We were privileged to file today a petition for certiorari with the Supreme Court of the United States on behalf of our client, art dealer Alexander Khochinsky. The petition asks the Court for reinstatement of a lawsuit against Poland for lack of subject matter jurisdiction (i.e., sovereign immunity) for Poland’s effort to have Khochinsky extradited from New York as leverage to force him to relinquish a painting that he inherited from his father. The case invokes three provisions of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605 (the FSIA): the implicit waiver exception, the counterclaim exception, and the non-commercial tort exception. The basis on which we seek the Court’s review is simple: if the holding below is the law, then no one is safe in the United States from any number of rogue regimes that abuse the extradition system for discriminatory and persecutory reasons. To allow this decision to stand is a threat to any American. What if, for example, Turkey pursued a Christian American in similar fashion motivated by religious animus about owning a particular kind of art from the Ottoman Empire? What if the Taliban, now the de facto government of Afghanistan, declared a worldwide intention to find Jews in possession of Pashto cultural property? What if China declared American intellectual property to be revolutionary patrimony?
The FSIA sets out the exclusive set of circumstances in which a foreign sovereign may be sued in the courts of the United States. Underlying those exceptions to sovereign immunity is a simple, motivating principle: when a sovereign stays within the bounds of characteristics understood to be unique to sovereigns, the United States will extend the foreign nation the grace and comity of immunity from suit and process. But when a foreign sovereign steps outside of the terrain of the state and instead acts as a private—often commercial—actor would, it may not claim immunity for claims that arise out of those facts and circumstances.
This is such a case. In Poland’s effort to coerce Khochinsky—because he is Jewish and an advocate for Holocaust restitution—into relinquishing title to a painting that he inherited from his father, Poland targeted Khochinsky in bad faith here in the United States for extradition and destroyed his life and business.
Since 2010, Poland has pursued Khochinsky around the world for discriminatory and anti-Semitic reasons to litigate what is, in fact, a commercial dispute over title to a painting. The question is whether Poland’s knowing misuse of the extradition process—in a case that the United States described as “for and on behalf of the Government of Poland”—abrogates its entitlement to sovereign immunity pursuant to the FSIA. We have asked the Court to grant this petition to address a grave threat to American liberty—on American soil—cloaked in the guise of sovereign immunity.
The logic of the court of appeals was effectively this: extradition is “fundamentally diplomatic” and therefore ineligible for the implicit waiver exception of the FSIA (28 U.S.C. § 1605(a)(1)), yet at the same time extradition is “process” that is excluded from the FSIA’s noncommercial tort exception for Khochinsky’s First Amendment retaliation claim (28 U.S.C. § 1605(a)(5)) because extradition is not “exclusively diplomatic.” In other words, the court of appeals concluded that extradition is too diplomatic, and yet somehow not diplomatic enough.
Khochinsky is the son of a Holocaust survivor whose entire family and village was murdered during the Nazi occupation of what is now south-eastern Poland. His mother, who happened to be further east visiting her own mother when Operation Barbarossa began, was one of the barely 10% of Jews in that city who survived the war and the Holocaust. Her property was never returned to the family.
In 2010, Khochinsky approached the Polish government to discuss restitution of that property. He hoped that if he offered to transfer Girl with Dove—which appeared similar to a painting that Poland was seeking as taken from a museum during the war—Poland might be more willing than usual to discuss restitution.
Regrettably, he was wrong. As the Law and Justice Party in Poland has seized control in the last decade over all aspects of the Polish government and judiciary, a fixation on denying any restitution to Jews of the property taken from them has been one of the party’s bizarre priorities. Anti-Semitism has become, in effect, state policy.
The criminal accusations against Khochinsky never really made sense; after all, he approached the Polish government. Judge Rakoff of the U.S. District Court for the Southern District of New York saw through this; sadly, the Department of Justice and SDNY U.S. Attorney’s office went along with the charade and Khochinsky suffered arrest and imprisonment before Judge Rakoff threw the extradition request out in 2015. Poland has continued to harass Khochinsky around the world, having him arrested in Paris in 2019 again before a French court likewise dismissed that attempt, citing the increasing European consensus that Poland’s judiciary has been corrupted and lacks due process or the rule of law.
We are proud to stand up for our client in this important case.