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Legal news from Wednesday, May 5, 2010




France court refuses to extradite Iranian engineer to US
Jaclyn Belczyk on May 5, 2010 3:28 PM ET

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[JURIST] A French appeals court on Monday refused a US extradition request for Iranian engineer Majid Kakavand, accused of illegally exporting electronic equipment to Iran for military use. Kakavand was detained in France in March 2009 after the US government issued a warrant for his arrest. Kakavand was indicted in April on charges [DOJ fact sheet, PDF] of purchasing thousands of military items from US companies and exporting them to Iran via Malaysia in violation of US sanctions against Iraq. The French court ruled that Kakavand had not violated French law [RFI report], a prerequisite to extradition. A spokesperson for the US Department of Justice (DOJ) [official website] expressed disappointment at the ruling but said the US would continue to pursue [AP report] Kakavand. Iranian authorities have repeatedly sought Kakavand's release. Kakavand has said that he plans to return to Iran after being freed.

Iran is currently facing possible UN sanctions over its nuclear program. Last month, Iranian President Mahmoud Ahmadinejad [BBC profile; JURIST news archive] strongly criticized [JURIST report] new attempts to impose UN sanctions. The Iranian leader said that actions being taken by the US and its allies in the UN Security Council [official website] are illegal and that his country will not accept any pressure. In September, Ahmadinejad denied [JURIST report] that Iran had broken nuclear development regulations in respect to a newly-disclosed nuclear facility. The statement followed a press conference where US, British, French, and German leaders said in a joint statement [press release] that Iran had violated the terms of agreements with the International Atomic Energy Agency (IAEA) [official website] by failing to disclose in a timely manner the existence of a nuclear facility. Under the terms [IAEA board report, PDF] of a 2003 protocol [text, PDF] to Iran's original IAEA Safeguards Agreement [text, PDF], Iran was obligated to disclose the existence of the plant prior to construction. Iran has previously said it will completely withdraw [JURIST report] from the IAEA if its "nuclear rights" are taken away.




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Bosnia war crimes court acquits genocide suspect
Tara Tighe on May 5, 2010 2:56 PM ET

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[JURIST] The appellate division of the Court of Bosnia and Herzegovina [official website] on Wednesday acquitted [press release; case materials] Serb wartime commander Milos Stupar of genocide [BiH Criminal Code Article 171, PDF] charges in connection with his alleged involvement in killings committed at the Srebrenica [JURIST news archive] prison camp in 1995. The verdict of the appellate court overturns a 40-year prion sentence stemming from a 2008 trial during which Stupar and six other war crimes suspects were were convicted of genocide [JURIST report] and given sentences ranging from 38 to 42 years. The trial court determined that Stupar had acted as commander of a special police force that had launched violent attacks against Bosnian Muslims at Srebrenica. The appellate court overturned the sentence based on its finding that the evidence was not compelling enough to affirmatively establish Stupar's guilt. The evidence considered upon retrial suggested that Stupar did not gain control [Reuters report] until one day after the alleged genocide and therefore could not have taken any affirmative steps to prevent the killings.

The decision of the appeals court comes just weeks after the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] resumed the war crimes trial [JURIST report] of former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive]. Karadzic is the alleged mastermind behind the violence against Bosnian Muslims during the Bosnian war [PPU backgrounder]. The war crimes trial resumed last month after the ICTY dismissed [JURIST report] Kardzic's latest motion to delay court proceedings, in which he argued that there had been a violation of his right to a fair hearing because the court had rejected previous evidentiary challenges. Karadzic is defending himself against 11 counts [amended indictment, PDF], including genocide and murder.




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Argentina lower house passes same-sex marriage bill
Jaclyn Belczyk on May 5, 2010 2:12 PM ET

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[JURIST] The Argentine Chamber of Deputies [official website, in Spanish] voted 126-109 Wednesday in favor of a bill to legalize same-sex marriage [JURIST news archive] in the country. The bill would also give gay couples the right to adopt children [Pagina 12 report, in Spanish], one of the bill's more controversial provisions. The legislation has been under consideration since last year, with more than 50,000 marching in support [JURIST report] of same-sex marriage last November. Lawmakers debated the legislation for more than 12 hours before voting. The bill must now go before the Senate [official website, in Spanish], where it is expected to pass [Reuters report]. It is unclear when that vote will take place. If the legislation is passed, Argentina would become the first Latin American country to legalize same-sex marriage.

Same-sex marriages are currently recognized in Buenos Aires and Mexico City [JURIST reports]. Uruguay remains the only Latin American country that has nationally legalized same-sex civil unions. Uruguay has since expanded the rights given to same-sex couples by passing a law last year allowing same-sex couples to adopt [JURIST report]. Canada [JURIST report] is the only American nation to have legalized same-sex marriage, and Spain [JURIST report] is the only nation in the Spanish-speaking world to have done the same. Both nations legalized gay marriage in 2005.




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Sri Lanka parliament eases state of emergency restrictions
Jaclyn Belczyk on May 5, 2010 1:06 PM ET

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[JURIST] The Sri Lankan Parliament [official website] on Wednesday eased certain restrictions under the country's state of emergency laws, which have been in place for most of the last 27 years. Lawmakers voted to extend the state of emergency [Colombo Page report] for another month but reduced some of the toughest provisions. Parliament lifted certain restrictions [BBC report] on assembly and distributing literature and reduced the power of soldiers to conduct searches. Suspects can still be held without trial, but the time period was reduced from 18 months to three months. Former Sri Lankan army chief and defeated presidential candidate Sarath Fonseka [BBC profile; JURIST news archive] called Tuesday for the emergency regulations to be completely lifted. External Affairs Minister Gamini Lakshman Peiris told parliament that the regulations would have to be lifted gradually [AFP report].

Fonseka successfully won a seat in parliament last month, despite facing two separate court-martials charging him with participating in politics while in uniform and with improperly awarding army procurement contracts. Last month, he appeared before parliament to call for his freedom [JURIST report] and for respect for the "rule of law." Fonseka was arrested [JURIST report] by the military in February after losing presidential elections held the previous month. In March, the former chief justice of the Supreme Court criticized [JURIST report] the government's treatment of Fonseka. Sarath Nanda Silva, who retired from the Sri Lankan Supreme Court last year, accused the government of using the military justice system to prevent Fonseka from participating in the upcoming elections and of violating Fonseka's civil rights. Silva also said that Fonseka's arrest was made in violation of the country's constitution [text].




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Dutch prosecutor to appeal Holocaust cartoon ruling
Erin Bock on May 5, 2010 12:53 PM ET

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[JURIST] The Dutch Public Prosecution Service [official website, in Dutch] announced Tuesday that the public prosecutor for the Utrecht District Court filed an appeal [press release, in Dutch] against the April 22 ruling [JURIST report] acquitting the Arab European League (AEL) of hate speech charges stemming from posting an inflammatory cartoon on their website. The court ruled that publishing the cartoon, which insinuated that the Holocaust was fabricated, was not a criminal offense because it was intended to be a contribution to public debate regarding a perceived double standard in the distribution of Danish cartoons depicting the Prophet Mohammed [JURIST news archive]. The prosecutor is appealing in order to determine if the cartoon was "unnecessarily offensive," stating that the court failed to rule on this issue. Although the court ruled that a disclaimer posted below the cartoon was sufficient to ensure that the cartoon was posted for the purpose of debate, the prosecutor pointed out that this disclaimer is not always visible in postings on other websites. The prosecutor also found fault with the court's agreement that the cartoon pointed out a double standard, saying that the controversy surrounding the Danish cartoon depicting Mohammed does not equate with the publishing of the AEL's cartoon. The group depicted in the Mohammed cartoon was a "criminal group," the prosecutor said, but the Jewish people "still have no share in the above social debate."

The Danish cartoons depicting Mohammed were originally published in a Danish newspaper in 2005, leading to worldwide protests and lawsuits for those who reprinted the cartoons, including suits in Yemen, France, and Jordan [JURIST reports]. The Danish government did not press criminal charges [JURIST report] against the Danish newspaper that originally printed the articles. Last month, US citizen David Headley pleaded guilty [JURIST report] to 12 counts of federal terrorism, including charges related to an alleged plot against the Danish creator and publishers of the controversial cartoons.




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India high court bans 'truth drugs' in criminal investigations
Jaclyn Belczyk on May 5, 2010 11:26 AM ET

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[JURIST] India's Supreme Court [official website] on Wednesday struck down [judgment text] the use of so-called "truth drugs" and lie detector tests in criminal investigations. The court held that the involuntary use of narcoanalysis and polygraph tests "amount[s] to an unwarranted intrusion into personal liberty," and that "no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise." The court did leave room for the use of such techniques on a voluntary basis but maintained that certain safeguards should be in place and that "the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test." The ruling is being hailed by civil rights activists [IANS report], but there is concern about the impact on law enforcement. Narcoanalysis has recently been employed in several high-profile criminal cases [AFP report] including the 2006 murders of 21 people in a New Delhi suburb.

In narcoanalysis, the suspect is injected with drugs such as sodium thiopental, which cause him to be more susceptible to questioning. Evidence obtained through the use of narcoanalysis or polygraphs was previously inadmissible in Indian court under the Evidence Act 1872 [text], but police could use the information to lead to other evidence that might be admissible.




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New York high court expands rights of nonbiological gay parents
Jaclyn Belczyk on May 5, 2010 9:54 AM ET

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[JURIST] The New York Court of Appeals [official website], the state's highest court, issued two rulings Tuesday expanding the rights of nonbiological gay and lesbian parents. In one case, the court ruled [opinion, PDF] 7-0 that a lesbian can assert parental rights over the biological child of her partner, reversing a lower court decision [JURIST report]. The court found that Debra H. could seek visitation rights from her former partner who conceived a child via artificial donor insemination (ADI) after the pair had entered into a civil union in Vermont. The court held, "that where a child is conceived through ADI by one member of a same sex couple living together, with the knowledge and consent of the other, the child is as a matter of law - at least in the absence of extraordinary circumstances - the child of both." Director of Constitutional Litigation at Lambda Legal [advocacy website] Susan Sommer hailed the ruling [press release] as "a terrific outcome for our client," bur urged the New York legislature to "pass legislation clarifying children's legal relationships with both their intended parents, regardless whether the parents have entered into a marriage or civil union." In a separate case, the court ruled [opinion, PDF] 4-3 that a lesbian could seek child support from her former partner.

Gay rights continue to be a contentious issue both in New York and throughout the country. In December, the New York Senate rejected legislation [JURIST report] that would have legalized same-sex marriage [JURIST news archive] in the state. Last year, the Manhattan Surrogate Court ruled that the surviving partner of a same-sex marriage performed in Canada is entitled to inherit the estate [JURIST report] of a deceased spouse. In 2008, New York Governor David Paterson issued a mandate requiring that any and all out-of-state same-sex marriages be recognized [JURIST report] as legal within the state of New York. Same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and Washington, DC [JURIST reports]. Same-sex civil unions are currently recognized in Washington, New Jersey, Oregon, and Nevada [JURIST reports].




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Former Canada terrorism detainee sues government
Jaclyn Belczyk on May 5, 2010 8:53 AM ET

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[JURIST] A Syrian native held in Canada for more than eight years on a national security certificate [text; PSC backgrounder] on Tuesday sued the Canadian government [statement of claim, PDF] for negligence and false imprisonment. Hassan Almrei filed suit [CP report] in the Ontario Superior Court of Justice [official website] against the Canadian Security Intelligence Service (CSIS), the Royal Canadian Mounted Police, Citizenship and Immigration Canada, and the Canada Border Services Agency [official websites] seeking $16 million in damages. Almrei was arrested more than eight years ago by the CSIS on terror suspicions. A judge struck down [JURIST report] his security certificate in December, finding that the evidence presented by CSIS did not hold up under scrutiny. Almrei came to Canada in 1999 on a false passport and attained refugee status the following year. He is currently seeking permanent resident status.

The security certificate law, used to arrest and deport non-Canadians considered threats to national security, has become controversial in recent years because it relies on evidence heard in secret, and detainees are not informed in full detail of the allegations against them. Earlier in December, it was reported that the Canadian government has begun reviewing [JURIST report] its security certificate system. Public Safety Minister Peter Van Loan [official profile] said the government is considering making significant changes to the law or abolishing it completely. In September, the government withdrew [National Post report] a certificate against Moroccan-born Montreal resident Adil Charkaoui in lieu of subjecting its evidence against him to review in court. Charkaoui is also suing the government.




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