Expanding the applicability and right to a fair trial
- This last conclusion raises the question of the connection between the expansion of applicability and the right to a fair trial. Does the application of the principles of a legal system outside its usual scope of application, while trapping in its net those who would not ordinarily be caught in it, violate this right? This question has arisen in American law on several occasions, and I will bring a few things about the way it was dealt with there, so that we can adopt some of it into our law.
U.S. law prohibits expanding the application where it violates the basic rights of the person, including the right to due process enshrined in the Fifth Amendment to the U.S. Constitution. It was held:
“As long as Congress has expressly indicated its intent to reach such conduct, ‘a United States court would be bound to follow the Congressional direction unless this would violate the due process clause of the Fifth Amendment’” (United States v. Pinto-Mejia (1983) [102], at p. 259; Emphasis added - E.E.L.).
Those broadening affiliations are the fundamental basis for the constitutionality of the expansion. They establish the "sufficient nexus" between a criminal act and the state, which is required by U.S. case law for the application of extraterritorial law to meet the requirement of due process:
“in order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must be a sufficient nexus between the defendant and the United States... so that such application would not be arbitrary or fundamentally unfair”
(United States v. Davis (1990) [103], at pp. 248-249; Emphasis added - E.E.L.).
The meaning of the phrase "sufficient conspiracy" and its definition have been discussed by the American courts in several cases that mainly related to large-scale drug smuggling. Their examination does not reveal complete uniformity. In one of the cases, it was determined that this demand is based on the principle of state sovereignty and a person's expectation that he will not be exposed to a foreign law. The expansion is therefore justified only when there is a connection between the criminal conduct and the United States to the extent that it justifies the protection of American interests (United States v. Caicedo (1995) [104], at p. 372. In contrast to this relatively broad definition, which seems to allow the application of American law to a very broad spectrum of acts that take place outside the territory, it was held in another case that in order to prove a "sufficient connection", it must be shown that the criminal conduct was known, or should have known, consequences within the territory of the United States (United States v. Kahn (1994) [105], at p. 429, and see also United States v. Klimavicius-Viloria (1998) [106], at p. 1257).
- Whether in its broad definition or in its narrow definition, the requirement of "sufficient connection" is connected to the element of the offender's "voluntary risk." It is based on the assumption that a person whose evil deeds have had an impact in the territory of a foreign country has exposed himself to justice according to its laws, and he can no longer claim that his judgment there is unfair. In this vein, the U.S. Court of Appeals wrote in its hearing of the appeal of foreign nationals convicted of involvement in the 1993 bombing of the World Trade Center in New York and of conspiracy to shoot down an American passenger plane in the Philippines:
“Applying… [the sufficient nexus - E.E.L.] standard, it seems clear that assertion of jurisdiction over the defendants was entirely consistent with due process... Given the substantial intended effect of their attack on the United States and its citizens, it cannot be argued seriously that the defendants’ conduct was so unrelated to American interests as to render their prosecution in the arbitrary or fundamentally unfair. As a consequence, we conclude that prosecuting the defendants in the United States did not violate the Due Process Clause” (United StatesUnited States v. Yousef, supra [73], at p. 112).