International Arbitration Wednesday, August 5, 2020
Hamit Cicek had a very serious legal problem. The odds against him were long, and if he did not get the right representation in a New Jersey U.S. District Court civil action, he faced a potential life imprisonment sentence in his homeland of Turkey. The law firm that was representing the Republic of Turkey is one of the world’s largest and most powerful, and boasts of having approximately 1,200 attorneys in 22 offices worldwide. Several of the international firm’s partners, who were bent on using all their resources to support Turkey’s efforts against Mr. Cicek, were assigned to the case. Needing an attorney capable of standing up to this well-known international firm and its powerful client, Mr. Cicek called Ronald A. Berutti, a Member of the Weiner Law Group, who specializes in complex civil litigation. Today, Mr. Cicek is breathing easier. As has been reported in international legal publications including Law 360 and the Global Arbitration Review, on July 17, 2020, Ron’s legal work struck a blow to Turkey’s current regime. Ron protected Mr. Cicek against Turkey’s efforts to force him to provide potentially incriminating testimony and documents, when Honorable Esther Salas, U.S. District Judge, sided with Ron and Mr. Cicek against Turkey and its powerful international law firm.Mr. Cicek was granted political asylum in the United States in 2019, after having been adjudicated to be a persecuted person by the U.S. Department of Homeland Security. Like hundreds of thousands of other Turkish citizens around the world who are falsely labeled ‘enemies of the state’ by the regime of Turkish President Recep Tayyip Erdogan, due to their alleged support of moderate Islamic cleric Fethullah Gulen (who has lived peacefully in exile in the U.S. since 1999), Mr. Cicek was charged by Turkey with various terrorism-related crimes. The United States, the United Kingdom, the European Union, and the United Nations all have rejected Turkey’s claims that Mr. Gulen and his alleged supporters are ‘terrorists’. Still, if proved, the charges pending against Mr. Cicek in Turkey could result in his being convicted of crimes carrying a sentence of life imprisonment, or worse, and could also result in the permanent confiscation of all of his assets within Turkey.
Of further great concern for Mr. Cicek, well-regarded international human rights organizations have reported wide scale torture of alleged supporters of Mr. Gulen within Turkish prisons. Meanwhile, since July 2016, Turkey has purged the judiciary and police force of those who are believed to be supporters of Mr. Gulen. Thus, Mr. Cicek would likely be incapable of receiving a fair trial in Turkey for the terrifying politically-motivated charges against him. Certainly, Mr. Cicek did not want to be compelled by a U.S. District Court to supply Turkey with any evidence which may aid in its prosecutorial efforts against him, although he has asylum in the United States. But with a subpoena in hand compelling his testimony allegedly in aid of an international civil arbitration, Turkey had pushed Mr. Cicek into a corner and was throwing enormous resources against him, using one of the world’s most powerful law firms to press its case against him. One U.S. Magistrate Judge had already issued Turkey an Order permitting the subpoenas for documents and testimony from Mr. Cicek. It was at that moment where Mr. Cicek retained Ron to stand in his corner to help him fight his way out.
Ron has been practicing law for over 27 years. As a young attorney, a very seasoned trial attorney taught him a lesson about how lawyers should handle difficult situations in complex litigation that has stuck with him ever since: “Never stop swinging.” In assessing the case, Ron learned that Turkey’s attorneys had obtained the Order permitting the subpoenas without any notice of the proceedings being given to Mr. Cicek. Such procedure, known as an ex parte filing, was permitted under 28 U.S.C. § 1782, the statute which permits litigants in foreign proceedings to seek an Order from the U.S. District Court compelling testimony of individuals living within the U.S. to aid in a foreign legal proceeding. However, when obtaining the ex parte Order, the attorneys for Turkey did not disclose that their client had criminal charges pending against Mr. Cicek in Turkey. Under the circumstances, a cord of injustice was struck from the Republic of Turkey’s initial filings in the U.S. District Court.
Turkey claimed it was seeking information from Mr. Cicek only for use in an international arbitration related to Mr. Cicek’s sale of shares of a newspaper company prior to his being forced to flee his Turkish homeland. The newspaper was one of the hundreds of newspapers, television stations, radio stations, and websites that Turkey shut down in its crackdown against alleged supporters of Mr. Gulen. After Turkey shut down the newspaper, the Belgian company that purchased Mr. Cicek’s shares sued Turkey in arbitration for over $100 million–far more than it had paid Mr. Cicek for the shares. Turkey claimed that the sale was a sham, and advised that U.S. District Court that it was seeking Mr. Cicek’s testimony and related documents in support of its claim in arbitration. However, as noted, when making its ex parte petition for the Order, Turkey and its attorneys failed to disclose to the U.S. Magistrate hearing their petition that the documents and testimony they were seeking could also aid in prosecuting Mr. Cicek for pending criminal charges in Turkey.
When Turkey obtained the ex parte Order from a U.S. Magistrate which permitted Turkey to serve subpoenas compelling his testimony and document production, Mr. Cicek’s life was thrown into turmoil. After receiving an Order of Asylum in 2019 from the U.S. Department of Homeland Security due to Turkey’s persecution, Mr. Cicek believed that he could settle peacefully in New Jersey, away from the reach of Turkish legal authorities. Consequently, Mr. Cicek was rightfully alarmed and sought Ron’s help when he was served with the subpoenas, since the pending criminal charges in Turkey carried a potential sentence of life imprisonment, or worse.
Ron immediately got to work fighting for Mr. Cicek. In Court filings, Ron demanded that the U.S. Magistrate vacate the Order permitting the subpoenas, arguing that Turkey and its attorneys were required to inform the Court of Turkey’s pending criminal charges when seeking the Order, so that a full assessment of the discovery request could be made. The statute indicates that documents and testimony may not be obtained to aid in the prosecution of pending criminal charges by a foreign government. The statute also provides that no person can be compelled to give testimony against himself when that person has a legitimate right against self-incrimination. While the United States Constitution’s Fifth Amendment does not extend the right against self-incrimination to cases where a party’s U.S. testimony may incriminate him in a foreign criminal proceeding, Ron provided evidence that the Turkish Constitution provides Mr. Cicek with such a right. As a result, Ron argued that Turkey cannot be permitted to require Mr. Cicek to provide testimony and documents which may potentially aid Turkey’s criminal prosecution of him.
Even though when responding to Ron’s arguments Turkey was forced to admit that the information it sought for the international arbitration likely would also be used by Turkey in prosecuting Mr. Cicek, the U.S. Magistrate rejected Ron’s arguments. The statute is very broad, and almost no cases can be found where discovery has been denied under the statute. Thus, the U.S. Magistrate entered a new Order compelling Mr. Cicek to provide the documents and testimony being sought by Turkey. But Ron did not stop swinging. On Mr. Cicek’s behalf, he appealed to U.S. District Judge Esther Salas, and argued that only a U.S. District Judge (as opposed to a U.S. Magistrate Judge, who essentially acts as an assistant to the U.S. District Judge) has the jurisdiction to make such a ruling under the circumstances presented. Judge Salas agreed, and vacated the U.S. Magistrate’s prior Orders. Mr. Cicek was out of his corner. But the fight was not over, since Judge Salas invited Turkey to file a new petition seeking such information upon which she would rule.
The mighty Turkish government and its powerful law firm then filed such a petition with Judge Salas. Mr. Cicek was back to square one. But now, Ron was able to make the arguments for Mr. Cicek from the center of the ring, rather than from the corner in which he first started defending Mr. Cicek. Thus, Ron presented arguments to Judge Salas that Mr. Cicek’s case was very different from the usual types of cases that U.S. District Courts have seen in the past under the statute, since Turkey’s request had a dual purpose: not only would Turkey use information obtained from Mr. Cicek in the international arbitration, but it also would likely use such information in aid of its criminal prosecution of Mr. Cicek, as Ron had forced Turkey to admit. Ron also presented volumes of documentary evidence which highlighted Turkey’s persecution of its own citizens who allegedly supported Mr. Gulen, and the free world’s rejection of Turkey’s position that such individuals are terrorists. Although Turkey’s attorneys presented the last word in arguments, Judge Salas agreed with Ron that Mr. Cicek’s rights under the Turkish Constitution against providing self-incriminating testimony and documents would be violated if Turkey prevailed. Consequently, Judge Salas dismissed Turkey’s petition. With Ron in his corner, Mr. Cicek swung his way out and delivered a legal knockout blow to Turkey and the Erdogan Regime. Despite the long odds, and after months of hard fought litigation, justice for Mr. Cicek finally was served. Mr. Cicek was again able to live peacefully in the New Jersey without fear of having to assist Turkey in its prosecution of him.
While being pleased with the result and the positive impact it has on Mr. Cicek, on another and sadder note, Judge Salas rendered the decision only days before she and her family were the victims of a senseless attack at her home by a gunman. The thoughts and prayers of the entire Weiner Law Group are with Judge Salas and her family with respect to the loss of her beloved son, and for the complete and speedy recovery of her husband, who was seriously injured in the attack. There is no place for any violence in our nation of laws, and the Weiner Law Group firmly believes that violence against women, which apparently motivated the attack, can never be tolerated.
About the Author
Ron Berutti, Esq. is a Partner at Weiner Law Group LLP in the Litigation Group. He specializes in complex litigation in the federal and state courts of New Jersey, New York, and Kentucky, where he holds law licenses. He has successfully tried complex cases before juries to verdict, and has argued appeals in some of the nation’s highest courts.