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Lynette Schultz appeals the trial courts denial of her motion for change of judge in a post-dissolution proceeding. Schultz raises one issue, which we restate as whether the trial court properly vacated its prior order granting Schultzs motion for change of judge and resumed jurisdiction of the case after finding that the striking of the judges had not been timely completed as required under Indiana Trial Rule 79. We affirm.
The relevant facts follow. Schultz filed a motion for change of custody on March 25, 2002. On April 5, 2002, Schultz moved for a change of judge. On April 11, 2002, the trial court granted Schultzs motion and appointed a panel of three judges from which each party was ordered to strike one name within fourteen days. That same day, the trial court clerk sent a copy of the trial courts order to counsel for each party. On April 24, 2002, Schultz struck one of the judges from the panel. Wolfe did not file a motion to strike a judge, and Schultz did not request the clerk to strike a judge for Wolfe. On May 1, 2002, the trial court vacated its order granting Schultzs motion for change of judge and resumed jurisdiction. Schultz filed a motion to vacate the trial courts order resuming jurisdiction, which the trial court denied.
Thereafter, the trial court held a hearing on Schultzs motion for change of custody and denied her motion. Schultz filed a motion to correct error from the trial courts denial of her change of custody motion. The trial court held a hearing on Schultzs motion to correct error, and the motion was denied.
In this appeal, Schultz only challenges the trial courts order vacating the change of judge order and resuming jurisdiction of the case. She does not challenge the trial courts denial of her change of custody motion or the denial of her motion to correct error.
The sole issue is whether the trial court properly vacated its prior order granting Schultzs motion for change of judge and resumed jurisdiction of the case after finding that the striking of the judges had not been timely completed as required under Indiana Trial Rule 79. A ruling on a motion for change of judge rests within the sound discretion of the trial court and will be reversed only upon a showing of an abuse of that discretion. Carter v. Knox County Office of Family and Children, 761 N.E.2d 431, 434 (Ind. Ct. App. 2001).
(D) Agreement of the parties. Within seven (7) days of the order granting a change of judge or an order of disqualification, the parties may agree to an eligible special judge. The agreement of the parties shall be in writing and shall be filed in the court where the case is pending. Alternatively, the parties may agree in writing to the selection of an eligible special judge in accordance with Section (H). Upon the filing of the agreement, the court shall enter an order appointing such individual as the special judge in the case and provide notice pursuant to Trial Rule 72(D) to the special judge and all parties or appoint a special judge under Section (H).
(F) Selection by Panel. In the event a special judge is not selected under Sections (D) or (E) of this rule, this section shall be used for the selection of a special judge.
(1) Naming of Panel. Within two (2) days of deciding that a special judge must be appointed under this section, the judge before whom the case is pending shall submit a panel of three persons eligible under Section J to the parties for striking. In the event the judge before whom the case is pending is unavailable to submit the panel, the regular judge of the court where the case is pending shall submit the panel to the parties.
(2) Striking From Panel. In an adversary proceeding, each party shall be entitled to strike one judge from the panel. In an ex parte proceeding, the sole party shall be entitled to strike one judge from the panel.
The moving party shall be entitled to strike first. The parties shall have not less than seven (7) days nor more than fourteen (14) days from the time the clerk mails the panel to the parties to strike as the court may allow.
(3) Failure to Strike. If the moving party fails to timely strike, the judge who submitted the panel shall resume jurisdiction of the case. If the case is an ex parte proceeding or if a non-moving party fails to timely strike, the Clerk of the Court shall make the final strike.
Schultz argues that the trial courts resumption of jurisdiction was improper. Specifically, Schultz contends that the fourteen-day striking period under Trial Rule 79(F) had not yet expired when the trial court entered its order resuming jurisdiction because: (1) the trial court did not allow the parties seven days to agree to a change of judge under Trial Rule 79(D) before it appointed the panel of judges; and (2) the trial court should have computed the fourteen-day striking period from the date Schultz actually received the order because the chronological case summary (CCS) is deficient of any notice of when the trial court clerk sent the order to her. Appellants Brief at 16.
First, we address Schultzs argument that the trial court erred by not allowing the parties seven days to agree on a change of judge under Trial Rule 79(D). Trial Rule 79(D) allows that the parties may agree to an eligible special judge within seven days of an order granting a change of judge. Here, the trial court granted Schultzs motion for change of judge and, at the same time, appointed a panel of three judges from which each party was ordered to strike one name within fourteen days. Schultz contends that the trial court should have waited seven days for the parties to fail to agree to a judge before it appointed a panel of judges under Trial Rule 79(F). Schultz argues that because the trial court did not give the parties seven days to agree on a special judge, then she should have gotten an additional seven days to complete the striking process. Schultzs argument is without merit.
Our supreme court addressed a similar matter in State ex rel. Bickel v. Lake Superior Court, 239 Ind. 388, 158 N.E.2d 161 (1959). There, the trial court granted a motion for change of venue and, at the same time, named a panel of three counties. Bickel, 158 N.E.2d at 163. Neither party objected to the common and convenient practice of naming the counties at the time the motion was granted. Id. On appeal, the movant argued that the trial court erred by not allowing the parties the three-day period under the trial rules to agree to new county. Id. Our supreme court held that there was sufficient compliance with the rule and that the movant had waived any such argument on appeal because the movant had failed to object to the trial courts action at the time it granted the motion and assigned the panel. Id. Our supreme court concluded that the movant had the duty to make known [her] objections to the trial court and not remain silent at that time, thus giving it an opportunity to correct any claimed error. Id.
Like the trial court in Bickel, the trial court here granted Schultzs motion for change of venue from the judge and, at the same time, appointed a panel of three judges. Neither party objected to the trial courts act of simultaneously appointing a panel when granting the motion for change of judge. Just as in Bickel, the trial courts act of naming a panel when granting the motion sufficiently complied with the rule. See id. Furthermore, Schultz has waived any such argument on appeal by failing to object to the trial courts action at the time it granted the motion and assigned the panel. See id.
Next, we address Schultzs argument that the trial court should have computed the fourteen-day striking period from the date she actually received the order because the CCS is deficient of any notice of when the trial court clerk sent the order to her. On April 11, 2002, the trial court granted Schultzs motion for change of judge, appointed the panel of judges, and gave the parties fourteen days to complete the striking process. That same day, the trial court clerk sent a copy of the trial courts order to counsel for each party. Schultz claims to have received the trial courts order on April 17, 2002. Schultz filed her motion to strike a judge on April 24, 2002. Wolfe did not file a motion to strike a judge, and Schultz did not request the clerk to strike a judge for Wolfe. On May 1, 2002, the trial court vacated its order granting Schultzs motion for change of judge and resumed jurisdiction.
Schultz acknowledges that she, as the movant of the motion for change of judge, had the burden of making a timely request to the trial court clerk to strike for the non-movant, Wolfe, after he failed to strike a name from the panel. See State ex rel. Smith v. Lake Superior Ct., 531 N.E.2d 213 (Ind. 1988); Pruden v. Trabits, 175 Ind. App. 219, 370 N.E.2d 959 (1977). Schultz also recognizes that the fourteen-day striking period usually runs from the day that the trial court clerk mails a copy of the trial courts order to the parties. See Trojnar v. Trojnar, 698 N.E.2d 301, 303 (Ind. 1998). Schultz argues, however, that the time to file a request with the trial court clerk had not yet expired because the CCS did not reflect the date that the trial court clerk sent notice of the trial courts order. Specifically, Schultz contends that because the CCS was deficient of any notes that would give any clear indication of when the April 11, 2002 order from the court [granting the change of judge] was mailed. Appellants Brief at 18. Thus, Schultz argues that the trial court should not have started the running of the fourteen-day striking period on April 11, 2002, but instead should have commenced it on April 17, 2002, the day she claims to have received notice of the trial courts order. To support her argument, Schultz cites to State ex rel. Sargent and Lundy v. Vigo Superior Ct., 260 Ind. 472, 296 N.E.2d 785 (1973).
In Sargent, the trial court granted a motion for change of venue and named a panel of counties from which each party was to strike a county. Sargent, 296 N.E.2d at 786. The movant did not receive notice of the trial courts order, but he learned of it when he saw a copy of a co-defendants order, which was postmarked five days after the trial court granted the motion. Id. The trial court resumed jurisdiction after the movant failed to strike a county within the requisite striking period, which the trial court calculated from the date it granted the change of venue motion. Id. The movant appealed, arguing that the trial courts resumption of jurisdiction was premature because the trial court should have started the running of the striking period from the postmarked date of the order. Id. The trial court argued that its computation of time from the date of granting the order was correct because the trial courts journal record or minute book showed that the order had been mailed to the parties on the day the order was granted. Id.
Our supreme court held that the trial courts resumption of jurisdiction was premature. Id. Our supreme court held that the trial courts minute book, which contained only a check mark with a circle around it, contained no written statement that notice was given to the parties, and was not kept by the trial court clerk, was insufficient to reflect the date that the trial court clerk mailed the order to the parties. Id. at 787. Our supreme court also noted that the trial courts docket, which was kept by the trial court clerk, did not contain any notice that the trial courts order had been sent to the parties. Id. at 786. Therefore, our supreme court held that the time for the movant to complete striking should have been calculated from the date that the trial court clerk sent the order, or five days after the trial court granted the order, which was evidenced by the postmarked date of the co-defendants order. Id. at 786-787.
Order entered granting Motion for Change of Venue from Judge. Panel named: Honorable King, Honorable Wayne Steele, and Honorable Michael Shurn. Order. RJO. Copy to counsel.
Appellants Appendix at 3 (emphasis added). Thus, the CCS sufficiently reflects that the trial court clerk sent a copy of the trial courts order and the panel to counsel for each party on April 11, 2002, the same day that the trial court granted the order. See, e.g., Collins v. Covenant Mut. Ins. Co., 644 N.E.2d 116, 118 (Ind. 1994) (finding that a CCS entry of 1/31/91 Notice Y, which preceded a description of the trial courts order and entry was sufficient to show that clerk had mailed notice of that order and entry). Therefore, we reject Schultzs argument that the CCS was deficient of any notice of when the trial court clerk sent the order to her and reject her argument that the trial court should have computed the fourteen-day striking period from the date Schultz actually received the order. Consequently, the trial court did not abuse its discretion when it vacated its prior order granting Schultzs motion for change of judge and resumed jurisdiction of the case.
For the foregoing reasons, we affirm the trial courts order vacating its prior order granting Schultzs motion for change of judge and resuming jurisdiction of the case.
While I agree that my colleagues have correctly recounted the present state of the law in this instance, I write separately to express my views regarding the pitfalls that are inherent as the result of todays decision. In the circumstances presented here, Schultz maintains that she did not receive the order appointing the panel until April 17, 2002. Her act of striking one of the judges on the thirteenth day before the period was to expire, in effect, afforded Wolfe no time to respond and strike one of the panel members before the original court resumed jurisdiction.
Such a result is troubling because the provisions of T.R. 79 effectively invite a certain amount of justice by ambush and perpetuate a rule that simply encourages a race to the courthouse in some instances. As Justice Dickson observed in his dissent in State ex rel. Smith v. Lake Superior Ct., 531 N.E.2d 213, 215 (Ind. 1988), a case involving the change of venue requirements under T.R. 76, a party charged with responding to such a motion might avoid participation in the striking process until the expiration of the time period and race to the courthouse the next morning to file a motion to reassume jurisdiction. Similarly, the movant might join the race and seek to precede his opponents motion by first filing his request for the clerk to strike.
The same problems persist in cases that involve a change of judge under T.R. 79. Simply put, the present state of the law creates the potential for inviting intolerable gotcha litigation tactics. See Wilson Fertilizer & Grain, Inc. v. ADM Mill. Co., 654 N.E.2d 848, 856 (Ind. Ct. App. 1995) (Kirsch, J., concurring and dissenting) (disagreeing with the majoritys application of the law to the facts enabling appellee-defendant to play and win the latest version of Legal Gotcha and receive goods that it had ordered without paying for them); Salcedo v. Asociacion Cubana, 368 So.2d 1337, 1339 (Fla. Dist. Ct. App. 1979) (condemning gotcha litigation tactics); Thomas v. City of Miami Beach, 753 So. 2d 591, 591 (Fla. Dist. Ct. App. 2000) (disapproving of gotcha administrative practices); see also In re Marriage of Tearman, 617 N.E.2d at 977 (observing that the purpose of permitting a credit against the non-custodial parents basic support obligation for educational support costs is to avoid double payment of the same expense resulting in a windfall for the custodial parent).
That said, it is apparent to me that the only alternative available to avoid such tactics in cases involving the striking process under T.R. 79, is for the moving party to tender a motion to the clerks office simultaneously with the first strike and request the clerk to strike one of the judges if the opposing party does not do so in a timely fashion. In the event that the moving party does not undertake such a corrective measure, the various gotcha litigation techniques that have been condemned by our courts may become more commonplace in T.R. 79 cases as the rule is currently written and interpreted.

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The company mediahelden GmbH, Theodor-Lipps-Str. 4, 80997 Munich (hereinafter referred to as "mediahelden") operates an online wallet configurator on the Internet under the URL www.passcreator.com, which customers can use to configure wallet passes (digital tickets, coupons, vouchers, customer cards) for smartphones and then make them available to their (end) customers. The customer is enabled to use the software stored and running on the servers of mediahelden or a service provider commissioned by mediahelden via an Internet connection during the term of this contract for his own purposes and to store and process his data with the help of the software.
1.1. The use of the online portal offered by mediahelden at www.passcreator.com by the customer is subject exclusively to these General Terms and Conditions ("GTC") in the version valid at the time of registration. The GTCs can be called up online at any time.
1.2. Individual contractual agreements take precedence over these GTC. General terms and conditions of the customer shall not apply in this context, regardless of whether mediahelden expressly objects to them.
1.3. The GTC shall also apply to contracts concluded with customers from countries other than Germany.
1.4. The offer of mediahelden under www.passcreator.com is directed exclusively at businesses. Businesses within the meaning of these terms and conditions are natural or legal entities or partnerships with legal capacity who, when concluding the legal transaction, act in the exercise of their commercial or self-employed professional activity. In the following they are referred to as "customers".
1.5. In order to be able to use the offering of mediahelden under www.passcreator.com to the full extent, the possession of a so-called Apple developer account (https://developer.apple.com/ ) is a prerequisite. This is required to create the corresponding certificate and Pass-Type-ID.
2.1. To use the online portal at www.passcreator.com for the creation of so-called Wallet passes, the conclusion of a usage contract between the customer and mediahelden is a prerequisite. The necessary registration as a customer is done by submitting the online application form at www.passcreator.com.
2.2. Registration may only be made by businesses within the meaning of section 1.4 of this document and only in their own name. There is no right to register.
2.4. The data requested during registration must be complete and correct. The customer is solely responsible for the completeness and correctness of this information. Input errors during the login process can be corrected at any time by clicking on the "Back" button marked with an arrow pointing to the left in the browser and then making the corresponding change. You can cancel the entire sign up process at any time by closing the Internet browser.
2.5. By submitting the sign up form, the customer makes a binding offer to conclude a contract regarding the use of the online portal at www.passcreator.com for the stated number of users (licenses). This is done by clicking the button "Register now" when registering for the free version and by clicking the button "Complete registration with costs" for the paid versions. The customer will then receive a confirmation e-mail from mediahelden, in which he will also be asked to verify his registration by clicking on a link. Only after this verification the contract of use between the customer and mediahelden comes into effect and the customer can use the available offering of the Internet portal of www.passcreator.com.
2.6. If and to the extent that the customer provides one or more users with personal data (e.g. personalized e-mail addresses) during registration in order to obtain the desired number of licenses, he expressly agrees to conclude the data processing agreement in addition to these GTC in accordance with Art. 28 para. 3 of the European General Data Protection Regulation (GDPR) of mediahelden. This is already available upon registration and then also in the customer area under "Data processing agreement" and becomes part of the contractual relationship between the parties through acceptance by the customer or user.
2.7. "User" means any natural person who is entitled to use the Software in accordance with these GTC. Only persons who are in an employment, work or training relationship with the customer at the time the contract is concluded may be entitled. Direct or indirect use by other persons is not permitted. The customer assures to have obligated every user to comply with these terms and conditions and releases mediahelden from all claims in this respect.
After successful registration, the customer can change the ordered version to another version and/or order further chargeable services under "Additional options" via the menu item "Account settings" and there under "Change pricing plan". By confirming the button "Order with costs" the customer then submits a binding offer to conclude a modified/extended usage contract. The customer will then receive a confirmation e-mail from mediahelden, in which he will also be asked to verify his registration by clicking on a link. Only after this verification the modified/extended usage contract between the customer and mediahelden comes into effect and the customer can use the corresponding offers of the www.passcreator.com Internet portal.
2.9. The contract text is stored by mediahelden and sent to the customer together with these general terms and conditions together with the confirmation e-mail.
3.1. The customer can create a wallet pass according to his ideas and requirements on the portal at www.passcreator.com and then make it available to his customers for example as digital tickets, coupons, vouchers or customer cards for use on the smartphone.
3.2. The pricing plans differ in the number maximum number of active passes that can be used. The current prices can be viewed at https://app.passcreator.com/customer/register. An active pass is a version of a pass stored on a smartphone. A pass can be saved multiple times.
3.3. The number of passes that can be created by the customer is limited to ten times the number of active passes booked. If this number is exceeded, mediahelden has the right to delete passes exceeding the limit after the customer has been offered another subscription.
3.4. In addition, the customer has the option of ordering and subsequently using further chargeable additional options within the scope of his account settings.
3.5. The created pass can be sent by the customer to his customers by e-mail and/or via a so-called landing page at www.passcreator.com. In addition, the pass can be offered by the customer on his website for download or made available via so-called API call.
4.1. The prices quoted are net prices excluding value-added tax.
4.2. Payment is made on account. Invoices are issued monthly.
5.1. mediahelden makes every effort to ensure an undisturbed service. Nevertheless, it cannot be ruled out that there may be functional interruptions, especially in the event of overload or technical faults. mediahelden endeavours to restore functionality as quickly as possible but cannot guarantee trouble-free operation.
5.2. mediahelden is entitled to put individual services of the online portal or the online portal at www.passcreator.com completely or partially offline, provided this is necessary for maintenance and repair purposes and reasonable for the customer.
6.1. During registration, the customer must specify a password for his customer account in addition to his e-mail address. The customer must ensure that his credentials (in particular the password) can’t be accessed by third parties. In particular, he is also prohibited from making the credentials available to third parties without the corresponding written consent of mediahelden. For his own protection and security on the Internet, the customer must change his password at regular intervals.
6.2. The customer is obliged to inform mediahelden immediately about any misuse of his password or customer account as well as any other violation of security regulations. He is liable to mediahelden for misuse of his customer account caused or permitted by him.
6.3. The customer is obliged not to use the mediahelden Internet platform at www.passcreator.com for purposes other than those described in section 3.
6.4. Furthermore, the customer is obliged to use the services offered at www.passcreator.com only in such a way that it does not violate any rights of third parties, personal rights of others or other laws and regulations. In particular, he must observe the regulations listed below under item 7.
7. Contents of the created wallet passes and the so-called landing page.
7.1. The customer is informed that as the sender of advertising e-mails and as the operator of a landing page, he must observe certain legal regulations. In this context, mediahelden refers the customer in particular to the Telemediengesetz (TMG) and the imprint obligation contained therein as well as the provisions of § 7 UWG.
7.2. Furthermore, the customer is expressly informed that the contents published in the context of the Wallet passes as well as on the so-called landing page may not violate applicable law, official orders or morality. In particular, the customer may not use the services of mediahelden under www.passcreator.com for: storing, publishing and/or transmitting data, texts, images, videos, files, links, software or other content which is illegal, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, racist or in any other way objectionable under the relevant legal provisions or which can cause damage in any way, in particular pornographic, glorifying violence or otherwise endangering minors; Storing, publishing and/or transmitting content that infringes the rights of third parties, in particular patents, trademarks, copyrights or ancillary copyrights, trade secrets, personal rights or property rights; storing, publishing and/or transmitting content that contains software viruses or other information, files or programs that are intended to interrupt, destroy or restrict the functioning of computer software or hardware or telecommunications devices; Storing, publishing and/or transmitting content that they are not authorized to distribute; impersonating another person, falsifying data or otherwise manipulate identifiers to disguise the origin of content transmitted as part of the offer; storing, publishing and/or transmitting unsolicited advertising, promotional material, junk or mass e-mails ("spam"), chain letters, pyramid schemes or other advertising; violating national or international laws in connection with the use of mediahelden offerings; harassing, insulting, threatening, defaming, distressing or embarrassing anyone, be it a natural or legal entity or a company; claiming or disseminating false facts in relation to a natural or legal entity or a company; collecting, storing or transmitting personal data about other users if the persons do not agree.
7.3. Furthermore, the customer is expressly advised that he must comply with Apple's terms and conditions for Apple developers. In particular, according to these, the customer is also obliged to ensure that the customer's contact information (e-mail and telephone number) must be displayed on the Wallet passes.
7.4. Should the customer violate applicable law with a created Wallet pass and/or through the contents on the so-called Landing Page, mediahelden is entitled to withdraw the issued license from the customer and to block the corresponding Wallet passes and/or the corresponding Landing Page in this respect.
7.5. The responsibility for all content published by the customer within the framework of the Wallet passes and via a landing page lies exclusively and without restriction with the customer, i.e. the customer has to bear the sole, exclusive and unlimited responsibility for this content.
7.6. mediahelden does not control contents posted by the customer and therefore does not guarantee the correctness, appropriateness and quality of such contents.
7.7. mediahelden stores and publishes the contents entered by the customer only during the duration of the contractual relationship. After completion of this contract, the data will be deleted.
7.8. If the justified suspicion of a violation of these regulations, in particular 7.2, mediahelden has the right to terminate the customer account and/or to block the affected contents according to clause 9.
The customer indemnifies mediahelden regarding claims or claims of any kind on first demand and holds mediahelden harmless from these claims which third parties assert against mediahelden due to the violation of their rights due to contents that the customer stores, publishes and/or transmits in the context of the online portal of www.passcreator.com. This also includes the reimbursement of the legal defense costs incurred in the amount of the statutory fees.
9.1. The usage contract is initially concluded for a period of one month. It will be extended by a further month automatically unless it is terminated by one of the parties two weeks before the end of the respective contract.
9.2. Cancellation by the customer is possible by clicking the button "Account cancellation" in his user account under the menu item "Customer settings" on the Internet platform www.passcreator.com and subsequent confirmation of the cancellation. A cancellation by mediahelden is done via e-mail to the e-mail address given by the customer.
9.3. mediahelden reserves the right to delete information from the system, to revoke a customer’s access or to reject the registration or to temporarily block the customer's access in whole or in part if the customer uses the online portal at www.passcreator.com illegally or violates the present General Terms and Conditions, in particular the obligations contained in sections 6 and 7 of these General Terms and Conditions. The customer will be informed immediately by mediahelden by e-mail of a withdrawal of the access or the rejection of the registration as well as the blocking of access. In case of violation of applicable laws, mediahelden is entitled to pass on the relevant information to the responsible state authorities.
10.1. The created digital passes remain the property of mediahelden until the complete payment has been received.
10.2. With the assertion of the retention of title, the customer's right to reuse/sell the created Wallet passes expires.
11.1. mediahelden holds the rights to the database and the contents of the website at www.passcreator.com, which have been created by mediahelden. With the exception of the content entered by the customer, all copyrights, trademark rights or other protective rights to the database, the content, data and other elements - unless otherwise identified - are exclusively entitled to mediahelden. This shall not affect any rights of the customer to the content posted by the customer.
11.2. mediahelden grants the customer and/or its users the simple, non-transferable right for the duration of the contract to use the offerings available on the Internet portal under www.passcreator.com in the according to this contract.
12.1. mediahelden assumes no liability for direct or indirect damages, as far as these are not based on intent or gross negligence. This exclusion of liability also extends to the liability of the employees, legal representatives and vicarious agents of mediahelden. The liability due to properties/guarantees guaranteed by mediahelden or due to product liability remains unaffected.
12.2. The liability of mediahelden due to slight negligence is only assumed insofar as it concerns the violation of obligations, the fulfilment of which is essential for the proper execution of the contract, the violation of which endangers the achievement of the purpose of the contract and on whose compliance the customer regularly relies (so-called cardinal obligations). As far as it concerns the violation of such contractual obligations, liability for indirect damages, especially profit and consequential damages, is excluded.
12.3. Furthermore, the liability of mediahelden is limited to contract-typical, foreseeable damages which were foreseeable at the conclusion of the contract and are controllable by mediahelden.
12.4. The above exclusions of liability shall not apply in the event of injury to life, limb or health or in the event of intent or gross negligence. Liability under the Product Liability Act remains unaffected.
13.1. The personal data provided by the customer within the scope of registration shall only be collected, stored, processed and used by mediahelden insofar as this is necessary for the fulfilment of contractual obligations, in particular for the provision and use of the services offered, as well as for billing purposes, or the customer has given his explicit consent.
13.3. With regard to the data stored by the customer on the provided storage space, the customer is responsible for compliance with the regulations of the Federal Data Protection Act, the European General Data Protection Regulation (GDPR) and, if applicable, other relevant data protection laws. If and to the extent that the customer processes (e.g. stores) personal data of third parties on the IT systems for which mediahelden is technically responsible, it is exclusively the customer's responsibility to ensure the basis required for the compliance with regulations of this processing (e.g. consent) in accordance with Art. 6 GDPR. In these cases, a contract for order processing must also be concluded between the customer and mediahelden (cf. Art. 28 para. 3 GDPR). Therefore, in the event that the customer processes personal data of third parties using the services offered by mediahelden, he undertakes to inform mediahelden immediately and to conclude data processing agreement available at registration and afterwards in the customer area under "data processing agreement" in accordance with Art. 28 para. 3 GDPR. The contract becomes part of the contractual relationship between the parties by the acceptance of the customer or user. The processing of special categories of personal data within the meaning of Art. 9 GDPR (e.g. disease data) with the software is strictly prohibited. If this is desired, please contact us directly.
14.1. Amendments and supplements to these contractual conditions must be made in written form. This also applies in particular to a waiver of this written form clause.
14.2. Should individual provisions of these contractual conditions be or become invalid, this shall not affect the validity of the remaining clauses. The parties commit to replace the invalid clauses by a clauses that comes closest to the economic intention of the invalid clause in a legally permissible manner. The same applies to gaps in the agreement.
14.3. mediahelden reserves the right to change the terms of this contract at any time without giving reasons unless this is unreasonable for the customer. mediahelden will inform the customer about changes to this contract in a timely manner. If the customer does not object to the validity of the new contractual conditions within 14 days after notification, the amended contractual conditions shall be deemed accepted by the customer. mediahelden shall inform the customer of his right of objection and the significance of the objection period in the notification.
14.4. Unless otherwise agreed, the customer can send all declarations to mediahelden in any case by e-mail, using the contact form available on any mediahelden website or letter to mediahelden. mediahelden for its part can send declarations to the customer or user by e-mail, or letter to the address that the customer or user has provided as current contact information in his user account.
14.5. The law of the Federal Republic of Germany shall apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
14.6. The parties agree that the place of jurisdiction for disputes arising from the contract shall be the registered office of mediahelden if the customer has no general place of jurisdiction in Germany, the customer's place of residence or habitual abode is unknown at the time the action is filed or the customer has moved his place of residence or habitual abode abroad after conclusion of the contract.
14.7. The contractual language is English.

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Art. 28
§ 7
Art. 6
Art. 28
Art. 28
Art. 9


Article 1 - The Court.
§ 123-1. Senate is court of impeachment; quorum.
§ 123-2. Chief Justice presides in impeachment of Governor.
§ 123-3. Power of the Senate as a court.
§ 123-4. Power of presiding officer.
§ 123-5. Causes for impeachment.
Article 2 - Procedure in Impeachment.
§ 123-6. Articles of impeachment preferred.
§ 123-7. When President of Senate impeached, another officer chosen.
§ 123-8. Notice given to the accused.
§ 123-9. Accused entitled to counsel.
§ 123-10. Time of hearing fixed.
§ 123-11. Oath administered to members.
Article 3 - Effect of Impeachment.
§ 123-12. Accused suspended during trial.
§ 123-13. Manner of conviction; judgment; indictment.


§ 443-4 Interpretation and definitions.
§ 443-6 Basis for establishing areas of special flood hazard.
§ 443-7 Interpretation; conflicts with other laws.
§ 443-8 Penalties for offenses.
§ 443-9 Warning and disclaimer of liability.
§ 443-10 Designation of local administrator.
§ 443-11 Floodplain development permit required.
§ 443-12 Application for permit.
§ 443-13 Duties and responsibilities of local administrator.
§ 443-15 Standards for all structures.
§ 443-18 Manufactured homes and recreational vehicles.
§ 443-19 Zoning Board of Appeals.
§ 443-20 Conditions for variances.


Met Opera’s motion to dismiss a star’s negligence action against it was properly denied.
In a decision by Justice Rolando Acosta, the First Department affirmed Special Term’s denial of the Met Opera’s motion to dismiss plaintiff’s negligence action. The Met based its motion on plaintiff’s status as the Met’s employee or special employee, which would have relegated plaintiff to the exclusive remedy of worker’s compensation per WCL §11.
By way of background, the New York Times reported on December 18, 2011 that mezzo soprano Wendy White, while singing the role of Marthe in Gounod’s “Faust” the preceding evening, fell from a platform eight feet above the stage as she made her entrance in Act III. http://www.nytimes.com/2011/12/18/arts/music/opera-singer-wendy-white-in-stable-condition-after-a-fall-at-the-met.html. As she walked onto a platform from a staircase, a hinge on a piece of plywood that connected the platform to the stairway broke, and Ms. White disappeared from view. The curtain was dropped and Ms. White was taken to the hospital. Id. Ms. White broke no bones but suffered nerve and muscle damage that has prevented her from singing professionally. http://www.nytimes.com/2012/10/02/arts/music/wendy-white-says-met-refuses-to-pay-her-after-injury.html.
Plaintiff performed at the opera house pursuant to a “Standard Contractor’s Agreement (Per Performance”) between the Met and her corporation, Wendy White, Inc. (WW, Inc.), which defined WW, Inc. as the “Contractor”.
The Standard Contractor’s Agreement was between the Met and plaintiff’s corporation and specified that plaintiff was an employee of her corporation.
The Standard Contractor’s Agreement did not cede total control of Ms. White’s performance to the Met, so the Met did not become her special employer.
Plaintiff’s corporation received only 1099’s, not W-2’s from the Met.
The Met paid her no employment benefits and had told her she did not qualify for the Met’s health insurance because she was not an employee.
The Met provided her with no training, supervision, or direction from the Met with respect to how to perform her role and did not pay for her voice lessons or coaching.
The legislative history behind section 2(4) stated that the section was intended to cover the vast majority of musicians and performers who are not in the star category, as opposed to star performers who are independent professionals able to negotiate the terms of their engagements.
Without plaintiff’s consent, the Met filed a worker’s compensation claim in New York with its worker’s compensation, which the Met’s WC carrier accepted “without prejudice”.
The Worker’s Compensation Board cancelled its proposed decision of accident, notice and causal relationship on the ground that claimant wanted the case to be discontinued because she had filed her own WC claim in New Jersey against her corporation-employer.
The Met had previously taken the opposite position in an unrelated case, Inre Metropolitan Opera Assn., Inc. and Operatic Artists of America, (327 NLRB No. 136, 327 NLRB 740, 744-745 1999 WL 112550, *9, 1999 NLRB LEXIS 113, *29-30 [NLRB 1999]).
Plaintiff’s corporation therefore met the definition of an “employer covered by this chapter,” inasmuch as it is a corporation “having one or more persons in employment” per WCL § 2(3).
Lastly, the failure of plaintiff’s corporation to have obtained a workers’ compensation policy compliant with WCL §50(2) did not mean that plaintiff was necessarily covered by the Met’s worker’s compensation policy, because the statutory consequence of failing to obtain such a policy is simply payment of a penalty. In addition, WCL §54(6)(c) provides that a corporation such as plaintiff’s, whose sole employee is an executive officer who owns 100% of the stock, need not purchase workers’ compensation for the employee. Moreover, plaintiff’s corporation was not seeking to invoke the benefits of the immunity provision of WCL §11 without fulfilling its corresponding obligation under the statute.
Defendant homeowner’s insurer properly rescinded the policy based on insureds’ innocent misrepresentation that the home was to be occupied, and the insurance broker had no duty to make sure the insureds properly filled out the application.
The Second Department held that defendant insurer properly rescinded plaintiffs’ fire insurance policy based upon the plaintiffs’ misrepresentation the residence would be owner-occupied because a misrepresentation can be innocently made and still trigger rescission. The Second Department also found that the broker had no obligation to make sure that plaintiffs properly filled out the insurance application.
Before plaintiffs bought the subject residence in Brooklyn, plaintiffs’ mortgage broker told plaintiffs that plaintiffs needed insurance to close. The mortgage broker contacted defendant insurance broker to procure a homeowners’ insurance policy based upon plaintiffs’ representations in their loan application that they would occupy the premises as their primary residence. Plaintiffs signed an application for owner-occupied homeowner’s insurance and defendant insurance carrier issued a homeowner’s insurance policy on the closing date.
After fire damaged the premises, defendant insurer discovered that plaintiffs did not occupy the premises as their primary residence and rescinded the policy, on the ground that plaintiffs’ material representation about occupancy induced the insurer to issue a policy that it normally would not have issued.
Plaintiffs sued the insurer and the insurance broker for breach of contract and negligence. Held: Supreme Court properly granted summary judgment to defendant insurer and defendant insurance and properly denied the plaintiffs’ cross motion for summary judgment against both defendants.
Plaintiffs admitted that, when they signed the application for insurance, they did not intend to occupy the premises. Plaintiffs unsuccessfully contended that, although the application was completed before to closing and before to the inception of the policy, the representation that the premises was an owner-occupied primary residence established, in effect, a material misrepresentation of a then existing fact that the premises would be owner occupied, which was sufficient for rescission under Insurance Law § 3105.
Secondary evidence of plaintiffs’ first application for insurance which plaintiffs signed was proof in admissible form under CPLR 4539[b]). And plaintiff’s unsigned second application was also admissible.
The question on the application about owner occupancy was unambiguous and therefore could properly serve as the basis for a claim of misrepresentation. Moreover, plaintiffs admitted that they did not read the application when they signed it, so they could not have been misled by any unclear language.
The insurer was not required to establish that plaintiffs’ misrepresentation was willful. An innocent or unintentional material misrepresentation is enough to warrant rescission of an insurance policy.
The policy language did not require a showing of willfulness for rescission based on a misrepresentation made when applying for coverage.
Although there was a question of fact as to whether the insurance broker was an agent or a broker vis-à-vis the insurer, there was no issue of fact as to whether the insurance broker knew of the material misrepresentation, so no such knowledge could not be imputed to the insurer.
With regard to the insurance broker, insurance brokers have a common-law duty to obtain coverage that their client request within a reasonable time or inform the client of the inability to do so, but they have no continuing duty to advise, guide or direct a client to obtain additional coverage. So to state cause of action for negligence or breach of contract against an insurance broker, plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy.
Although in exceptional circumstances a special relationship may develop between the broker and client that will make the broker liable for failing to advise or direct the client to obtain additional coverage even in the absence of a specific request, none of those circumstances applied here. The three exceptional situations are: (1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on.
The insurance broker demonstrated that none of the exception circumstances applied and further demonstrated that it procured the insurance requested.
Tort-plaintiff is entitled to “made whole” rule vis-à-vis his no-fault carrier’s subrogation right against his tort settlement.
Tort-plaintiff (“plaintiff”) had sued tort-defendant (“defendant”) for plaintiff’s personal injuries resulting from their two-car accident. Plaintiff’s no-fault carrier had paid plaintiff $100,000 in APIP (additional personal injury protection), which the no-fault carrier has the right to recoup from plaintiff’s tort settlement.
Defendant’s carrier eventually offered defendant’s policy limit of $100,000 to settle plaintiff’s case. Plaintiff accepted the offer and served a supreme-court order to show cause on plaintiff’s no-fault carrier requesting a declaration that the no-fault carrier’s subrogation rights were limited to extended economic loss (that is, to the portion of the settlement allocable to the category of damages for which APIP benefits were meant to compensate). Respondent did not oppose supreme court’s adjudicating the dispute over its subrogation rights but contended that plaintiff owed it the full amount of the APIP benefits paid (some $39,500). Supreme court directed plaintiff to pay the no-fault carrier the full amount of APIP benefits paid. Plaintiff thereupon formally tendered the amount and pursed his appeal.
The no-fault carrier argued preliminarily that plaintiff’s tender of payment made the appeal moot, but the Fourth Department held that it did not, because the parties’ rights would be affected directly by the outcome of the appeal.
Plaintiff argued that, under the “made whole” rule, the no-fault carrier had no right of subrogation because plaintiff’s damages exceed the amount of the settlement.
[Explanatory note with regard to subrogation: If defendant’s insurance is insufficient to compensate plaintiff fully for plaintiff’s loss, plaintiff retains a right of action against defendant personally. In those cases where plaintiff has his own insurance that covers the balance of plaintiff’s loss (first-party insurance), and plaintiff’s first-party insurer in fact pays him, plaintiff’s first-party insurer acquires plaintiff’s right to pursue the defendant for the amount that plaintiff’s first-party insurer has paid. To state it another way, plaintiff’s first-party insurer is subrogated to plaintiff’s claim against defendant.
[The “made whole” rule then provides that if defendant’s insurance is inadequate to fully compensate plaintiff for his losses, plaintiff’s first-party insurer, whom the insured has paid to assume the risk of loss, has no right to share in the proceeds of the insured-plaintiff’s recovery from the tort-defendant. In other words, plaintiff’s first-party insurer may subrogate against only those funds and assets that remain after plaintiff-insured has been fully compensated. This designation of priority of interests assures that the injured party’s claim against the tort-defendant takes precedence over the subrogation rights of his first-party insurer.
Supreme court here, however, refused to apply the made-whole rule or to prorate the settlement between extended economic loss and pain and suffering, and instead had directed plaintiff to pay his no-fault insurer the entire amount of APIP benefits.
The Fourth Department agreed with plaintiff that supreme court should have applied the made-whole rule but remanded the matter for a determination as to (a) whether the settlement made plaintiff whole and (b) what portion of the $100,000 settlement was for plaintiff’s extended economic loss and what portion was for plaintiff’s pain and suffering.
The Fourth Department therefor reversed supreme court’s judgment (which had the additional defect of failing to declare the rights of the parties) and remitted the matter for the required determinations and for a judgment declaring the rights of the parties in accordance therewith.
Grinage v Durawa [in re ACA Insurance Co., respondent], 2016 NY Slip Op 07429 (4th Dep’t Nov. 10, 2016); http://nycourts.gov/reporter/3dseries/2016/2016_07429.htm.


2006—Pub. L. 109–163, div. A, title V, § 515(b)(4)(C), Jan. 6, 2006, 119 Stat. 3235, substituted “Navy Reserve” for ‘Naval Reserve” in item 6389.
2004—Pub. L. 108–375, div. A, title V, § 541(c)(2)(B), Oct. 28, 2004, 118 Stat. 1904, inserted “; waiver authority” after “Academy” in item 6371.
1999—Pub. L. 106–65, div. A, title V, § 532(a)(4)(C), Oct. 5, 1999, 113 Stat. 604, added item 6371.
1994—Pub. L. 103–337, div. A, title XVI, § 1673(b)(4), Oct. 5, 1994, 108 Stat. 3016, struck out items 6391 “Naval Reserve and Marine Corps Reserve; officers: retirement at age 62”, 6392 “Retention in active status of certain officers”, 6397 “Naval Reserves; officers in the Nurse Corps: elimination from active status”, 6403 “Naval Reserve and Marine Corps Reserve; women officers: elimination from active status”, and 6410 “Naval Reserve and Marine Corps Reserve; officers: elimination from active status to provide a flow of promotion”.
1987—Pub. L. 100–180, div. A, title VII, § 717(b)(2), Dec. 4, 1987, 101 Stat. 1114, added item 6392.
1980—Pub. L. 96–513, title V, § 503(48), Dec. 12, 1980, 94 Stat. 2915, struck out items 6371 “Regular Navy; line rear admirals not restricted in performance of duty; continuation on active list; retirement”, 6372 “Regular Navy; line rear admirals restricted in performance of duty and staff corps rear admirals: retention on active list; retirement”, 6373 “Regular Marine Corps; major generals: retention on active list; retirement”, 6374 “Regular Marine Corps: brigadier generals: retirement for failures of selection for promotion”, 6376 “Regular Navy, line captains not restricted in performance of duty; Regular Marine Corps, colonels: retirement for length of service”, 6377 “Regular Navy, line captains restricted in performance of duty, staff corps captains, and Nurse Corps commanders; Regular Marine Corps, colonels designated for supply duty; retirement for length of service”, 6378 “Regular Navy, line captains restricted in performance of duty, staff corps captains, and Nurse Corps commanders: continuation on active list; retirement”, 6379 “Regular Navy, commanders; Regular Marine Corps. lieutenant colonels: retirement for length of service and failures of selection for promotion”, 6380 “Regular Navy, lieutenant commanders; Regular Marine Corps, majors: retirement for length of service and failures of selection for promotion”, 6381 “Officers retired under preceding sections; retired grade and pay; general rule”, and 6382 “Regular Navy, lieutenants and lieutenants (junior grade); Regular Marine Corps, captains and first lieutenants: discharge for failures of selection for promotion; severance pay”, substituted “retired pay” for “retired or severance pay” in item 6383, struck out items 6384 “Regular Navy and Regular Marine Corps; officers having less than 20 years of service: discharge for unsatisfactory performance of duty; severance pay; reversion of limited duty officers to prior status”, 6385 “Officers appointed under sections 5231, 5232, 5787, or 5787d of this title; grade for purpose of preceding sections”, 6386 “Suspension: preceding sections”, 6387 “Regular Navy, male line officers: Regular Marine Corps, male officers: computation of total commissioned service”, 6388 “Regular Navy; certain staff corps officers: computation of total commissioned service”, 6390 “Regular Navy and Regular Marine Corps; officers: retirement at age 62”, 6392 “Regular Navy and Regular Marine Corps, officers having less than three years of service: revocation of appointments; reversion of certain officers to prior status”, 6393 “Regular Navy and Regular Marine Corps; women officers: termination of appointments”, 6394 “Regular Navy, rear admirals and commodores; Regular Marine Corps, major generals and brigadier generals: retirement on recommendation of board”, 6395 “Regular Navy and Regular Marine Corps; officers having less than 20 years of service: discharge during war or emergency for unsatisfactory performance of duty”, 6396 “Regular Navy; officers in Nurse Corps in grades below commander: retirement or discharge”, 6398 “Regular Navy; women captains and commanders; Regular Marine Corps; women colonels and lieutenant colonels: retirement for length of service: retired grade and pay”, 6400 “Regular Navy, women lieutenant commanders; Regular Marine Corps, women majors: retirement for length of service; retired grade and pay”, 6401 “Regular Navy, women lieutenants; Regular Marine Corps, women captains: discharge for length of service; severance pay”, and 6402 “Regular Navy, women lieutenants (junior grade); Regular Marine Corps, women first lieutenants: discharge for length of service; severance pay”, substituted “separation pay” for “severance pay” in item 6404, and struck out item 6407 “Communication with selection board”.
1978—Pub. L. 95–377, § 8(d), Sept. 19, 1978, 92 Stat. 721, inserted reference to section 5787d in item 6385.
1970—Pub. L. 91–482, § 2E, Oct. 21, 1970, 84 Stat. 1082, struck out item 6406 “Regular Navy and Regular Marine Corps; officers: furlough; furlough pay”.
1968—Pub. L. 90–235, §§ 3(b)(5), 4(a)(13), Jan. 2, 1968, 81 Stat. 758, 760, struck out item 6405 “Effect of acceptance of appointment in Foreign Service”, and item 6409 “Navy and Marine Corps; warrant officers: suspension of laws for mandatory retirement and separation during war or emergency”.
1967—Pub. L. 90–130, § 1(24)(B), (G), (H), Nov. 8, 1967, 81 Stat. 380, 382 struck out “or for age” after “length of service” in item 6377, substituted “officers in Nurse Corps in grades below commander: retirement or discharge” for “officers in Nurse Corps: retirement for age or length of service; retired grade and pay” in item 6396, substituted “Regular Navy; women captains and commanders; Regular Marine Corps; women colonels and lieutenant colonels: retirement for length of service; retired grade and pay” for “Regular Navy, women commanders; Regular Marine Corps, women lieutenant colonels: retirement for age of length or service; retired grade and pay” in item 6398, and eliminated item 6399 which read: “Regular Navy, women lieutenant commanders and below; Regular Marine Corps, women majors and below: retirement at age 50; retired grade and pay”.
1961—Pub. L. 87–123, § 5(30), Aug. 3, 1961, 75 Stat. 267, struck out “not restricted in performance of duty” after “brigadier generals” and “colonels” in items 6374 and 6376, respectively, “; Regular Marine Corps, colonels designated for supply duty” after “Nurse Corps commanders;” in items 6377 and 6378, and struck out item 6375 “Regular Marine Corps; brigadier generals designated for supply duty: retention on active list; retirement”.
1958—Pub. L. 85–861, § 1(144)(G), Sept. 2, 1958, 72 Stat. 1512, added items 6389, 6391, 6397, 6403, 6410.
1957—Pub. L. 85–155, title II, § 201(14), Aug. 21, 1957, 71 Stat. 383, included Nurse Corps commanders and retirement for age in item 6377, and included Nurse Corps commanders in item 6378.


A post last month discussed the U.S. district court’s delay of proceedings regarding the proposed extradition of Inocente Orlando Montano, a former Salvadoran military officer, to Spain for trial for his alleged participation in the 1989 murders of Jesuit priests in El Salvador. The reason was the court’s desire for additional briefing on some of the issues.
In the meantime the U.S. submitted a brief addressing whether the U.S.-Spain extradition treaty’s requirement for “dual criminality” was satisfied and whether U.S. due process requirements would be met by an extradition of Montano.
Now we wait to see if Montano’s attorney responds to the government’s brief on the merits and whether Montano’s health will permit further proceedings.
 Motion for Conditional Release During Pendency of Habeas Proceedings, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. Apr. 7, 2017); Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. Apr. 28, 2017).
 Amended Memorandum in Support of Motion To Dismiss Application for Writ of Habeas Corpus, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. Apr. 17, 2017).
Previous posts have reported that the National Court of Spain in 2008 commenced a criminal investigation of the 1989 murder of six Jesuit priests and their housekeeper and her daughter in El Salvador. In May 2011 the Spanish court issued the equivalent of an indictment of 20 former Salvadoran military officials for their alleged involvement in those murders.
One of these defendants had died; one had been living in the U.S.; two have been cooperating with the Spanish investigation; and the whereabouts of three are unknown. The other 13 are believed to be living in El Salvador.
Ever since May 2011 Spanish authorities have been seeking extradition of 13 of these men from El Salvador and one from the United States. But extradition has not happened yet. Here is an update on the status of those efforts.
In December 2011 Spain requested extradition of 13 of them who were then believed to be in El Salvador. In May 2012, however, the Supreme Court of El Salvador denied extradition of the 13 on the ground that the country’s constitution prohibited extradition of its citizens.
In August 2015, in an unrelated case, the Constitutional Chamber of the Salvadoran Supreme Court ruled that, according to a treaty on international cooperation in criminal matters to which El Salvador is a party, an INTERPOL red notice requires both the identification of the location of the defendants and their arrest and detention pending an additional filing, such as an extradition request. This decision appeared to be in direct conflict with the just mentioned Court’s May 2012 ruling against extradition in the Spanish case.
In response to the August 2015 ruling, the Salvadoran Human Rights Ombudsman, David Morales, on November 16, 2015, petitioned the country’s Supreme Court to review its 2012 decisions refusing to arrest and order the extradition of 13 former military officials who were subjects of the INTERPOL arrest warrants.
The Ombusman also issued a resolution asking Spanish authorities to re-issue the arrest warrants for extradition purposes in this case. This request was endorsed in the Spanish case by the U.S.-based Center for Justice and Accountability (CJA) and the Spanish Association for Human Rights (APDHE).
On January 4, 2016, the Spanish court’s Judge Velasco honored that plea by requesting INTERPOL to re-issue the international arrest warrants for all the Jesuit Massacre case defendants who reside in El Salvador for their extradition to Spain to face the charges.
On January 6, the Salvadoran government said it will cooperate in the execution of those warrants and the extradition of former Salvadoran military officials and soldiers, but that the country’s Supreme Court would make the final decision.
In February 2016 Salvadoran authorities arrested and detained four of the former Salvadoran military officials who are sought for this Spanish criminal case. The four were former colonel Guillermo Alfredo Benavides Moreno; former sergeants Ramiro Ávalos Vargas and Tomás Zárpate Castillo; and former corporal Ángel Pérez Vásquez. The Salvadoran National Civilian Police (PNC) force said that it would “continue the search and capture of the rest of the wanted persons and will inform the public in the opportune moment.” To date, however, no additional arrests have been reported.
On July 14, 2016, the full Supreme Court of El Salvador was scheduled to release its decision on the latest request to issue extradition warrants in this case. The day before, however, the Constitutional Chamber of the Court decided that the country’s Amnesty Law was unconstitutional, which was discussed in a prior post. As a result, the full Supreme Court stayed further proceedings about the extradition warrants.
The Supreme Court, however, has not yet ruled on the request to extradite the other three men– former sergeants Ramiro Ávalos Vargas and Tomás Zárpate Castillo; and former corporal Ángel Pérez Vásquez. They also were tried by a Salvadoran court for illegal homicide, which is an essential element of the crime now being pursued in Spain, but these three men were acquitted in a Salvadoran trial with many alleged irregularities. Strict application of the rationale of the above Supreme Court decision and the cited provision of the extradition treaty and the underlying notion of no double jeopardy suggest that they too should not be subject to extradition, but the irregularities in their trial are impediments to that analysis. We now await the Salvadoran Supreme Court’s ruling on these three men.
On April 1, 2016, Montano filed in that court an Application for a Writ of Habeas Corpus, which is the only way for him to appeal or challenge that decision.
On April 26, the U.S. moved to dismiss that habeas application. Its brief argued that the certification of extraditability would not be overturned if there was any evidence warranting the finding that there was a reasonable ground to believe that the individual was guilty of the crime in the foreign country and that there was such evidence in this case. On June 10 the U.S. submitted its reply to the petitioner’s opposition to the dismissal motion; it argued that the response raised no issues needing further rebuttal.
The matter is now submitted for decision by U.S. District Judge Terrance W. Boyle.
 Prior posts covered the marvelous ministries of these Jesuit priests and their university (University of Central America or UCA); the circumstances of their horrible murders; the Salvadoran military’s attempted cover-up of their involvement in these crimes; the flawed Salvadoran criminal prosecution of a few of the military personnel so involved and their absolution by a Salvadoran amnesty law; the investigation and report on these crimes by the Truth Commission for El Salvador; other legal proceedings regarding these crimes; the Spanish criminal case over these crimes; El Salvador’s 2012 denial of Spain’s request for extradition of most of the suspects in the case; and the commemoration of the 25th anniversary of the Jesuit martyrs in November 2014. These posts are identified in reverse chronological order of posting in a computer-generated list. They also are identified in logical sequence in “The Jesuit Priests” section of my manually prepared List of Posts to dwkcommentaires—Topical: El Salvador. There also is extensive discussion of the Spanish case in the website of the Center for Justice and Accountability, the U.S.-based human rights organization that is involved in that case.
 Spanish Judge Re-Issues Request for the Arrest of Military Officials, CJA (Dec. 2015); Dalton, Spain calls for arrest of 18 soldiers accused of killing priests in El Salvador, El Pais (Dec. 23, 2015); Reuters, El Salvador will cooperate in arrest of 17 former soldiers accused of killing priests, Guardian (Jan. 6, 2015); Labrador, Spain orders again capture Jesuit Salvadoran military case, El Faro (Jan. 5, 2016).
 Human Rights Ombudsman asks extradition slaughter of Jesuits, El Mundo (Nov. 16, 2015).
 Labrador, Arauza & Zabiań, Court refuses to extradite Colonel Benavides, but agrees to send him to prison, El Faro (Aug. 17, 2016); Melendez, Supreme Court Decides Not To Extradite Jesuit Case, LaPrensa Grafica (Aug. 17, 2016); Reuters, El Salvador Court Denies Extradition of former Colonel to Spain, N.Y. Times (Aug. 17, 2016).
 The Salvadoran trial was covered in a prior post as was the release of Colonel Benavides under the Amnesty Law.
 Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241, et seq, Montano Morales v. Elks, No. 5:16-HC-2066-BO (April 1, 2016).
 Memorandum in Support of Motion To Dismiss Application for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (April 26, 2016); Response in Opposition to Federal Respondents’ Motion To Dismiss Application for Writ of Habeas Corpus, and Request for Hearing, Montano Morales v. Elks, No. 5:16-HC-2066-BO (May 18, 2016); United States’ Reply to Petitioner’s Response in Opposition Regarding Motion To Dismiss Application for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (June 10, 2016).
 Supplemental Filing To Support Petition for Write of Habeas Corpus and Request for Hearing, Montano Morales v. Elks, No. 5:16-HC-2066-BO (July 21, 2016); Government’s Response to Supplemental Filing To Support Petition for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (Aug. 10, 2016).
 Cooper & Hodges, Extradition appeal among setbacks in Jesuit massacre, Nat’l Cath. Rep. (April 13, 2016); Assoc. Press, Ex-Salvadoran colonel fights extradition in Jesuit killings (Apr. 1, 2016).
That process is now a hot topic in the U.S. Most recently Turkey is pressing the U.S. to extradite Fethullah Gulen, a Muslim cleric living in Pennsylvania, to Turkey to face charges of being involved in the attempted coup in that country. Another pending request, this from Spain, seeks the U.S. extradition of Inocente Orlando Montano Morales, a former Salvadoran military officer living in the U.S., to face criminal charges involving the 1989 murders of Jesuit priests in El Salvador. Extradition also is one of the many unresolved issues in the process of normalizing U.S.-Cuba relations: will Cuba extradite certain U.S. fugitives and will the U.S. do likewise for certain Cuban fugitives.
Therefore, a better understanding of international extradition is necessary to follow these developments. Such a primer can be found in a 2001 U.S. State Department report to Congress and a recent U.S. government brief in the previously mentioned Spanish case for extradition of the former Salvadoran military officer from the U.S. Assuming those sources are fair summaries of the process, this post omits citations to statutes and cases other than to note that extradition is the subject of 18 U.S. Code, Chapter 209.
U.S. extradition practice is based almost entirely on individually negotiated bilateral treaties, which the U.S. brings into force following Senate advice and consent to ratification. The U.S. is currently a party to 109 such treaties. While most of these treaties currently in force have been negotiated in the last 30-40 years, many of the treaties still in force are quite old, in some cases dating back to the 19th Century.
For many reasons, however, not every request for extradition results in a fugitive being delivered to the requesting country. Sometimes the requesting state doesn’t know where a fugitive is located and makes multiple contingency requests for provisional arrest and extradition. In other cases, fugitives learn they are being sought and flee or go into hiding. Even following a fugitive’s arrest, court proceedings and appeals can last a very long time and can be delayed by fugitives’ exercising all possible rights to challenge extradition.
An almost universal treaty exception, known in international extradition law as the “non bis in idem” doctrine, is similar to the double jeopardy doctrine under U.S. domestic law. It provides that extradition will be denied when the person has already been either acquitted or convicted for the same offense in the country from which extradition is requested, or, in some instances, in a third country.
A similarly widely adopted exception is that extradition is not required where the crime at issue is a “political offense” (a term which can cover treason, sedition or other crime against the state without the elements of any ordinary crime, or which under U.S. law can cover ordinary crimes committed incidental to or in furtherance of a violent political uprising such as a war, revolution or rebellion, especially when such crimes do not target civilian victims) or a “military offense” (a crime subject to military law that is not criminalized under normal penal law).
U.S. treaties also typically provide that extradition may be denied if the request is found to be politically motivated. Some of our treaties provide that extradition may be denied if the request was made for the primary purpose of prosecuting or punishing the person sought on account of race, religion, nationality or political opinion.
Perhaps the highest profile exceptions to the obligation to extradite are bars or limitations in some countries on the extradition of their own nationals. The U.S., however, makes no distinction between extraditing its own nationals and those of other countries and advocates that all countries adopt the U.S. policy due to the ease of flight and the increasingly transnational nature of crime.
Some U.S. treaties provide that if the offense for which surrender is sought is punishable by death under the laws in the country requesting extradition but not in the country holding the fugitive, extradition may be refused unless the requesting country provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out. Sometimes these provisions are included in the treaty at the insistence of our treaty partner, because many countries in Europe and elsewhere oppose the death penalty. Sometimes the U.S. insists on such provisions in order to retain sufficient flexibility to ensure that the U.S. is not obliged to surrender persons for execution for relatively less serious crimes.
Older U.S. treaties that were negotiated before the late 1970’s contained a list of offenses that would be covered. In newer U.S. treaties this list approach has been replaced by the concept of “dual criminality,” usually providing that offenses covered by the treaty include all those made punishable under the laws of both parties by imprisonment or other form of detention for more than one year, or by a more severe penalty (such as capital punishment). Such a formulation obviates the need to renegotiate the treaty to provide coverage for new offenses, strikingly exemplified by the currently evolving area of cyber-crime. Indeed, to avoid having the dual criminality analysis applied too narrowly, most treaties provide further guidance, including that an offense is extraditable whether or not the laws in the two countries place the offense within the same category or describe it by the same terminology. A major goal in the U.S. current ambitious treaty-negotiating program is to negotiate new, modern treaties that eliminate the “list” approach in favor of dual criminality treaties.
Other limitations on the obligation to extradite, which vary to some extent from treaty to treaty, would relate to requests for extradition for extraterritorial offenses where the two countries’ laws differ on the reach of jurisdiction over such crimes. In such cases, the U.S. seeks the greatest possible flexibility in our treaties to permit extradition for offenses that have taken place in whole or in part outside the territory of the requesting party.
The U.S. practice regarding foreign government requests for extradition involves the Department of State, the Department of Justice, a U.S. attorney, a U.S. district court and the Secretary of State.
The extradition process in the U.S. starts when the Department of State receives a request for extradition from a foreign country. That Department initially determines whether the request is governed by a treaty between the U.S. and that country, and if there is such a treaty and the request conforms to the treaty, that Department will prepare a declaration authenticating the request and send it to the U.S. Department of Justice’s Office of International Affairs.
The Justice Department’s Office of International Affairs examines the foreign country’s request to determine if it contains all of the necessary information. If it does, the request is sent to the U.S. Attorney for the district where the subject of the request is located. Thereafter the Office’s attorneys will assist, as needed, the U.S. Attorney.
The U.S. Attorney then prepares and files a complaint with the local U.S. district court seeking a warrant for the individual’s arrest and certification that he or she may be extradited. The U.S. Attorney also files briefs and appears at any hearings in the district court in the case.
The complaint, of course, is served upon the subject of the proceeding, who has a right to be represented by counsel and to contest the complaint.
The court then conducts a hearing to determine if there is probable cause that the subject has violated one or more of the criminal laws of the country seeking extradition. This is not a criminal trial, but like a preliminary hearing in a criminal case to determine if the evidence is sufficient to sustain the charge under the treaty’s provisions.
At such a hearing, the Federal Rules of Civil Procedure, Criminal Procedure and Evidence do not apply. Thus, the evidence may consist of hearsay and unsworn statements, and the judicial officer does not weigh conflicting evidence and make factual determinations. Instead the officer only decides whether there is competent evidence to support the belief that the individual has committed the charged offense under the other country’s laws.
At this hearing, the individual has no right to submit a defense to the charges or evidence that merely contradicts the other country’s proof or poses conflicts of credibility.
If the court finds after the hearing that (a) there is a criminal charge pending in the other country against the individual; (b) the offense underlying the charge is encompassed by the relevant treaty; (c) the individual is the person sought by the foreign government; (d) the evidence supports a finding that the crime for which the individual is sought was committed; (e) the evidence supports a finding that the individual committed the crime; and (f) the treaty has no other basis for denying extradition; then the court issues a certification that the individual is subject to extradition.
Such a certification may be challenged only by the individual’s filing a petition for a writ of habeas corpus to the same district court.
If there is no petition or it is denied, the court sends the certification to the Secretary of State.
Under U.S. statutes, the Secretary of State is the U.S. official responsible for determining whether to surrender a fugitive to a requesting state. In making this decision, the Secretary may consider issues properly raised before the extradition court or a habeas court as well as any humanitarian or other considerations for or against surrender, including whether surrender may violate the United States’ obligations under the Convention Against Torture. The Secretary also will consider any written materials submitted by the fugitive, his or her counsel, or other interested parties.
If the Secretary decides to extradite, the Secretary issues and serves a warrant for the extradition, and the individual is extradited to the other country.
 U.S. State Dep’t, Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (Public Law 106-113) (2001); U.S. Justice Dep’t, Frequently Asked Questions Regarding Extradition;Memorandum in Support of Motion To Dismiss Application for Habeas Corpus at 2, Montano Morales v. Elks, No. 5-16-HC-2066-BO (E.D.N.C. April 26, 2016).
 Future posts will examine the requests from Spain and Turkey while an earlier post reviewed a district court’s issuance of the certification for extradition to Spain of the former Salvadoran military officer: Resumption of Spanish Criminal Case Over 1989 Salvadoran Murder of Jesuit Priests?, dwkcommentaries.com (Feb. 6, 2016). Another post reviewed U.S. and Cuban extradition issues: Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives, dwkcommentaries.com (Feb. 24, 2015).
 The U.S. currently has bilateral extradition treaties with 109 countries.
 Justice Dep’t, Office of International Affairs.
 A prior post erroneously stated that such a certification was subject to an ordinary appeal to the relevant U.S. court of appeals.
On July 13, the Constitutional Chamber of the Supreme Court of El Salvador decided, 4 to 1, that the country’s amnesty law of 1993 was unconstitutional. This post will examine that decision and a subsequent post will discuss the impact of that decision on the pending criminal case in Spain regarding the 1989 murders of the Jesuit priests in El Salvador.
The Chamber held that the country’s amnesty law of 1993 was unconstitutional because it was “contrary to the access to justice” and the “protection of fundamental rights” as impeding the state from fulfilling its obligation to investigate, try and punish grave violations of those rights. Indeed, the court said the government has an obligation to “investigate, identify and sanction the material and intellectual authors of human rights crimes and grave war crimes” in its civil war and to provide reparations to victims. The court also suggested that prosecutors begin with about 30 cases highlighted by a U.N. Truth Commission in March 1993. The cases include massacres, assassinations and kidnappings by combatants from both the armed forces and the guerrilla army called the Farabundo Martí National Liberation Front (FMLN). One of the most prominent was the 1989 murders of the Jesuit priests and their housekeeper and her daughter.
The court’s announcement of its decision stated that the 1992 Peace Accords ending the civil war had contained no provision for an amnesty; that the country’s National Assembly had no power to grant an amnesty to persons who had committed crimes against humanity or war crimes constituting grave violations of human rights and that its constitution and international law of human rights required the conclusion of invalidity.
The court also stated that the crimes against humanity during the civil war were not individual and isolated acts, but the result of guidelines and orders issued by organized apparatuses of power with hierarchies of command. This implies criminal responsibility of the direct actors, those who gave the orders for the crimes and those commanders who failed to countermand the orders and thereby failed to exercise control over the hierarchies.
Positive Reactions to the Decision.
The next day the decision was celebrated at a ceremony in San Salvador’s Cuscatlan Park, the site of a 275-foot granite wall etched with the names of 30,000 civilians killed in the country’s civil war and the locations of nearly 200 massacres committed between 1970 and 1991. Below are photographs of David Morales,El Salvador’s human rights ombudsman, who made remarks that day, and of part of the granite wall.
At this celebration, David Morales said, “If prosecutors and judges are willing to comply with the ruling, it will generate for the first time in El Salvador the first glimmers of reconciliation.” He added that many Latin American countries have already abolished their amnesty laws and begun to prosecute crimes dating to the civil wars and military dictatorships of the late 20th century.
Another voice of support for the decision came in a New York Times editorial calling it “ a remarkable ruling that opens the door for relatives of victims of war crimes to hold torturers and killers accountable.” “However,” the editorial continued, “there appears to be little political will in El Salvador to revisit a painful chapter of its history in courtrooms. Politicians across the political spectrum have questioned the viability of war crimes tribunals at a time when the country’s judicial institutions are overwhelmed by endemic gang violence.” Nevertheless, the Times suggested that El Salvador should create “a prosecution unit and gives it the tools and independence to pursue the most emblematic cases of the conflict” like the El Mozote Massacre,” which has been discussed in prior posts.
Negative Reactions to the Decision.
Mauricio Ernesto Vargas, a retired general who represented the armed forces in the peace negotiations, said the court’s ruling could intensify political polarization in a country with no shortage of problems: a gang-violence epidemic, a migration crisis, crop failures and economic stagnation.
The conservative political party ARENA (founded by a leader of the death squads in the 1970s and 1980s, and in control of the government when atrocities like the massacre of the Jesuits occurred and the authors of the amnesty law) published an official statement urging respect for the court’s decisions, but also noting that the decisions would present challenges for the process of reconciliation and the strengthening of democracy and institutions.
 El Salvador Supreme Court (Constitutional Chamber), Press Release (July 13, 2016), http://static.ow.ly/docs/20.%20Comunicado%2013-VII-2016%20Ley%20de%20amnist%C3%ADa_50Yr.pdf; Post war 1993 amnesty law declared unconstitutional, Tim’s El Salvador Blog (July 13, 2016), http://luterano.blogspot.com/2016/07/post-war-1993-amnesty-law-declared.html; Malkin & Palumbo, Salvadoran Court Overturns Wartime Amnesty, Paving Way for Prosecutions, N.Y. Times (July 14, 2016); Maslin, El Salvador strikes down amnesty for crimes during its civil war, Wash. Post (July 14, 2016), https://www.washingtonpost.com/world/the_americas/el-salvador-strikes-down-amnesty-for-crimes-during-its-civil-war/2016/07/14/5eeef2ec-49bf-11e6-8dac-0c6e4accc5b1_story.html.
 Prior posts have discussed the Amnesty Law: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case, dwkcommentaries.com (June 11, 2011), https://dwkcommentaries.com/2011/06/11/international-criminal-justice-el-salvadors-general-amnesty-law-and-its-impact-on-the-jesuits-case; El Salvador’s Current Controversy Over Its General Amnesty Law and Supreme Court, dwkcommentaries.com (June 16, 2011), https://dwkcommentaries.com/2011/06/16/el-salvadors-current-controversy-over-its-general-amnesty-law-and-supreme-court; The El Mozote Massacre: The Truth Commission for El Salvador and the Subsequent General Amnesty Law and Dismissal of the Criminal Case, dwkcommentaries.com (Dec. 13, 2012), https://dwkcommentaries.com/2012/12/13/the-el-mozote-massacre-the-truth-commission-for-el-salvador-and-the-subsequent-salvadoran-general-amnesty-law-and-dismissal-of-criminal-case. It should be noted, however, that U.S. federal courts have held that the General Amnesty Law is limited to Salvadoran judicial proceedings and thus does not bar U.S. civil lawsuits for money damages against Salvadoran defendants. (El Salvador’s General Amnesty Law in U.S. Federal Courts, dwkcommentaries.com (June 14, 2011), https://dwkcommentaries.com/2011/06/14/el-salvadors-general-amnesty-law-in-u-s-federal-court-cases.
 Prior posts have discussed the Truth Commission: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador, dwkcommentaries.com (June 9, 2011), https://dwkcommentaries.com/2011/06/09/international-criminal-justice-the-jesuits-case-in-the-truth-commission-for-el-salvador; The Salvadoran Truth Commission’s Investigation of the 1980 Murders of the Four Churchwomen, dwkcommentaries (Dec. 19, 2011), https://dwkcommentaries.com/2011/12/19/the-salvadoran-truth-commissions-investigation-of-the-murders-of-the-four-american-churchwomen; The El Mozote Massacre: The Truth Commission for El Salvador and the Subsequent General Amnesty Law and Dismissal of the Criminal Case, dwkcommentaries.com (Dec. 13, 2012), https://dwkcommentaries.com/2012/12/13/the-el-mozote-massacre-the-truth-commission-for-el-salvador-and-the-subsequent-salvadoran-general-amnesty-law-and-dismissal-of-criminal-case.
 Thanks for Tim’s El Salvador Blog (http://luterano.blog spot.com) for much of the information on the reactions to the Chamber’s decision. David Morales: The sentence “is a tool of greater scope to demand justice, DiarioCoLatino (July 14, 2016) http://www.diariocolatino.com/david-morales-la-sentencia-es-una-herramienta-de-mayores-alcances-para-exigir-justicia; Dalton, Declared unconstitutional the amnesty in El Salvador, El Pais (July 14, 2016) http://internacional.elpais.com/internacional/2016/07/15/america/1468541983_506876.html.
Resumption of Spanish Criminal Case Over 1989 Salvadoran Murder of Jesuit Priests?
As discussed in a prior posts, Spain’s National Court in 2008 commenced a criminal investigation of the 1989 murder of six Jesuit priests and their housekeeper and her daughter in El Salvador. In May 2011 the Spanish court issued the equivalent of an indictment of 20 former Salvadoran military officials for their alleged involvement in those murders.
Now there are signs in the U.S., Spain and El Salvador that the case will be resumed.
On April 8, 2015, the U.S. Department of Justice filed a complaint for U.S. extradition of Montano to Spain. A hearing on that complaint was held on August 19, 2015, before U.S. Magistrate Judge Kimberly Swank, U.S. District Court (Eastern District, North Carolina).
Therefore, the Magistrate Judge concluded that Montano was subject to extradition and certified this finding to the U.S. Secretary of State as required by 18 U.S.C. § 3184.
Under the previously mentioned U.S. federal statute (18 U.S.C. § 3184) the Secretary of State “shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.” This statute on its face does not appear to grant the Secretary the discretion to deny the request for extradition. Moreover, since the U.S. Department of Justice brought the prosecution of Montano for immigration fraud and then for his extradition, it appears exceedingly unlikely that Secretary of State John Kerry would not provide the necessary warrant for extradition.
Now we wait to see if Montano exercises his right under Federal Rule of Civil Procedure 73 (c) and Federal Rule of Appellate Procedure 4(a) to appeal this decision to the U.S. Court of Appeals for the Fourth Circuit within 30 days “after entry of the judgment or order being appealed from,” which presumably is February 5.
In August 2015, in an unrelated case, the Constitutional Chamber of the Salvadoran Supreme Court ruled that, according to a treaty on international cooperation in criminal matters to which El Salvador is a party, an INTERPOL red notice requires both the identification of the location of the defendants and their arrest and detention pending an additional filing, such as an extradition request. This decision appears in direct conflict with the Court’s May 2012 ruling against extradition in the Spanish case over the Jesuit murders.
The Ombudsman also issued a resolution asking Spanish authorities to re-issue the arrest warrants, for extradition purposes in the Jesuits Massacre Case. This request was endorsed in the Spanish case by CJA and the Spanish Association for Human Rights (APDHE).
On January 4, 2006, the Spanish court’s Judge Velasco honored that plea by requesting INTERPOL to re-issue the international arrest warrants for all the Jesuit Massacre case defendants who reside in El Salvador for their extradition to Spain to face the charges.
On January 6, the Salvadoran government said it will cooperate in the execution of those warrants and the extradition of 17 former Salvadoran military officials and soldiers (one of whom is the previously mentioned Montano in the U.S.), but that the country’s Supreme Court would make the final decision.
On February 5 and 6, 2016, Salvadoran police detained four of the 17 former military officials. The police also are looking for the other 12 (excluding Montano). This is despite some earlier police reluctance to do so. These arrests and searches are seen as a first step towards extradition. These actions were endorsed on February 6 by President Salvador Sanchez Ceren, who stressed that the country was “committed to comply with international standards” and that there were INTERRPOL red notices calling for arrest. He also urged those subject to arrest to comply for decision on extradition to be made by the Supreme Court.
There now appears to be some hope that those accused of complicity in the murder of the Jesuits will face criminal charges in Spain. The main obstacle now is the Salvadoran Supreme Court, which will have to decide whether the new arrest warrants and request for extradition will be honored.
 Prior posts that were tagged “Jesuits” covered the marvelous ministries of these Jesuit priests and their university (University of Central America or UCA); the circumstances of their horrible murders; the Salvadoran military’s attempted cover-up of their involvement in these crimes; the flawed Salvadoran criminal prosecution of a few of the military personnel so involved and their absolution by a Salvadoran amnesty law; the investigation and report on these crimes by the Truth Commission for El Salvador; other legal proceedings regarding these crimes; the Spanish criminal case over these crimes; El Salvador’s 2012 denial of Spain’s request for extradition of most of the suspects in the case; and the commemoration of the 25th anniversary of the Jesuit martyrs in November 2014.
 Prior posts that were tagged “Montano” discuss the U.S. prosecution, conviction and imprisonment of Montano for U.S. immigration fraud and the proceedings for his extradition to Spain. See also CJA, U.S. Extradition of Montano; Drew, Unusual extradition fight plays out over priests’ slayings, Yahoo News (Aug. 18, 2015); Hodge, Former colonel faces extradition for charges of plotting Jesuits’ slayings, Nat’l Catholic Reporter (Aug. 24, 2015).
 Certification of Extraditability & Order of Commitment, In re Request By Spain for the Extradition of Inocente Orlando Montano Morales (No. 2:15-MJ-1021-KS, U.S. Dist. Ct., E. D. N.C., N. Div. Feb. 5, 2016); CJA Press Release, Judge Grants Extradition of Salvadoran Colonel Accused in Jesuit Massacre (Feb. 5, 2015); Malkin, U.S. Judge Approves Extradition of Former Salvadoran Colonel, N.Y. Times (Feb. 5, 2016).
 CJA, Spanish Judge Re-Issues Request for the Arrest of Military Officials, CJA (Dec. 2015); Dalton, Spain calls for arrest of 18 soldiers accused of killing priests in El Salvador, El Pais (Dec. 23, 2015); Reuters, El Salvador will cooperate in arrest of 17 former soldiers accused of killing priests, Guardian (Jan. 6, 2015); Labrador, Spain orders again capture Jesuit Salvadoran military case, elfaro (Jan. 5, 2016).
 Serrano, They asked military support of ARENA and right before the event of murdered Jesuits, LaPagina (Jan. 6, 2016).
 President recommends involved in Jesuit case to be delivered, Diario CoLatino (Feb. 6, 2016); Labrador, Captured soldiers accused in the Jesuit case, Elfaro (Feb. 5, 2016); PNC Accused Military Capture Jesuit Case, DiarioLatino (Feb. 5, 2015); Labrador, Police are still resisting capture by military Jesuit Case, Elfaro (Jan. 25, 2016).
Posted on February 6, 2016 Categories Law, Other countries, ReligionTags 18 U.S.C. § 3184, Carlos Martín Baró, Center for Justice and Accountability (CJA), Christianity, David Morales, El Salvador, El Salvador Supreme Court, Federal Rule of Appellate Procedure 4(a), Federal Rule of Civil Procedure 73 (c), human rights, Humberto Corado, Ignacio Martín-Baró, INTERPOL, Jesuits, Magistrate Kimberly Swank, North Carolina, President Salvador Sanchez Ceren, Roman Catholic Church, S.J., Secretary of State John Kerry, Spain, Spanish Association for Human Rights (APDHE), U.S. District Court (Eastern District, United States of America (USA), universal jurisdiction3 Comments on Resumption of Spanish Criminal Case Over 1989 Salvadoran Murder of Jesuit Priests?
On Sunday, May 10th, Pope Francis held an hour-long private audience at the Vatican with Raúl Castro, the President of Cuba.
Immediately afterwards President Castro gave the Pontiff two gifts. One was a painting of a large cross made with several boats and a child praying to the cross; the Cuban artist Alexis Leyva Machado said the painting was referring to the suffering of thousands of African people trying to reach Europe by crossing the Mediterranean Sea. The other gift for the Pope was a medal commemorating the 200th anniversary of the Cathedral of Havana. In turn, the Holy Father gave Raúl a copy of his apostolic exhortation “The Joy of the Gospel” and a medal “St. Martin of Tours and the beggar covered with the mantle,” explaining that he gave it to world leaders because it recalls the obligation to help the poor and at the same time promote dignity.
 This post is based upon the following: Yardley, Raúl Castro Meets with Pope Francis at Vatican, N.Y. Times (May 10, 2015); Pullella, Raul Castro meets pope, says might return to the Church, Reuters (May 10, 2015); Scammell, Castro thanks Pope Francis for brokering thaw between Cuba and US, Guardian (May 10, 2015); Ordoz, Castro: “If the Pope continues, I’ll pray and return to the church,” El Pais (May 10, 2015) (Google translation); BBC, Raul Castro thanks Pope Francis for brokering Cuba-U.S. deal, (May 10, 2015); Francisco Raul and the Pope meet in historic meeting, Granma (May 10, 2015) (Google translation).
 The Cuban newspaper Granma previously cited report of this historic meeting and the subsequent press conference did not mention Castro’s comments about his plan to attend all the Pope’s masses in Cuba and perhaps to start praying and return to the Catholic Church.
On May 6th Spain’s Supreme Court affirmed its High Court’s criminal investigation and prosecution of former Salvadoran military officials for the 1989 murders of six Jesuit priests and their housekeeper and her daughter at the University of Central America in San Salvador.
The legal issue for the Supreme Court was whether a 2014 amendment to Spain’s statute regarding universal jurisdiction barred further proceedings in the case. Important for the Supreme Court’s conclusion that it did not were (a) the fact that five of the murdered priests were Spanish citizens and (b) “serious and reasonable” indications that El Salvador’s 1991 criminal trial in this case was not held to find those responsible for the murder but instead to obstruct justice, “all of it accompanied by the absence of the necessary guarantees of independence and impartiality.” One of the grounds for the latter reason was the resignation of the Salvadoran prosecutors after the country’s attorney general refused to allow them to call important military officials to testify at the trial.
In previous developments in this case, Spain had issued arrest warrants for former Salvadoran military officials and requested their extradition to Spain, but El Salvador denied the request for most of these men. One of them (former Colonel Inocente Orlando Montano), however, had been living in the U.S., where he was prosecuted, convicted and imprisoned for lying to U.S. immigration about his military record in El Salvador, and on April 8, 2015, the U.S. government filed a request in a U.S. district court in Massachusetts seeking the extradition to Spain of Col. Montano for his alleged role in the 1989 Jesuit massacre. Montano will now face an extradition hearing before a U.S. magistrate judge and, if ruled extraditable, will be transferred to Spain to stand trial.
Last month Spain’s Supreme Court upheld the dismissals of two High Court investigations of alleged human rights violations by Chinese officials in Tibet under Spain’s universal jurisdiction statute. Still awaiting decision by the Supreme Court are whether the amended universal jurisdiction statute permits investigations of the 1976 murder of Spanish diplomat Carmelo Soria during the Pinochet dictatorship in Chile and the 2010 Israeli attack on volunteers in the Freedom Flotilla, who were bringing aid to Gaza.
 This post is based upon the following: Spain’s Supreme Court, Press Release: The Supreme Court agreed that the High Court continue to investigate the death of five Spanish priests in El Salvador in 1989 (May 6, 2015); Rincoń, Supreme Court approves inquiry into 1989 Jesuit massacre in El Salvador, El Pais (May 7, 2015); Spanish Justice decides to investigate deaths of Jesuits in El Salvador, DiarioCoLatino (May 6, 2015). Previous posts examined the general international law principle of universal jurisdiction; Spain’s universal jurisdiction statute and its 2014 amendment.
 Other posts discussed El Salvador’s criminal prosecution regarding the Jesuits’ murders; the early history of Spain’s Jesuits case; Spain’s issuance of criminal arrest warrants in Jesuits case; other developments in Spain’s Jesuits case; Spain’s request for extradition in Jesuits case and El Salvador’s denial of extradition; and update on Spain’s Jesuits case.