Turkiye Halk Bankasi A.S., aka Halkbank v. United States

No court in history has ever criminally tried the instrumentality of another co-equal sovereign—even in cases involving commercial conduct. And Congress has never seen fit to abrogate the immunities owed instrumentalities at common law to allow for that result. This Court confirmed as much when it previously heard this case and held that the Foreign Sovereign Immunities Act (FSIA), which created exceptions to sovereign immunity, “does not apply to”—and does not limit common-law immunity in—“criminal proceedings.” Pet.App.58a. The Court remanded the case to the Second Circuit to consider in full Halkbank’s common-law sovereign immunity arguments. The Second Circuit then held it was required by Second Circuit civil precedents to “defer to the Executive Branch’s determination as to whether a party should be afforded common-law foreign sovereign immunity.” Pet.App.3a. It also held that the Executive’s determination was “consistent” with the common law of immunity, despite permitting a result—the criminal trial of a foreign sovereign instrumentality—unheard of in world history. Pet.App.5a, 10a. The questions presented are:

1. Whether courts are bound to defer conclusively to the Executive’s common-law foreign sovereign immunity determinations in criminal cases.

2. Whether prosecutors may, consistent with the common law of foreign sovereign immunity, criminally prosecute foreign sovereign instrumentalities, including for conduct occurring within their sovereign’s territory. (I)