Above photo: Michael M. Santiago/Getty Images.
Says It’s ‘Appalled.’
The world’s leading body on human rights ruled that the home detention of the attorney, who won a landmark case against Chevron, violates international law. UPDATE: The Judge Didn’t Listen.
The world’s top human rights legal body just offered a crucial show of support for Steven Donziger, the attorney who won a landmark multibillion-dollar case against an oil giant over pollution in the Ecuadorian Amazon rainforest. The ruling came on the eve of his sentencing in a criminal trial.
On Wednesday, the United Nations High Commissioner on Human Rights ruled that Donziger’s home detention is illegal under international law and called on the U.S. to release him. Donziger will have spent an unprecedented 787 days on house arrest as of Friday in what is one of the most winding and wild court cases that spans multiple countries and involves Chevron and thousands of Indigenous people in the Amazon.
Donziger led a lawsuit against the oil company on behalf of 30,000 Indigenous people and peasant farmers in the Amazon for creating what has been called the Amazon’s Chernobyl in terms of industrial pollution. In 2013, he won a $9.5 billion judgment against the energy firm in Ecuadorian courts—the largest human rights and environmental court judgment in history. Yet Chevron refused to pay up and instead focused on attacking the attorney in court. In 2019, he was placed on home detention by a judge with an industry-friendly record who was handpicked to preside over the proceedings. Throughout the trial, Donziger has been on house arrest, before eventually being found in contempt of court.
The attorney now faces up to six months in prison for his refusal to obey a judge’s order to turn over his phone, laptop, and other electronic devices to Chevron, on top of the two-plus years on house arrest he’s already been through. (Donziger said complying would have violated his clients’ rights to privacy.)
“The Working Group is appalled by uncontested allegations in this case,” six international jurists wrote in the 15-page report that forms the basis for the UN’s declaration. “The charges against and detention of Mr. Donziger appears to be retaliation for his work as a legal representative of indigenous communities, as he refused to disclose confidential correspondence with his clients in a very high profile case against multi-national business enterprise.”
The report goes on to call Donziger’s home detention “arbitrary” and found that it violated provisions of international law including the rights to a fair trial and a fair judge. The body urged the U.S. government to free him and compensate him for the damages.
“Taking into account all the circumstances of the case, the appropriate remedy would be to release Mr. Steven Donziger immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law,” the working group, which is comprised of five international jurists, said.
“This is an extremely significant and courageous decision by five international jurists who confirm what we have been saying for over two years: Steven Donziger has been subject to an illegal detention orchestrated by Chevron and two ideologically driven trial judges who are retaliating against him for winning a major pollution judgment in Ecuador against a powerful U.S. corporation,” Martin Garbus, an attorney representing Donziger, said in a statement.
Many factors make the criminal charges against Donziger highly unusual. They were brought not by the state, but by a private prosecutor, Rita Glavin. U.S. District Court Judge Lewis Kaplan, who presided over a 2012 RICO case against Donziger, appointed Glavin to bring the charges after public prosecutors refused to do so, a move previously unheard of in the American judiciary. Further, until recently, Glavin worked at a firm that counted Chevron as a client.
Kaplan also handpicked Judge Loretta Preska to oversee Donziger’s contempt trial, going against the court’s standard process of random assignment. This “allegedly bypassed Rule 16 of the [Southern District of New York] Rules for the Division of Business Among District Judges, which states ‘the assignment committee shall transfer the case by lot,’” the UN working group wrote. Preska serves as an advisor to the pro-business Federalist Society—to which Chevron is a major donor—and has a history of ruling in favor of oil companies in court.
In addition to his release, the UN is calling for the U.S. to undertake a comprehensive, independent investigation into the legal attacks on Donziger and to “take appropriate measures against those responsible for the violation of his rights.” The body also said the government should remove both Preska and Kaplan from the proceedings, saying they displayed a “staggering lack of objectivity and impartiality.”
Garbus and lawyer Ron Kuby, who co-lead Donziger’s legal team, will now file the UN ruling to Judge Preska and urge her to release him before Friday morning’s sentencing hearing. The lawyers will also ask the government to comply with the rest of the UN’s recommendations.
“At a minimum, that will involve removing Judges Preska and Kaplan, releasing Steven, dismissing the charges, and investigating how this type of corporate abuse of our judicial system could have happened,” said Garbus in a statement.
If Preska ignores the UN decision, the lawyers will take the case to the Department of Justice and urge them to demand Donziger’s release. But in the meantime, Donziger is still on home detention. His supporters are planning a Friday rally outside the New York City federal courthouse ahead of his sentencing trial.
“We must continue to fight,” Donziger said on Twitter. “See u tomorrow!”
Update, 8/01/21, 3:45 p.m. ET: Despite the UN’s request, on Friday, Judge Preska sentenced Steven Donziger to the maximum sentence of six months jail. Donziger’s legal team plans to immediately file an appeal. Pending that appeal, Preska denied the attorney bail.
While awaiting a decision on his appeal, the attorney can now choose to stay on house arrest or begin serving his jail time to reduce it. At the hearing, Preska also said that Donziger would not gain any respect for the law unless he were hit with a “proverbial two-by-four between the eyes.”
“The saga of Chevron’s perversion of the law and denial of justice for the people of Ecuador reached a new chapter as Donziger was even denied bail pending appeal of the decision,” Amazon Watch, an organization focused on protecting the Amazon rainforest that has been supporting the Ecuadorian plaintiffs in the case against Chevron, wrote in a statement.
The organization pledges to continue to fight for Donziger’s release, including by calling on the White House.
“Considerable pressure will continue to mount on the Biden Administration to intervene and put an end to the farce that has placed the rights and profits of the second largest oil company in the US – Chevron, over those of affected communities and their advocates,” Amazon Watch said.