CASE NO. A334139
MOTION OF AMICUS CURIAE
SWISS INVESTORS PROTECTION ASSOCIATION
TO FILE BRIEF AND INCORPORATED MEMORANDUM OF LAW
Amicus curiae Swiss Investors Protection Association, by and
through its Secretary, hereby moves the Court for permission to file brief
outline of elements, plus 8 exhibits, in support of the Common Good, Justice,
the Rule of Law, the prerogatives of the constitutional lawmakers, and
the pre-eminence of U.S. Senate-approved international treaties and conventions,
all of which are seen to be material regardless of how the case against
Roman Polanski will eventually be disposed of. The brief, which contains
5 pages of text, is attached to this motion, as are the exhibits (www.solami.com/exhibits.htm).
It is not intended to dwell here
at length on applicable and relevant legal theories, reasonings and arguments
which have been the stock in trade of more learned and capable colleagues
on either side of the case. Rather, the focus of this brief is on some
so far apparently overlooked or down played questions. Such as the legality,
under the U.S./Swiss extradition treaty of 1990, of the initial Swiss information
request - 4 days prior to Roman Polanski's arrest at Zürich airport
- on whether the California arrest warrant is still valid, and on whether
the California authorities are still interested in its enforcement if and
when Mr. Polanski's plan to show up will materialise. Moreover - and not
least in light of the ruling handed down by the Court of Appeals of the
State of California of December 21, 2009 - there are some doubts as to
the applicability of the current Swiss-American extradition treaty. It
is also doubtful whether this treaty's explicit sine qua non condition
of a minimum sentence of 6 months jail can reasonably be squared with the
alleged plea-bargaining terms of a maximum of 90 days of "diagnostic evaluation"
time as full punishment which, incidently, had been served prior to Mr.Polanski'
flight some 31 years ago. Last but not least, developments not directly
related to the case at hand seem to indicate serious consideration of whether
conditions are not again present for mutually honoring the Swiss-American
practice, established in the Marc Rich case, of recognizing the requested
state's eventual claim of "essential interests" - which, of course,
would anyway automatically free it from its conventional extradition obligations.
MEMORANDUM OF LAW
1. The California
Code of Judicial Ethics of Jan 1, 2008, specifies (re: amicus
"An appropriate and often desirable procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to file an amicus curiae brief."
Also, in its order of April 13, 2009 [DE 33], the U.S. District Court for the Southern District of Florida, Miami Division, in case no. 09-20423, held that district courts have the inherent authority to allow participation by an amicus curiae where an amicus brief "would be desirable and relevant to the disposition of the case." Subject to this California Court's approval, this Florida rule is thus understood to be applicable by analogy to the case at hand.
2. The Swiss Investors Protection Association ASDI/SIPA was founded in 1981 by Swiss lawmakers, lawyers and other concerned professionals as an association in the sense of art.60 of the Swiss Civil Code (www.solami.com/gold.htm#ASDI/SIPA). It is seen to be in a unique position to shed additional light on the extradition matters at issue and thus to significantly assist the Court in the disposition of this case. Indeed, since its beginning, ASDI/SIPA, and the undersigned ad personam, have rendered good offices for addressing & discreetly but successfully resolving various Swiss-U.S. legal disputes. This included preventing both the kidnapping and extradition from Swiss soil of Marc Rich who, in 1983, was accused by a US district attorney of "trading with the enemy" - Iran - through his Swiss-based company Marc Rich & Cie AG (.../marcrich.htm). It included the blocking of the giant RJR/Nabisco leveraged buy out (LBO) while it jeopardized Swiss bondholders (.../barbarians.htm). We have initiated the first-ever personal meeting of the US and Soviet Chiefs of the Joint General Staff which, in 1985, led to the Reagan-Gorbachev meeting of Geneva (exhibit 1: .../amicus.htm#appreciation). We have been involved in Y2K-work in cooperation with U.S. Senate staffers & European officials (.../Y2K.htm). And we have labored towards a mutually helpful resolution of the US attempt to globally extend its fiscal and monetary sovereignty (.../QI.htm | .../USvsUBS.htm | .../capitalism.html).
3. This brief may be of assistance in as much as this Court is not ruling out the resolution of "one of the longest running sagas in California criminal justice history" by drawing inspiration from the recommendations developed by the Court of Appeal of the State of California (Polanski v. Sup.Court (12/21/2009), B217290, Cal.App.7th 2). Concretely: this Court, too may ultimately find it in the interests of justice not to rely on the extradition of the petitioner Roman Polanski from Switzerland. For even if Polanski were extradited promptly or after a prolonged period of time, the misconduct of the Swiss authorities in this extradition - as detailed below - might taint the subsequent Court procedures similarly as illegally obtained evidence would. Accordingly, it seems that the interests of all parties concerned and the applicable principles call for the prompt resolution of this case in line with the in absentia options carefully developed by the Court of Appeal (ibid. 46ss).
4. In the case of that other "fugitive" Marc Rich, the Swiss Government saw itself compelled to forcefully intervene with both an amicus curiae and other sovereign means (.../marcrich.htm). As indicated in our obituary for an outstanding Swiss diplomat and specialist for parallel diplomacy (.../edouardbrunner.htm#Iran), the danger was then and has remained real of some U.S. power holders to aggressively pursue their narrow official duties, thus causing serious damage to both Swiss and U.S. interests in general, and with regard to Iran in particular. Then: by seeking to bring said "trader-with-the-enemy" to court - regardless of his role in helping the Swiss Government represent U.S. interests in Iran. And just recently: by imposing on Credit Suisse a penalty of $536 mio for allegedly violating U.S. law by conducting normal banking business with Iran (.../swissbanks.htm#studio).
5. In the case of Roman Polanski, again unspecified "essential Swiss interests" are seen to stand in the way of extradition. This is irrespective of the crime involved, the procedural status, and the applicability of the three related bilateral conventions (i.e. the Friendship, Reciprocal Establishments, Commerce and Extradition Convention of November 25, 1850, exhibit 2; the US/Swiss Mutual Legal Assistance Treaty of May 25, 1973, exhibit 3; and the Swiss/US Extradition Treaty of 14 November 1990, exhibit 4). Like "sovereignty, security and ordre public" reservations formally written into both the post 9/11EU/US Agreement on mutual legal assistance of June 25, 2003, and art.3 of the US/Swiss Mutual Legal Assistance Treaty of May 25, 1973, each treaty partner is at liberty to avail itself of the "essential interest" clause as being part of the general principles of international public law which, as a rule, supercede all other written or unwritten clauses (.../extraditionstop.htm#entraide).
6. However, this time so far only Swiss lawmakers have formally raised the red flag, with the Swiss Government expected to follow suit in line with its constitutional obligations and treaty rights. Indeed, last December 11, 16 members of Switzerland's biggest political party have introduced a motion in Parliament (09.4269: .../extraditionstop.htm, exhibit 5), specifying:
The Federal Council is requested to block the eventual extradition to the United States of Roman Polanski and protected data, at least as long as it is not established that such action would not damage any sovereignty or other essential Swiss interests. In the event, the United States would have to provide adequate guarantees that such action would not amount to a further alibi exercise aimed in fact at subverting the Swiss ordre public. Guarantees that it would not either undermine the economic courant normal which is a critically important feature of the permanent Swiss neutrality, e.g. in relation to Iran, and which was jeopardized in the case of the US extradition request for Marc Rich. And guarantees that its real objetive were not to fine-tune the machinery for arresting further globe-trotting Swiss bankers, lawyers and other fiduciaries.7. In its ruling of January 5, 2009, Switzerland's Federal Administrative Tribunal underlined both the government's and the administration's obligations and limits under art.5, al.1 of the Federal Constitution which says: "State action must be based on and is limited by the law." Furthermore, art.18 of the Vienna Convention on the Law of Treaties of May 23, 1969 (SR 0.111) specifies the "Obligation not to frustrate the realisation of the aim and the purpose of a treaty prior to its coming into force." Both authorities are seen to be applicable, at least by analogy, in the case at hand and for said Motion.
The undersigned members of the Swiss National Council take exception to the Federal Council's declaration, made in Parliament on December 7, 2009 (09.5624), stating that Switzerland "cannot refuse" the extradition to the United States of persons and protected data.
According to time-tested practices of international public law and valid treaties (SR 0.142.113.361; SR 0.351.933.6; SR 0.353.933.6; EU/US Agreement on mutual legal assistance of June 25, 2003[: www.solami.com/USEU.htm]), in relation with the most-favored-nation clauses contained in the latter, it automatically falls on the competent authorities to also examine and, in the event even in penal cases, to refuse the extradition of persons or protected data, in light of the general clauses concerning the protetion of "sovereignty, security, ordre public and other essential interests." This is the more so as the treaty partners - either tacitly or explicitly - have established and continued a corresponding bilateral practice (as is the case in Swiss-American relations in the wake of the strongly rejected US extradition request for Marc Rich who was prosecuted for "trading with the enemy" [- www.solami.com/marcrich.htm]).
The spontaneous inquiries and data transmissions to US authorities which preceeded the arrest of Roman Polanski on September 26, 2009, have produced not only an avoidable additional burden on our foreign relations but have made this arrest possible in the first place. In order to avoid further auto-goals, a detailed investigation of these actions and corresponding corrective measures are called for. Our dignity, sovereignty and peculiar interests are to be better safeguarded, as other cases of foreign ambitions have shown to be possible.
8. Of course, before it becomes binding on the Swiss government, said parliamentary motion has yet to be passed by both Chambers - either in the course of an accelerated procedure during their March session or, more likely, sometime in the next two years. Until that happens, the government is formally free to heed the US extradition request as soon as its own and the judicial procedures will have come to an end (probably in the second part of this year). However, this being a pre-election year, and given the visibly adverse economic and political effects of, and the rising public outcry over what is widely resented as the government's dismaying handling of protected data (UBS) and persistant U.S. pressures, it could well be that here, too, "past practice is no guarantee for future performance". Under these circumstances, it would be less than prudent, if not indeed unwise, to rely on a prompt extradition of Roman Polanski, more favorable but mostly self-serving and in fact misleading smoke signals not withstanding.
9. But even if Polanski would be extradited with his consent, his appearance before the California Court would likely be unhelpful for the cause of justice. For the entire extradition procedure appears to be tainted insofar as Swiss officials have acted without a proper legal basis and, most importantly, outside the bounds fixed by the Swiss/US Extradition Treaty of 14 November 1990 (exhibit 4). Already the extradition clause of the Friendship, Reciprocal Establishments, Commerce and Extradition Convention of 25 November 1850 - replaced since with said 1990 treaty with regard to extradition matters - provided only for the requesting and not the requested state to initiate an extradition procedure:
10. Indeed, as the Swiss Government admitted in Parliament on December 7, 2009 (exhibit 6), information enabling Polanski's arrest was exchanged with US authorities at the initiative of Swiss officials several days before his arrest at Zürich airport. This flies in the face of fundamental legal principles. It is not provided for in said treaty which still relies on the initiative of the state seeking the extradition of a fugitive. It constituted a self-damaging spontaneous automatic information supply for which there is no proper basis in Swiss law; in fact it is prohibited with art. 267 of the Swiss Penal Code (exhibit 7). Moreover, it is in violation of the above mentioned clause of the Swiss Constitution. All of which make that the fruits of this violation - in casu Polanski's eventual extradition - could not be used in and by a Court seeking to uphold the principles of Justice and the Rule of Law.
11. Art.2 of the Swiss/US Extradition Treaty of 1990
defines a crime for which extradition can be sought and granted to be a
crime which is punishable in both countries with a jail sentence
one year. If the extradition request concerns
a person which has already been sentenced - in the sense of committed -
by a court, the treaty explicitly authorizes extradition
the remaining jail time or security measure exceeds six months.
12. On August 8, 1977, Polanski pleaded guilty to charge 3, i.e. "unlawful sexual intercourse" (§ 261.5 US Penal Code at that time), all other charges thus being irreversably dropped, with the admitted charge patently falling outside the scope of said extradition treaty.
13. Given the alleged plea-bargaining
terms of 90 days
of "diagnostic evaluation" time as constituting full
punishment which, in its decision
of December 21, 2009, the California Appellate Court did not rule on but,
notably on page 5, found also to be sufficiently credible
for making the recommendations it made. And given all the other conditions
which seem to formally stand in the
way of Mr.Polanski's legal extradition to the United States
or, at a minimum, to significantly delay same, it appears
- that Justice, the Rule of Law, and bilateral Swiss-American relations would best be served if the extradition request were to be withdrawn forthwith; failing that,
- that the legal or, in the event, the political authorities of Switzerland reject this extradition request on formal grounds or, at least, for reasons of unspecified "essential Swiss interests"; and failing that,
- that the California Superior Court, either on its own or at the request of the District Attorney's office, promptly hold the long-overdue evidentiary hearing and proceed to close this case serenely and sovereignly, i.e. independently of Mr.Polanski's whereabouts, actions and inactions.
Anton Keller, Secretary
Swiss Investors Protection Association
cp 2580, 1211 Geneva 2, Switzerland
t+f: +4122-7400362 +4179-6047707
January 19, 2010
Exhibits 1-8 (www.solami.com/exhibits.htm)
exhibit 1 Declaration
of Appreciation by U.S. Congress, November 8, 1985
exhibit 2 Friendship, Reciprocal Establishments, Commerce and Extradition Convention, Nov 25, 1850: SR 0.142.113.361
exhibit 3 US/Swiss Mutual Legal Assistance Treaty, May 25, 1973: SR 0.351.933.6
exhibit 4 Swiss/US Extradition Treaty, 14 November 1990: SR 0.353.933.6
exhibit 5 Motion 09.4269 "National damages due to negligence of bilateral treaties", December 11, 2009
exhibit 6 Swiss National Council, question hour, December 7, 2009
exhibit 7 Swiss Penal Code article 267 (diplomatic treason)
exhibit 8 Declaration of Anton Keller