Sklyarov Denied Visa to Return to U.S. for Trial

Kurt Foss writes "Visa applications for Alexander Katalov and Dmitry Sklyarov of ElcomSoft were recently denied by the American Embassy in Moscow, jeopardizing their return to the U.S. in time for the company to face criminal charges for allegedly violating the Digital Millennium Copyright Act (DMCA) last year. The already rescheduled trial is presently set to begin in the U.S. District Court of Northern California on October 21."

Comments

Re:Tried in absentia?

[XorNand]

The guy your're talking bout is Ira Einhorn. France refused to extradite him because he could possibly face the death penalty in America. The circumstances are quite different than Skylarov's.

Re:Interesting

[badvictor]

Extradition is usually done for certain types of crimes, like murder for example. As far as I know Russia and the USA have not signed any extradition treaties for DMCA violations.

Re:Tried in absentia?

[Zeinfeld]

What would happen if they aren't able to be issued visas in time? Would it be constitutionally valid to try someone in absentia?

Not in this case. In the case you cite the defendant absconded during the trial. Under English common law it is only necessary for the defendant to be present in court to actually enter the plea. Once the plea is entered and the trial has begun the trial can complete whether or not the defendant absconds.

This case is very different, the government is preventing the defendants from attending. They are clearly being denied due process and the government is not entitled to prosecute the case in their absence.

While the article is correct that the consular officials have autonomy I very much doubt that this is an accidental occurrence. There is no way the DoJ wants this trial to take place. The FBI would look like complete idiots, particularly when it becomes obvious that Freeh and Ashcroft were more concerned about copyright than terrorism. The whole point of the scheme was to make the incomming AG look like a tough crime fighter aggressively going after the threats to society that Clinton ignored. Thats why the arrest took place July 2001. I predicted that this would happen when the plea agreement was entered.

Stopping the defendants from appearing for the trial is the easiest way to get the case to fade from view with the least possible amount of fuss. Someone from the DoJ will have had lunch with someone from DoS.

The judge may throw the charges out or leave them on file until the statute of limitations expires. I don't know the federal proceedure. It is possible that the charges will be thrown out on other grounds, the jurisdicition claim looks somewhat dubious to say the least. While the US courts does allow for extra-jurisdicitional charges the courts tend to only do so when the act in question explicitly states that it claims to be applicable in foreign jurisdictions.

What might be interesting is if a civil lawsuit was filed against Ascroft as AG claiming that the case was brought to violate Skylarof's civil rights.

Re:Tried in absentia?

[darien]

All EU member states are signatories to the European Convention on Human Rights), which prohibits the death penalty, and forbids acts which might expose individuals to it (such as extraditing them to countries that still practise it). As I understand it, the convention is enforced in the European Court of Human Rights, but many nations have also passed local laws formalising this commitment. I'm afraid I can't find a reference for France, but the situation in the UK is:

The United Kingdom is a signatory to the Sixth Protocol to the European Convention on Human Rights which outlaws the application of the death penalty. Consistent with the convention, the Extradition Act 1989 provides that extradition may be refused if the fugitive stands accused or convicted of an offence for which he could be or has been sentenced to death. The United Kingdom/United States Extradition Treaty also provides that extradition may be refused unless the requesting party gives satisfactory assurances that the death penalty will not be carried out. In practice, US extradition requests involving capital crimes are very rare. Not all US states continue to apply the death penalty. Those which do stand ready in extradition cases to provide assurances that the death penalty will not be carried out.
Source: Written reply to Parliamentary Question asked of Lord Marlesford by Lord Rooker, 8th November 2001

Re:turn about is fair play?

[Planesdragon]

Everyone in the world is held to US laws, EXCEPT US Law Enforcement Officials.

If those said US law enforcemnet officals ever go to Russia, they can expect to be captured, tried (if they're lucky), and jailed.

We've got a good 15-50 years of "supernationalism" until some agreed-upon mechanism for punnishing extra-national criminals is agreed upon. Probably by an extension of the UN War Crimes court into a body to deal with inter-country legal affairs that aren't War Crimes.

To whit; I can get on a boat chartered in China from California, hook up to an international communications system not owned by the USA, hack a server in Japan, go back to the USA, and ignore any legal threats on the basis that no applicable law makes what I did illegal. If I'm out of the country ANYWAY and I've got a good reason, I've got an even better situation.

Until I go to Japan, of course.

(IANAL; if you, knowing that I am not qualified to dispense legal advice, decide to act upon my suggestion, you should also jump into the ocean while you're out there and save the gene pool.)