a judge
to preside over the case. The Human Rights Committee has explained that a trial cannot be
fair when the defendant in criminal proceedings is faced with the expression of a hostile
attitude from the public or support for one party in the courtroom that is tolerated by the court,
thereby impinging on the right to defence.6 In the present case, the hostile expressions are
allegedly coming directly from the judge, whose role is to fairly and impartially preside over
the case.
35.
Based on the allegations set out above, the source claims that Judge K’s statements
and actions raise serious questions about his impartiality, which itself may amount to a form
of reprisal against Mr. Donziger’s human rights work. The right to an impartial tribunal
requires that judges have no interest or stake in the particular case, do not have pre-formed
opinions about it and do not act in ways that promote the interests of one of the parties. It is
alleged that the principle of impartiality of the courts has not been respected.
iii.
Interference with Mr. Donziger’s liberty to allegedly circumvent attorney-client privilege
36.
The right to equality before the courts requires that similar cases be handled in similar
ways. To respect that right, the creation of exceptional procedures or special courts for certain
categories of offences or groups of people, unless there are objective and reasonable
justifications is therefore prohibited. Moreover, the decision to impose a deprivation of
liberty must be taken in accordance with the applicable law and procedure and be
proportional to the aim sought, reasonable and necessary.
37.
The source reports that former judges have expressed their concerns about the
excessive charges imposed against Mr. Donziger. In an article published on 13 July 2020,7
they stated they had “never heard of criminal charges being initiated under circumstances in
which the lawyer, in apparent good faith, was seeking more judicial review, as opposed to
openly flouting the court”. According to the judges, Mr. Donziger was seeking judicial
review so that he could “properly resolve the important constitutional issues at stake, given
the dangers faced by his clients in Ecuador”. They further argued that: “to protect both the
court’s contempt power and the purpose of criminal sanction, criminal contempt should be
reserved only for acts so grave and abhorrent that they amount [not just to an offence against]
the presiding judge, but one that has potential for undermining public confidence in the
authority and dignity of our courts”. In particular, the legal experts questioned the necessity
and proportionality of the use of criminal contempt in the present case, considering that civil
contempt already provided the necessary tools to manage the situation.
38.
The source argues that international human rights law protects the right to privacy and
prohibits arbitrary interfere with a person’s privacy, family, home or correspondence. In the
case of Michaud v. France, in which the communications between a lawyer and his client
were intercepted, the European Court of Human Rights recognized that there can be no
interference with the right to privacy unless it is in accordance with the law, pursues one or
5 See https://uploads-
ssl.webflow.com/5dfadfd73722094f43ca18cf/5f52ebb8aa1af539b6558418_MT.pdf.
6 Human Right Committee, general comment No. 32 (2007) on the right to equality before courts and
tribunals and to a fair trial, para. 25.
7 See
https://static1.squarespace.com/static/5ac2615b8f5130fda4340fcb/t/5f0dc3fd6a8632767c2de633/1594
737663061/2020-07-13-law360-gertner-bennett.pdf.
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more legitimate aim and is necessary in a democratic society. Such restrictions must respond
to a pressing social need and must be proportional to the legitimate aim pursued.
39.
According to the source, lawyers have a professional duty to protect the privacy and
confidentiality of their communications with clients under international law. The Basic
Principles on the Role of Lawyers declare that lawyers have the duty and responsibility to
maintain the honour and dignity of their profession by being loyal and respectful of their
clients’ interests. According to principle 12, lawyers must at all times act freely and diligently
in accordance with the law and recognized standards and ethics of the legal profession.
Importantly, the Principles also determine that Governments have the obligation to protect
lawyers from prosecution or other sanctions for any action taken in accordance with
recognized professional duties, standards and ethics and to recognize and respect that all
communications and consultations between lawyers and their clients within their professional
relationship are confidential.
40.
In Michaud v. France, the European Court of Human Rights established that article 8
of the Convention for the Protection of Human Rights and Fundamental Freedoms protected
the confidentiality of private communications, whatever the content of the concerned
correspondence and whatever form it may take. The Court asserted that article 8 afforded
strengthened protection to the communication between lawyers and their clients, justified by
the fact that lawyers were assigned a fundamental role in a democratic society, that of
defending litigants. Lawyers could not carry out that essential task if they were unable to
guarantee to those they were defending that their exchanges would remain confidential.
41.
In Leotsakos v. Greece, the European Court of Human Rights held that the seizure of
several items and documents in the framework of a criminal investigation against a lawyer
had been done with insufficient safeguards for the protection of attorney-client privilege. In
Wolland v. Norway, the Court established that, in order for an interference to be legitimate
under article 8 of the Convention, sufficient and adequate guarantees against arbitrariness
should be granted. The Court acknowledged that it was possible for domestic law to allow
for searches of lawyer’s documents as long as proper safeguards are provided, such as
through the presence of a representative of a bar association.
42.
Similarly, the Inter-American Court of Human Rights has found that the disclosure of
the communications between a lawyer and his or her client is a violation of the right to privacy.
In the case of Donoso v. Panama, the Court analysed whether the wiretapping and recording
of a telephone conversation between a lawyer and the father of his client, and the subsequent
disclosure of its contents, had violated article 11 of the American Convention on Human
Rights. The Court took into consideration the private nature of the telephone conversation,
that neither of the two persons consented to it being known by third parties and that such a
conversation, being conducted between the alleged victim’s father and one of his clients,
should be afforded a higher degree of protection due to the legal professional secrecy.
43.
The Special Rapporteur on the independence of judges and lawyers has also
emphasized that lawyers’ files and documents should be protected from seizure or inspection
and that communications should not be intercepted.
44.
In the present case, the protocol created by the judge for the collection, imaging and
examination of Mr. Donziger’s electronic devices allegedly did not provide any safeguards
to protect confidential information about the indigenous people and campesino whom he
represented, including information related to core litigation strategies to enforce the judgment
against Chevron Corporation around the world. The protocol reportedly provides a backdoor
for the Corporation to virtually access all of the confidential information and attorney-client
communications related to the case, allowing the Corporation to have access to information
that they could not otherwise obtain legally. Even if a pressing need were to be found for the
surrender of Mr. Donziger’s computer and telephone, the role of legal professional privilege
must be weighed against that need.
45.
The source stresses that criminal contempt is a rare and extraordinary measure that
the United States Supreme Court has repeatedly emphasized should be exercised only with
great caution, given that it provides the court with the authority to define the crime, appoint
a prosecutor and preside over the case, without the normal safeguards provided in every other
criminal prosecution. The use of criminal contempt in Mr. Donziger’s case does not appear
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to comply with that exhortation towards restraint, especially given that Mr. Donziger clarified
that he was seeking judicial review and that he indicated that he would comply with the order
if his appeal were to be rejected.
46.
The decision to hold Mr. Donziger in pretrial detention based on criminal contempt
of court charges is allegedly of concern, given that it stems from his decision to uphold his
professional duty towards confidentiality. The decision to deprive Mr. Donziger of his liberty
allegedly appears rather to be a punitive measure intended to force him to reveal the
privileged communications between an attorney and his clients and a punishment for
upholding his professional duty.
iv.
Deprivation of liberty beyond the maximum period envisaged under the charges
47.
The source submits that pretrial detention must be exceptional and based on an
individualized determination that it is reasonable and necessary, specified in law and without
vague and expansive standards. The burden rests on the State to establish that it is necessary
and proportionate to detain a defendant pending trial and must establish that his or her release
would create a substantial risk of flight or harm to others or interfere with the evidence or
investigation. If the length of time that the defendant has been held in pretrial detention
reaches the length of the longest possible sentence, the defendant should be released.
48.
The right to be tried without undue delay is aimed at avoiding keeping people too long
in a state of uncertainty about their fate and ensuring that the deprivation of liberty does not
last longer than necessary. What is reasonable should be assessed according to the
circumstances of each case.
49.
Under article 9 (3) of the Covenant, pretrial detention should not be a general rule; it
must only be used as an exceptional measure and must be for as short a duration as possible.
Unjustified and prolonged pretrial detention constitutes arbitrary deprivation of liberty.
50.
In ordering the imposition of the precautionary measure of pretrial house arrest, the
judge presiding over the criminal contempt case claimed that the measure was necessary to
prevent Mr. Donziger from leaving the country. However, Mr. Donziger has never missed a
court date in almost a decade; he surrendered his passport; and he has worn a GPS tracking
device around his ankle 24 hours per day. He voluntarily returned from abroad to face the
criminal charges lodged against him and has a wife and son with whom he has lived in the
same residence in the United States for 14 years.
51.
According to the judge in Mr. Donziger’s criminal contempt case, because of the
denial of his jury trial rights, he can only be punished by a maximum of six months’
imprisonment. Mr. Donziger has been in pretrial home detention for over two years.
52.
The source claims that the pretrial house arrest of Mr. Donziger raises serious
concerns as to the lawfulness of the deprivation of liberty, both in terms of the apparent lack
of necessity and the requirement to release defendants when the time of detention reaches the
length of the longest possible sentence.
v.
Detention as a form of reprisal
53.
The source recalls that the Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights
and Fundamental Freedoms defines a human rights defender as any individual who acts,
individually or in association with others, to promote or protect human rights. It protects the
rights of individuals to strive for the protection and realization of human rights at the national
and international levels, to offer and provide professionally qualified legal assistance and to
solicit, receive and utilize resources for the purpose of promoting or protecting human rights.
54.
The source also recalls that human rights defenders may work to address concerns
related to toxic waste, and its impact on the environment, and to protect the rights to life and
to the highest attainable standard of health, as well as the rights of indigenous peoples. The
source notes that human rights defenders may provide professional legal advice and represent
victims in judicial processes, and many such defenders work to secure accountability for
human rights violations.
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55.
Mr. Donziger’s work as a human rights defender reportedly spans four decades and
multiple continents, representing individuals from a wide range of backgrounds in cases
implicating a range of human rights violations. Mr. Donziger visited Ecuador in 1993 and
subsequently formed part of a legal team that brought a class action lawsuit in New York on
behalf of the 30,000 indigenous people from the Ecuadorean Amazon, in response to the
widespread and systematic oil dumping in the region and the associated health impacts on
the communities.
56.
In 2017, the Special Rapporteur on the rights to freedom of peaceful assembly and of
association expressed her concern over a worrying new approach in the United States of
litigants using the racketeering statute to intimidate advocacy groups and activists. The
Special Rapporteur on the situation of human rights defenders has also expressed his concern
over the restrictions faced by environmental defenders in the United States. The source
reports an alarming trend, in which, since 2019, human rights defenders have been targeted
and harassed through the criminal justice system in the United States.
57.
The Inter-American Commission on Human Rights has also expressed its concern
over businesses and corporations that lodge criminal complaints against human rights
defenders in order to diminish their activities. According to the Commission, private
companies not only file complaints within unfounded criminal prosecutions, but sometimes
conduct smear campaigns against human rights defenders to tarnish their credibility.
58.
On July 2020, the Chair of the Subcommittee on Human Rights of the European
Parliament expressed her concern over the detention of Mr. Donziger as a form of reprisal
for his human rights work. Addressing two United States Congressional Committees by letter,
the Chair asked the United States Congress to look into Mr. Donziger’s case.
59.
The judicial proceedings against Mr. Donziger reportedly follow the same pattern and
appear to be intended to obstruct his work defending the rights of victims of human rights
violations. The immediate reason for the criminal contempt charges that led to Mr.
Donziger’s detention was his refusal to surrender devices that would give Chevron
Corporation close to wholesale access to confidential, privileged and protected documents in
a way that would have compromised his ability to provide legal assistance to the people he
was defending, which would have also posed a great risk to their lives.
60.
The source recalls that the detention of human rights defenders that stems solely from
their legitimate activities is arbitrary. Targeting persons on the basis of their activities as
human rights defenders is discriminatory and violates the rights to equality before the law
and equal protection of the law encapsulated in articles 2 and 7 of the Universal Declaration
of Human Rights and article 26 of the Covenant.
Response from the Government
61.
On 3 February 2021, the Working Group transmitted the allegations from the source
to the Government of the United States under its regular communications procedure. The
Working Group requested that the Government provide, by 6 April 2021, detailed
information about the current situation of Mr. Donziger and clarify the legal provisions
justifying his continued detention and its compatibility with the obligations of the United
States under international human rights law, in particular with regard to the treaties ratified
by the State. The Working Group called upon the Government of the United States to ensure
Mr. Donziger’s physical and mental integrity.
62.
The Working Group regrets that it has received no reply from the Government, and
the Government did not request an extension in accordance with paragraph 16 of the Working
Group’s methods of work. The Working Group regrets that the Government has not engaged
with it since 2017, having not responded to any of the communications sent by the Working
Group since then.8 The Working Group encourages the Government to avail itself of the
opportunities to engage with the Working Group constructively.
8 See opinions No. 70/2019, No. 85/2019, No. 49/2020 and No. 32/2021.
A/HRC/WGAD/2021/24
10
Discussion
63.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
64.
In determining whether the detention of Mr. Donziger is arbitrary, the Working Group
has regard to the principles established in its jurisprudence on the ways in which it deals with
evidentiary issues. If the source has established a prima facie case for breach of international
law constituting arbitrary detention, the burden of proof should be understood to rest upon
the Government if it wishes to refute the allegations.9 In the present case, the Government
has chosen not to challenge the prima facie credible allegations made by the source.
65.
A preliminary issue for the Working Group is whether Mr. Donziger is currently
deprived of his liberty. On 6 August 2019, pretrial house arrest was imposed upon Mr.
Donziger, therefore, since that date, which is a period of over two years as at the time of
adoption of the present opinion, he has not been allowed to leave his apartment at will.
According to the source, Mr. Donziger is effectively confined to his apartment, has had to
surrender his passport and must wear a GPS tracking device around his ankle. The Working
Group notes with regret the choice of the Government not to address any of the allegations.
66.
As the Working Group has previously stated, deprivation of liberty is not only a
question of legal definition, but also of fact. If the person concerned is not at liberty to leave
a place of detention, then all the appropriate safeguards that are in place to guard against
arbitrary detention must be respected.10 Moreover, in its jurisprudence, the Working Group
has maintained that house arrest amounts to a deprivation of liberty provided that it is carried
out in closed premises, which the person is not allowed to leave.11 In determining whether
that is the case, the Working Group considers whether there are limitations on the person’s
physical movements, on receiving visits from others and on various means of communication,
as well as the level of security around the place where the person is allegedly detained.12
Consequently, the assessment of whether a house arrest constitutes deprivation of liberty is
to be carried out on a case-by-case basis.13
67.
In the present case, the source has argued, and the Government has not contested, that
Mr. Donziger has been confined to his apartment since 6 August 2019 by a court order; he
has been required to wear an electronic monitoring device and has had to surrender his
passport. The Working Group notes that the trial against Mr. Donziger is ongoing. In such
circumstances, the Working Group is of the view that Mr. Donziger has indeed been deprived
of his liberty since 6 August 2019.
68.
Having established that Mr. Donziger has been deprived of his liberty since 6 August
2019, the Working Group will proceed to examine whether that deprivation of liberty
amounts to arbitrary deprivation of liberty.
a.
Category I
69.
The Working Group initially wishes to observe that it has been presented with
accounts of two sets of proceedings, although both are very closely interlinked. One set of
proceedings dates back to 2011 and concerns the racketeering charges brought against Mr.
Danziger. Those proceedings were presided over by Judge K and their outcome is still
unknown, given that the proceedings are ongoing. Linked to those proceedings, but
nevertheless separate and presided over by Judge P, are the criminal contempt of court
9 A/HRC/19/57, para. 68.
10 See A/HRC/36/37, para. 56; see also, e.g. opinion No. 37/2018.
11 See, e.g. opinions No. 13/2007, para. 24; and No. 37/2018; and deliberation No. 1 (E/CN.4/1993/24,
sect. II), para. 20.
12 See, e.g. opinion No. 16/2011, in which an individual under house arrest could not meet with foreign
diplomats, journalists or other visitors at her apartment and her mobile telephone and Internet services
were cut off. She was not allowed to leave her apartment, except on short, approved trips and under
police escort, and the entrance to the compound was guarded by security agents (para. 7). See also
opinions No. 21/1992, No. 41/1993, No. 4/2001, No. 11/2001, No. 11/2005, No. 18/2005, No.
47/2006, No. 12/2010, No. 30/2012 and No. 39/2013.
13 Deliberation No. 1, para. 20.
A/HRC/WGAD/2021/24
11
proceedings, which commenced in 2018 and led to the imposition of the pretrial house arrest
upon Mr. Donziger on 6 August 2019.
70.
The Working Group notes that the source has made numerous and very serious
allegations concerning the first set of proceedings, which were commenced by Chevron
Corporation in 2011, including allegations of bias of Judge K (see paras. 9, 11 and 25–28
above) and Judge K’s refusal to allow witness statements and other violations of the principle
of equality of arms (see paras. 11 and 28). The Working Group notes the reported severe
criticism of fairness of the proceedings (see paras. 33 and 37 above). However, it was not
those proceedings, but rather the criminal contempt of court charges that lead to Mr.
Donziger’s deprivation of liberty. Consequently, the former set of proceedings fall outside
the mandate of the Working Group. Nevertheless, noting the serious and uncontested
allegations, the Working Group refers the case to the Special Rapporteur on the issue of
human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable
environment, the Working Group on the issue of human rights and transnational corporations
and other business enterprises and the Special Rapporteur on the implications for human
rights of the environmentally sound management and disposal of hazardous substances and
wastes, for further consideration and appropriate action.
71.
Turning to the latter set of proceedings, namely, the criminal contempt of court
charges, the Working Group recalls the uncontested submissions by the source that, on 6
August 2019, Judge P ordered Mr. Donziger to surrender his passport, wear a GPS tracking
device around his ankle and be placed in home confinement. Judge P justified the pretrial
house arrest on the grounds of Mr. Donziger’s being a flight risk, specifically that Mr.
Donziger had previously defied unspecified “court orders” and had a history of travel to
Ecuador. The source has submitted, and the Government has not contested, that Mr. Donziger
repeatedly and unsuccessfully challenged that decision from September 2019 to January 2020.
Mr. Donziger filed and argued an appeal of the pretrial detention, which was rejected in a
one-sentence order on 18 February 2020.
72.
The Working Group recalls that it is a well-established norm of international law that
pretrial detention should be the exception, and not the rule, and that it should be ordered for
as short a time as possible.14 Article 9 (3) of the Covenant provides that it should not be the
general rule that persons awaiting trial are detained, but release may be subject to guarantees
to appear for trial and at any other stage of the judicial proceedings. It follows that liberty is
recognized as a principle, and detention as an exception, in the interests of justice.15
73.
In order to give effect to that principle, pretrial detention must be based on an
individualized determination that it is reasonable and necessary, for such purposes as to
prevent flight, interference with evidence or the recurrence of crime. 16 The courts must
examine whether alternatives to detention, such as bail, would render custodial measures
unnecessary. 17 According to the source, Mr. Donziger’s applications contesting pretrial
detention were rejected by the court on numerous occasions, with his final appeal being
unsuccessful on 18 February 2020. On that occasion, the source has argued, and the
Government has not contested, that the court provided a one-sentence judgment. The
Working Group cannot accept that that satisfies the requirements of article 9 (3) of the
Covenant and therefore cannot accept that Mr. Donziger’s pretrial detention was properly
constituted in accordance with article 9 (3) of the Covenant.
74.
Furthermore, the Working Group notes the serious allegations of bias on behalf of
Judge K reported by the source (see paras. 9, 11 and 25–28 above) and uncontested by the
Government. In that regard, the Working Group notes that it was Judge K who personally
selected Judge P to preside over the contempt of court charges that he had levied against Mr.
Donziger and that he did so by bypassing the established rules and procedures (see paras. 17
and 31 above). When Mr. Donziger challenged the decision to appoint Judge P, Judge P was
14 Opinions No. 28/2014, para. 43; No. 49/2014, para. 23; No. 57/2014, para. 26; No. 1/2020, para. 53;
and No. 8/2020, para. 54; Human Rights Committee, general comment No. 35 (2014) on liberty and
security of person, para. 38; and A/HRC/19/57, sect. III.A.
15 A/HRC/19/57, para. 54.
16 Human Rights Committee, general comment No. 35 (2014), para. 38.
17 Ibid.; Working Group opinion No. 83/2019, para. 68; and A/HRC/30/37, annex, guideline 15.
A/HRC/WGAD/2021/24
12
the one who examined the challenge and dismissed it stating, inter alia, that bias was not
valid grounds.
75.
The Working Group recalls that it is inherent to the proper exercise of judicial power
that it be exercised by an authority that is independent, objective and impartial in relation to
the issues dealt with,18 as asserted by the Human Rights Committee in relation to article 9 (3)
of the Covenant. In the present case, the Working Group is of the view that Judge P did not
act in a manner which was independent, objective and impartial in relation to Mr. Donziger’s
case. Consequently, the Working Group concludes that the imposition of pretrial detention
upon Mr. Donziger was in violation of article 9 (3) of the Covenant.
76.
The source submits, and the Government does not contest, that the maximum penalty
for the crime of which Mr. Donziger is accused is six months’ imprisonment (see para. 20
above). Mr. Donziger, having been under house arrest since 6 August 2019, has therefore
already served the maximum possible penalty some four times over. In that regard, the
Working Group recalls that the Human Rights Committee has argued that if the length of
time that the defendant has been detained reaches the length of the longest sentence that could
be imposed for the crimes of which he or she is charged, the defendant should be released.19
That is a further breach of article 9 (3) of the Covenant.
77.
Noting all the above, the Working Group concludes that the detention of Mr. Donziger
lacks legal basis and is therefore arbitrary, falling within category I of the arbitrary detention
categories referred to by the Working Group when considering cases submitted to it. The
Working Group refers the case to the Special Rapporteur on the independence of judges and
lawyers, for further consideration and appropriate action.
b.
Category III
78.
The source has submitted, and the Government has chosen not to contest, that Mr.
Donziger has been in pretrial detention since 6 August 2019 – a very long period, of over two
years’ duration as at the time of the present opinion. Given the circumstances, the Working
Group considers that Mr. Donziger is being denied his right to be tried without undue delay.
The reasonableness of any delay in bringing a case to trial must be assessed in the
circumstances of each case, taking into account the complexity of the case, the conduct of
the accused and the manner in which the matter was dealt with by the authorities.20 In the
present case, the Working Group notes the exceptional level of cooperation provided by Mr.
Donziger to all authorities; moreover, as previously noted, the maximum penalty that could
be imposed amounts to six months’ imprisonment. Given that he has now been detained for
more than two years, the Working Group considers that the courts must reconsider
alternatives to detention.21 The Working Group recalls that even the circumstances of a public
health emergency cannot justify the denial of fair trial rights, as elaborated in its deliberation
No. 11, on the prevention of arbitrary deprivation of liberty in the context of public health
emergencies.22
79.
The right to be tried within a reasonable time frame and without undue delay is one
of the essential fair trial guarantees embodied in articles 10 and 11 (1) of the Universal
Declaration of Human Rights and articles 9 (3) and 14 (3) (c) of the Covenant, and it has
been violated in the present case. If Mr. Donziger cannot be tried within a reasonable time
frame, he is entitled to release under articles 9 (3) and 14 (3) (c) of the Covenant.23 Because
that has not taken place, a violation of Mr. Donziger’s rights under those articles has occurred.
18 Human Rights Committee, Kulomin v. Hungary (CCPR/C/56/D/521/1992), para. 11.3.
19 Human Rights Committee, general comment No. 35 (2014), para. 38. See also Working Group
opinion No. 14/2019.
20 Human Rights Committee, general comment No. 35 (2014), para. 37; and general comment No. 32
(2007), para. 35.
21 Human Rights Committee, general comment No. 35 (2014), para. 37.
22 A/HRC/45/16, annex II, paras. 20–21.
23 See A/HRC/19/57, sect. III.A. See also Working Group opinion No. 18/2018, para. 50.
A/HRC/WGAD/2021/24
13
80.
The Working Group recalls the uncontested allegations that Mr. Donziger was not
given a reasoned decision for the application of pretrial detention (see para. 73 above). The
Working Group therefore finds a breach of article 14 (1) of the Covenant.
81.
The Working Group has already examined the multiple allegations of bias displayed
by Judge K against Mr. Donziger (see paras. 74–75 above). The Working Group notes that
Mr. Donziger was denied, in a biased fashion, the right to be tried by jury and that it was
Judge K who in fact drafted the charges against Mr. Donziger. That is a staggering display
of lack of objectivity and impartiality, and the Working Group therefore finds a further breach
of article 14 (1) of the Covenant.
82.
Noting the foregoing, and given the exceptional length of Mr. Donziger’s pretrial
detention, which has exceeded by more than four times the maximum possible penalty, the
Working Group considers that the detention of Mr. Donziger falls within category III. In
arriving at that decision, the Working Group is also mindful of its views under category V
(see sect. c below).
c.
Category V
83.
The Working Group turns to the examination of the uncontested allegation that Mr.
Donziger is held in pretrial detention based on criminal charges of contempt, given that those
charges stem from his decision to uphold his professional duty as a lawyer towards the
confidentiality of his clients.
84.
The Working Group is appalled by the uncontested allegations in the case. The
charges against, and the detention of, Mr. Donziger appear to be in retaliation for his work
as a legal representative of indigenous communities, because he refused to disclose
confidential correspondence with his clients in a very high-profile case against a
multinational business enterprise. In that regard, the Working Group recalls that, under
principle 14 of the Basic Principles on the Role of Lawyers, lawyers are required to act freely
and diligently in accordance with the law and recognized standards and ethics of the legal
profession at all times. Under principle 22 thereof, Governments are required to recognize
and respect that all communications and consultations between lawyers and their clients
within their professional relationship are confidential. In the present case, Mr. Donziger
provided various options on how he could cooperate with the judiciary of the United States
without violating his professional duty of confidentiality towards his clients, making explicit
his concerns over the need to uphold his ethical duty as a lawyer. Nevertheless, he was
arbitrarily deprived of his liberty on 6 August 2019, as the Working Group has established
above.
85.
Moreover, the Working Group is mindful that Mr. Donziger was the legal
representative of indigenous communities and in fact acted as a human rights defender, a
conclusion similar to the one arrived at by the Chair of the Subcommittee on Human Rights
of the European Parliament in June 2020.
86.
The Working Group has in the past concluded that being a human rights defender is a
status protected by article 26 of the Covenant.24 Accordingly, the Working Group finds that
Mr. Donziger was deprived of his liberty on discriminatory grounds, that is, due to his status
as a lawyer and a human rights defender, in violation of articles 2 and 7 of the Universal
Declaration of Human Rights and articles 2 (1) and 26 of the Covenant. His deprivation of
liberty is arbitrary, falling within category V. The Working Group refers the present case to
the Special Rapporteur on the situation of human rights defenders, for consideration and
appropriate action.
87.
The Working Group wishes to emphasize that the findings in the present opinion
regarding category V are strictly limited to the very specific circumstances of Mr. Donziger’s
case.
24 See e.g. opinions No. 48/2017, No. 50/2017 and 19/2018; and A/HRC/36/37, para. 49.
A/HRC/WGAD/2021/24
14
Disposition
88.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Steven Donziger, being in contravention of articles 2, 3,
7, 10 and 11 of the Universal Declaration of Human Rights and articles 2 (1), 9, 14
and 26 of the International Covenant on Civil and Political Rights, is arbitrary and
falls within categories I, III and V.
89.
The Working Group requests the Government of United States to take the steps
necessary to remedy the situation of Mr. Donziger without delay and bring it into conformity
with the relevant international norms, including those set out in the Universal Declaration of
Human Rights and the International Covenant on Civil and Political Rights.
90.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Donziger immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.
91.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Donziger and to take appropriate measures against those responsible for the violation of his
rights.
92.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the issue of human rights obligations relating
to the enjoyment of a safe, clean, healthy and sustainable environment, the Special
Rapporteur on the independence of judges and lawyers, the Working Group on the issue of
human rights and transnational corporations and other business enterprises, the Special
Rapporteur on the implications for human rights of the environmentally sound management
and disposal of hazardous substances and wastes and the Special Rapporteur on the situation
of human rights defenders, for appropriate action.
93.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
94.
In accordance with paragraph 20 of its methods of work, the Working Group requests
that the source and the Government provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Donziger has been released unconditionally and, if so, on what
date;
(b)
Whether compensation or other reparations have been made to Mr. Donziger;
(c)
Whether an investigation has been conducted into the violation of Mr.
Donziger’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of the United States with its international obligations in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
95.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
96.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action would
enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
A/HRC/WGAD/2021/24
15
97.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested that they take account of its views
and, where necessary, take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and inform the Working Group of the steps that they have taken.25
[Adopted on 6 September 2021]
25 See Human Rights Council resolution 42/22, paras. 3 and 7.