October 2010 Archives


Somalia parliament approves new PM following constitutional dispute
Erin Bock on October 31, 2010 4:20 PM ET

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[JURIST] The Somali parliament on Sunday voted 297-92 to approve [press release] new Prime Minister Mohamed Abdullahi Mohamed, after several delays due to a constitutional dispute over the confirmation procedure. Somali President Sharif Sheikh Ahmed Sheikh Mahmud [official profile] had argued that due to the silence of the Somali Transitional Federal Charter [text, PDF] on confirmation procedures, Somalia's 1960 Constitution [text, PDF] must control, which states that all confirmations must be expressed by open vote. Speaker of Parliament Sharif Hassan Sheikh Aden [BBC profile] disputed this, pushing for a secret ballot. Supporters of Abdullahi say he may have a better chance [AP report] than predecessors of controlling Islamist insurgents and pirates [JURIST news archive] the come from the country.

Last week, Transparency International (TI) [advocacy website] ranked Somalia [JURIST report] as the most corrupt country in the world in its 2010 Corruption Perception Index (CPI) [text, PDF]. In April, Human Rights Watch (HRW) [advocacy website] critized the violent and repressive conditions [JURIST report] in southern Somalia that have been implemented by the Islamist group al-Shabaab [CFR backgrounder]. Though the report found that portions of the country under al-Shabaab rule are more stable when compared to those under the control of Ahmend's Transitional Federal Government, that stability comes at a steep price including harsh punishments and executions without due process.




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Bahrain election results prevent corruption investigation
Erin Bock on October 31, 2010 3:49 PM ET

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[JURIST] Bahrain released election results [official results, in Arabic] Sunday in its second round of parliamentary elections, revealing that pro-government Sunni parties had maintained a majority, preventing opposition groups from beginning a corruption investigation [LAT report] of the ruling family. Opposition Shi'ite parties represent the majority of Bahrain's population and claim they experience discrimination in government jobs and housing and have said that they were prevented from casting their votes in the first round of elections held last week [Guardian report]. Despite this, US Secretary of State Hillary Clinton congratulated the Bahraini government [statement] on a successful and peaceful election and voiced support for democratic development in the region.
With this election, its third by universal suffrage since 2002, Bahrain has demonstrated that multi-ethnic, multi-confessional societes can address their challenges through peaceful reform and representative institutions. The United States is committed to supporting this important democratic development in the region. The Kingdom of Bahrain is a valued and strategic ally with a common interest in strengthening participatory democracy.

The trial of the 25 Shi'ite Muslim opposition activitists, charged with plotting to overthrow the government and supporting terror cells, began on Thursday in Bahrain [JURIST report]. Shi'ite frustration with the current Sunni controlled government came to a head in August when the government cracked down on Shi'ite opposition leaders, leading to street protests. The activitists pleaded not guilty and said that they were working for an unnamed foreign government [JURIST report]. Rights groups have criticized these charges, many against at least 10 promininet Shi'ite opposition figures, as signs of repression. The Bahraini government has faced repeated criticism over its human rights record, including a report issued by Human Rights Watch (HRW) [advocacy website] in February that claimed the government had reverted to using torture [JURIST report] to gain confessions from detainees after a decade of reform banning such practices. The US State Department and the Cairo Institute for Human Rights Practices [advocacy website] have also voiced concerns [JURIST report] over the country's human rights practices.




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Niger holds referendum on constitution following coup
Dwyer Arce on October 31, 2010 11:15 AM ET

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[JURIST] Niger held a referendum Sunday on whether to adopt a new constitution following February's coup [JURIST report], in which a military government replaced that of then-president Mamadou Tandja [BBC profile]. If approved, the constitution would limit the powers of the president, confining officeholders to two terms and require presidential candidates to be between the ages of 35 and 70. The constitution would also formalize the separation of religion and government, grant immunity to the coup leaders and bar members of the military from running for office. Assuming passage, presidential and parliamentary elections have been scheduled for January 31 [AFP report] in order to transfer power to a civilian government by April 6 as mandated by the constitution. The constitution has faced little opposition and has not been opposed [Bloomberg report] by any of Niger's 56 political parties. The results are expected later in the week. If passed, the constitution will be the seventh since Niger's independence from France in 1960.

In February, on the same day as the coup, Niger's military leaders, called the Supreme Council for the Restoration of Democracy (CSRD), suspended the country's former constitution [JURIST report] and dissolved all state institutions. The coup, which left at least three Nigerien soldiers dead, came six months after a referendum was passed abolishing presidential term limits [JURIST report] and allowing Tandja to remain in office for three more years and to run in any subsequent elections. Nigerien opposition parties denounced the referendum, claiming that Tandja inflated poll numbers to support the new constitution's adoption.




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Apple sues Motorola for touch-screen patent infringement
Dwyer Arce on October 31, 2010 10:06 AM ET

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[JURIST] Apple [corporate website] filed two lawsuits [first complaint, PDF; second complaint, PDF] Friday against rival smartphone maker Motorola [corporate website] alleging that several of Motorola's products infringe six patents owned by Apple. The lawsuits, filed in the US District Court for the Western District of Wisconsin [official website] claim that the products violate federal law [35 USC § 271] because they utilize touch-screen technologies that have been patented by Apple. Apple is demanding the case be tried by a jury [FRCP 38(b)], is seeking a permanent injunction against Motorola's use of the patents and wants royalties for their past and future use. It is also seeking a judgment declaring Motorola's actions "willful and deliberate," entitling Apple to treble damages [35 USC § 284] and a finding that the case is "exceptional," entitling Apple to attorney fees [35 USC § 285].

Smartphone makers have pursued several lawsuits and other legal remedies against one another in recent months alleging patent infringement. Last week, digital security company Gemalto [corporate website] filed suit against HTC [JURIST report], Samsung Electronics, Motorola and Google based on the use and sale of the Android operating system and the Dalvik Virtual Machine, which Gemalto claims infringe on a patent held by the company. In June, the US International Trade Commission (ITC) [official website] launched an investigation [JURIST report] into allegations of patent infringement in Apple's portable electronic devices. In March, Apple filed a patent infringement lawsuit against HTC [JURIST report] alleging that the rival smartphone maker infringed on 10 of its patents related to touch-screen interfaces.




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Federal judge rejects challenge to Hawaii campaign finance legislation
Sarah Paulsworth on October 30, 2010 2:26 PM ET

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[JURIST] The US District Court for the District of Hawaii [official website] on Friday rejected a challenge to one of the state's campaign finance laws. In the case of Yamada et. al v. Kuramoto et. al., Judge Michael Seabright rejected challenges to two Hawaiian states laws [Honolulu Star Advertiser report] according to which political action committees must disclose the names of contributors and include disclaimers in advertisements. The hearing stemmed from a complaint [text, PDF] originally filed in August in which co-plaintiffs Jimmy Yamada and Russell Stewart challenged Hawaii's $1000 limit on donations to political action committees. Both men were seeking to donate $2,500 to the Aloha Family Alliance Political Action Committee [official website]. On the basis of their lawsuit, Seabright found the donation limit unconstitutional, citing the Supreme Court's decision in Citizens United v. Federal Election Commission [Cornell LII backgrounder], and approved an injunction [decision, PDF] on October 7 prohibiting the state from enforcing against them the $1,000 limit on donations while the state appeals. The US Court of Appeals for the Ninth Circuit [official website] upheld [decision, PDF] this injunction on October 20.

Campaign finance has become a contentious issue recently, particularly after the Citizen's United decision, which eased restrictions [JURIST report] on political and campaign spending by corporations and unions based on First Amendment grounds. Earlier this month, California's Fair Political Practices Commission (FPPC) [official website] issued a rule [JURIST report] that will require sponsors of "thinly veiled" political ads reveal their funding sources. In addition, the Disclose Act [materials], which prohibits corporations receiving federal contracts worth more than $7 million from spending money on "electioneering communications" and prohibits foreign-controlled domestic corporations from financing campaigns, was approved by the House of Representatives, but stalled in the Senate [JURIST reports] in September.




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Vatican to implement EU financial crimes legislation by end of year
Sarah Paulsworth on October 30, 2010 1:18 PM ET

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[JURIST] A spokesperson for the European Commission [official website] on Friday said that the Vatican [offical website] will implement the European Commission's laws against money laundering and financial fraud [EU materials] by the end of the year. According to Amadeu Altafaj, spokesman for EU Monetary Affairs Commissioner Olli Rehn [European Commission website], EU and Vatican officials discussed a draft law consistent with the EU rules [Bloomberg report] on October 15. Negotiations began after the Vatican bank was accused of a series of financial improprieties. In addition, the Holy See must set up an implementing body for the new legislation that will control the Vatican and the Holy See's financial institutions. Pursuant to the agreement, the Vatican must implement the new laws by December 31.

Italian law enforcement officials seized €32 million from a Vatican bank account [CBC News report] in September and allege that the Vatican violated laws by not indicating where the money in some transactions was coming from. Italian prosecutors working on that case have expressed that recent actions by the Holy See to harmonize its legislation with EU law will not affect their position [AP report] on case related to the €32 million that have been seized. In addition to dealing with allegations of financial crime, the Vatican is still addressing allegations of sexual abuse within the Catholic church. Since 2007, in the US alone the Church has settled over 500 cases [JURIST news archive] of abuse for over $900 million.




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DOJ argues isolated genetic material not patentable
Daniel Makosky on October 30, 2010 1:01 PM ET

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[JURIST] The Department of Justice (DOJ) [official website] on Friday filed an amicus curiae brief [text, PDF] in the US Court of Appeals for the Federal Circuit [official website] revising the government's stance on patenting isolated genetic material, including human genes. The position represents a significant departure from established policy, which has permitted the Patent and Trademark Office [official website] to grant patents for isolated genes. The government argues that DNA is a product of nature and thus unpatentable "because it is not the inventive work of humankind." The DOJ is urging the Federal Circuit to affirm a March ruling that invalidated [JURIST report] two such patents. Opponents to the new stance contend that isolated genes are chemicals that differ from their natural state in the body and are thus protectable, and that a decision to the contrary would inhibit research due to limited profitability. According to the government's brief, however, adopting the policy would not significantly impair biotechnology researchers as artificial modifications to DNA would still be eligible for patents. Opponents to the new stance, however, argue that isolated genes are chemicals that differ from their natural state in the body and are thus protectable.

The US District Court for the Southern District of New York's [official website] March ruling [opinion, PDF] nullified patents held on two genes linked to hereditary ovarian and breast cancer "[b]ecause the claimed isolated DNA is not markedly different from native DNA as it exists in nature." If the decision is upheld, it could invalidate patents covering nearly 2,000 human genes. The District Court's decision stands in contrast to the stance taken in the EU [Nature report], which allows such patents. Genetic research companies currently hold patents to approximately 20 percent of the human genetic code, many of which are associated with diseases such as Alzheimer's and cancer. The holder of a gene patent can prevent others from studying the gene and can also develop testing for specific genetic mutations, which they can then market without direct competition.




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UN biological diversity body sets environmental targets
Daniel Makosky on October 30, 2010 12:17 PM ET

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[JURIST] The tenth Conference of the Parties to the UN Convention on Biological Diversity (CBD) [official website] on Saturday concluded its proceedings with delegates agreeing [press release, PDF] to the Nagoya Protocol. The protocol identifies 20 goals within five categories designed to protect biodiversity, including a 50 percent reduction in the extinction rate [NYT report] by 2020. Preservation targets are also established, expanding protected land areas to 17 percent from 12.5 and raising the percentage of protected oceans from less than one to 10. Additionally, the Protocol includes provisions for sharing scientific discoveries derived from plants or animals between advanced and developing nations. The conference was attended by representatives of the 193 of parties to the CBD, with 122 cabinet ministers and five heads of state conducting the most complex negotiations. With the help of financial support from the EU, France, Norway and USD $2 billion from Japan, the Protocol is expected to become effective in 2012.

India, a party to the CBD, continued its emphasis on environmental protection last week when it introduced a new court system [JURIST report] devoted solely to environmental litigation. India has actively maintained an emphasis on environmental issues at a time of rapid growth. In June Australia, another signatory to the CBD, initiated proceedings [JURIST report] against Japan in the International Court of Justice (ICJ) [official website] for breaching its international obligations by failing to eliminate commercial whaling. Curtis Doebbler, a professor of law at the University of Nablus, has called climate change, and the associated loss of biodiversity, the greatest threat to the rights of Africans [JURIST op-ed].




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Guatemala police convicted in disappearance with evidence from rediscovered archive
John Paul Putney on October 29, 2010 3:35 PM ET

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[JURIST] A Guatemalan judge on Thursday sentenced former National Police (NP) officers Hector Roderico Ramirez Rios and Abraham Lancerio Gomez to 40 years in prison for the 1984 forced disappearance of Fernando Garcia, based on evidence found in an abandoned NP archive discovered in 2005 [ReVista article]. In February, Garcia, a student and union leader, was shot and taken to a police hospital never to be seen again. The case was brought to trial 26 years later after new evidence was uncovered in an abandoned NP archive found in a former munitions dump in Guatemala City in 2005. Students and labor activists were frequently targeted throughout Guatemala's 36-year civil war [GlobalSecurity backgrounder] from 1960-1996, killing an estimated 200,000 unarmed civilians and disappearing another 40,000. The UN-sponsored Commission for Historical Clarification found the government was responsible for 93 percent of the crimes and rebuked the government for denying the existence of official records of the conflict. Ramirez Rios and Gomez are the first to be tried and convicted [Reuters report] based on information recovered from the NP archive. Although the officers were not convicted on all the charges brought, rights activists hope this case will serve as a catalyst for more investigations [El Periodico report, in Spanish].

Guatemala's government has been plagued with accusations of corruption and impunity for government officials, including law enforcement. In August, the International Commission Against Impunity in Guatemala (CICIG) [official website, in Spanish] announced that it had issued arrest warrants for former government officials including those for former interior minister Carlos Vielmann, former police director Erwin Sperissen and former prison director Alejandro Giammettei in relation to the extrajudicial killing of several inmates [JURIST report]. In June, the Guatemalan Constitutional Court removed Attorney General Conrado Reyes from power [JURIST report]. Reyes was appointed to the position by Guatemalan President Alvaro Colom, but he came under close scrutiny when the former head of the CICIG, Carlos Castresana, resigned accusing Reyes of having ties to organized crime [JURIST report]. In March, Guatemalan authorities arrested two high-ranking police officials leading the country's war on drugs on charges of corruption and drug trafficking in connection with a drug-related shoot-out [AP report] last year between drug traffickers and a gang of police accused of stealing large quantities of cocaine for profit. In January, Guatemalan authorities issued an arrest warrant [JURIST report] for former president Alfonso Portillo [CIDOB profile, in Spanish], after the US government requested his extradition to face charges of money laundering.




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UN rights expert calls for investigation of alleged rapes on Angola-DRC border
Matt Glenn on October 29, 2010 2:04 PM ET

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[JURIST] UN Special Representative for Sexual Violence in Conflict Margot Wallstrom [official profile] on Thursday condemned alleged gang rapes of at least 30 Congolese women who were being deported from neighboring Angola [BBC backgrounder; JURIST news archive] and called for both countries to investigate. A UN official indicated that the alleged victims [UPI report] were among about 150 Congolese deported from Angola [UN News Centre report] recently. A 2009 agreement [BBC report] between Angola and the Democratic Republic of the Congo (DRC) [BBC backgrounder; JURIST news archive] called for each government to cease mass expulsions of the other's citizens. Wallstrom called on the governments of both countries [UN News Centre report] to identify the perpetrators and enhance efforts to protect women and children. Also Thursday, US State Department [official website] Assistant Secretary Philip Crowley told reporters [text]:
[T]he United States has repeatedly condemned the epidemic of sexual violence in conflict zones around the world and continues to speak out on this issue. We support efforts to protect local populations against sexual and gender-based violence and to bring to justice those who commit such atrocities. We are reacting to reports of rapes along the Angola-Congo border and we encourage Angolan officials to investigate these allegations and determine who perpetrated the alleged human rights violations against Congolese women before their deportation.
Crowley urged both governments to address migration issues and protect women and children.

Many in the international community have grown concerned by mass rapes in the Congo region recently. Earlier this month, UN peacekeepers and DRC forces arrested [JURIST report] rebel group Mai Mai Cheka [GlobalSecurity backgrounder] leader Lieutenant Colonel Sadoke Kokunda Mayele for allegedly leading mass rapes [JURIST news archive], along with the Democratic Forces for the Liberation of Rwanda (FDLR) [Global Security backgrounder] and other rebel groups, in the DRC in late July and early August. Earlier this month, the UN released a report on war crimes [text, PDF; JURIST report] and human rights abuses in the DRC. The report, originally expected to be released in September [JURIST report], lists 617 of the most serious violations of human rights, including violence against children, genocide and mass rape, committed between 1993 and 2003. Last month, the UN Security Council [official website] issued a statement condemning the recent mass rapes [text; JURIST report] and calling for justice for the victims. Also last month, Wallstrom called for perpetrators of mass rapes, including heads of DRC militias, to face war crimes charges [JURIST report].




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Rights groups urge Senate to pass bill allowing cameras in Supreme Court
Zach Zagger on October 29, 2010 1:44 PM ET

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[JURIST] A coalition of 37 public interest groups, led by the American Civil Liberties Union, the Citizens for Responsibility and Ethics in Washington and the Alliance for Justice [official websites], sent a letter [text, PDF] to the Senate Thursday urging it to pass legislation [S 446 text, PDF] that would allow television coverage of Supreme Court proceedings. The letter argues that coverage of Supreme Court oral arguments would allow the public to better understand the justice system, which will "inure to the benefit of all Americans by heightening their awareness of one of the three co-equal branches of our Federal government." The letter cited a C-SPAN [official website] poll where 63 percent of the respondents supported cameras in the Supreme Court, a number that increased to 85 percent when the respondents not in favor of the cameras were told that the Court has limited seating and only meets in Washington DC. The legislation was voted out of the Judiciary Committee in June by a vote of 13-6 and was sponsored by Senator Arlen Specter (D-PA) [official website], who has been a long supporter of cameras in the court.

The Supreme Court has been reluctant to allow its proceedings to be televised. In April, Justice Stephen Breyer said he was wary [WP report] of cameras in the court because it would put pressure on the trial courts to do the same and that only showing the oral arguments would be insufficient for the public to understand what was happening. Specter, on the other hand, has pushed for cameras in the court [WP op-ed], citing the controversial Bush v. Gore case, where cameras covered the events following the 2000 presidential election up to the point it went before the court. Professor Majorie Cohn of Thomas Jefferson School of Law, has written about the need for more television coverage of the court and, in January, criticized [JURIST Op-Ed] the court for stopping the federal trial court hearing California's Proposition 8 case as a way to use procedural excuses to keep a controversial issue hidden.




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Federal appeals court upholds 2 of 4 Conrad Black convictions
Drew Singer on October 29, 2010 1:43 PM ET

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[JURIST] The US Court of Appeals for the Seventh Circuit [official website] on Friday upheld two of four convictions [opinion, PDF; oral argument, MP3] of Canadian-born media mogul Conrad Black [CBC profile; JURIST news archive], one for fraud and one for obstruction of justice. The court held that the other two fraud charges must be dismissed after the US Supreme Court upheld the "honest service" doctrine [18 USC § 1346 text] and ruled that it applied [JURIST report] to Black's case. The appeals court noted that, for sentencing purposes, the "jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence." Prosecutors indicated that they were pleased with the result [BBC report], despite the two charges being dismissed.

Black originally faced 17 counts of fraud, obstruction of justice, racketeering and tax evasion. He was accused [indictment, PDF] by the US government of diverting more than $80 million from Hollinger International and its shareholders [JURIST report] during Hollinger's $2.1 billion sale of several hundred Canadian newspapers. In July 2007, Black was convicted of mail fraud and obstruction of justice and sentenced to 78 months in prison. The court of appeals initially rejected Black's appeal, holding that § 1346 may be applied in a private setting regardless of whether the defendant's conduct risked any foreseeable economic harm to the victim. The Supreme Court granted certiorari last year to determine the scope of the "honest services" clause, and held that Black had properly objected to the jury instructions at trial concerning the honest service doctrine and remanded the case to the circuit court for an opinion consistent with the judgment in Skilling v. United States [JURIST report]. Black is also currently facing charges before the US Tax Court for failure to pay nearly $71 million in taxes [Bloomberg report]. He denies being obligated to pay the taxes because he is not a US citizen.




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Iraq Kurdistan journalists facing violence, lawsuits: HRW
Aman Kakar on October 29, 2010 1:41 PM ET

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[JURIST] Journalists in Iraqi Kurdistan who criticize the government are facing increased intimidation, violence and lawsuits [press release], Human Rights Watch (HRW) [advocacy website] reported Friday. HRW criticized the secret investigation into the May killing of journalist Saradasht Osman, who had written articles criticizing the Kurdistan Democratic Party (KDP) [party website] and Patriotic Union of Kurdistan (PUK) [GlobalSecurity backgrounder], the region's two ruling parties. HRW also said that journalists in Iraq have faced increasing defamation claims for articles criticizing politicians, political parties and government officials. Ziad al-Ajili of Baghdad-based Journalistic Freedom Observatory (JFO) [advocacy website, in Arabic] said that officials have filed at least 200 lawsuits over the past two years. Under a 2008 press law passed by the regional government, imprisonment is no longer a penalty for publication-related offenses, authorities can no longer shut down media organizations as a penalty and there is a cap on the amount of damages a court can order. However, HRW claims that the 2008 law is not widely applied, and courts have allowed cases to be filed under the 1986 penal code, which provides for fines and jail times. The KDP has filed more than 10 lawsuits in the past two months under the 1969 law, according to the Metro Center to Defend Journalists, a JFO affiliate focusing on northern Iraq.

In August 2009, the Iraqi Government [official website, in Arabic], announced the drafting of a law that proposes a framework to safeguard Iraqi journalists [JURIST report]. The proposed law has been stalled in the Parliament since its proposal [AP report]. In July 2008, Soran Mama-Hama, an investigative reporter for Livin Magazine who had written articles critical of Kurdish authorities, was assassinated in Kirkuk. Several journalists have fled Northern Iraq after receiving threats following critical articles about the two leading political parties. Reporters Without Borders (RWB) [advocacy website] ranked Iraq 130 in their 2010 Press Freedom Index. In September, RWB released a report detailing the 230 murders of journalists [materials] that have occurred since 2003. Their profile of Iraq lists several journalists who have faced lawsuits and have been victimized by violence [materials].




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China court official criticizes Nobel committee for awarding peace prize to Liu Xiaobo
Julia Zebley on October 29, 2010 1:28 PM ET

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[JURIST] A spokesperson for China's Municipal Higher People's Court on Friday criticized [Xinhua report] those responsible for granting the Nobel Peace Prize to dissident Liu Xiaobo [BBC profile; JURIST news archive]. Liu, who was awarded the 2010 Peace Prize [JURIST report], is currently serving an 11-year sentence for subversion of state power. The unnamed spokesperson reinforced China's dedication to the rule of law and criticized the international community, saying:
China is a nation governed by law. Its judicial sovereignty brooks no interference and the dignity of the judiciary must be safeguarded. Anyone, who violates Chinese law, must be punished according to law. ... China's judicial organs will strictly follow Chinese law and the court verdict, which has come into effect, to execute the punishment given to Liu. ... We strongly oppose some people making arbitrary criticism on China's judicatory with double standards.
While Liu remains imprisoned in China, the Nobel committee is unsure who will accept the award [Reuters report] at the ceremony in December. His wife, activist Liu Xia, has been under house arrest [Guardian report] in Beijing since earlier this month after visiting her husband in prison to notify him of the award.

The Nobel committee announced that Liu won the 2010 award for being one of China's most prominent non-violent activists. His alleged subversive acts include co-authoring Charter 8 [text], a document critical of China's position as a single-party state and alleged human rights violations, and being a participant in the Tiananmen Square protests [BBC backgrounder]. Liu's initial involvement in Tiananmen Square resulted in a two-year prison sentence, while his current 11-year sentence began following a December 2009 trial [JURIST report]. Liu appealed his sentence, and a Chinese appeals court upheld the judgment [JURIST report] in February. Sarah Cook, the Asia Research Analyst and Assistant Editor for Freedom House, called the sentence [JURIST comment], "symptomatic of more systemic problems and politicization of the Chinese legal system."




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Myanmar high court hears Suu Kyi appeal
Brian Jackson on October 29, 2010 12:55 PM ET

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[JURIST] The Myanmar Supreme Court on Friday heard the final appeal filed by pro-democracy activist Aung San Suu Kyi [BBC profile; JURIST news archive] challenging the extension of her house arrest. The hearing comes two weeks before Suu Kyi's house arrest is scheduled to end [JURIST report], but her lawyers maintain their goal is to prove her innocence [BBC report]. Suu Kyi's appeal was heard nine days before Myanmar will hold its first election in 20 years, elections that have been the target of significant skepticism [NYT report] around the world. Ahead of the election, UN Secretary General Ban Ki-Moon [official profile] called on Myanmar to release all political prisoners [UN Radio report], including Suu Kyi, saying, "[b]y releasing all political prisoners, the Myanmar authorities could help open the way for national reconciliation." A decision on the Suu Kyi appeal is expected within two weeks.

Suu Kyi's detention is widely believed to be focused on preventing her participation in the upcoming election. Under Myanmar's current election laws [JURIST report], a provision prohibiting political prisoners from seeking public office prevents Suu Kyi from participating as long as she remains under house arrest. As part of the final appeal of the house arrest term extension, Suu Kyi also seeks annulment of that portion [JURIST report] of the controversial law. The suit also seeks to stop the dissolution of her opposition party, the National League for Democracy (NLD) and requests the establishment of a parliament of lawmakers who won in the 1990 elections. Suu Kyi, a democracy advocate and Nobel Laureate, has spent 14 of the past 20 years in prison or under house arrest for alleged violations of an anti-subversion law [text, PDF].




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ICC president urges international community to arrest war crimes suspects
Megan McKee on October 29, 2010 9:05 AM ET

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[JURIST] President of the International Criminal Court (ICC) [official website], Judge Sang-Hyun Song [official profile], called Thursday on the international community to redouble its efforts to arrest [press release] eight suspects sought for alleged war crimes, crimes against humanity or genocide. Of the eight individuals with outstanding arrest warrants are four commanders of the Ugandan Lord's Resistance Army (LRA) [BBC backgrounder] who have evaded arrest for over five years. The LRA is accused of killing, raping and mutilating more than 1,200 men, women and children, abducting at least 1,400 civilians and displacing almost 300,000 others. Sudanese President Omar al-Bashir [case materials; JURIST news archive] also continues to evade arrest. Al-Bashir is charged with various counts of war crimes, crimes against humanity and genocide. Song said that the failure to arrest these individuals has a devastating effect on victims and emphasized that a lack of cooperation will allow impunity to flourish.

Earlier this week, the ICC requested that Kenya arrest al-Bashir [JURIST report] when he visits the country for an Intergovernmental Authority for Development summit. In August, former UN secretary-general Kofi Annan [official profile; JURIST news archive] urged Kenya to reaffirm its commitment [JURIST report] to the ICC after it welcomed al-Bashir to a celebration for the country's adoption of a new constitution [JURIST report]. Days earlier the ICC reported Kenya [decision, PDF; JURIST report] to the UN Security Council and the Assembly of States Parties to the Rome Statute over al-Bashir's visit. The ICC also reported Chad [decision, PDF], another member state, for welcoming al-Bashir in July. During al-Bashir's visit to Chad, ICC chief prosecutor Luis Moreno-Ocampo [official profile] pledged that al-Bashir would eventually face trial before the ICC [JURIST report].




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Kenya cabinet approves constitutional transition funds
Daniel Makosky on October 29, 2010 8:05 AM ET

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[JURIST] The Kenyan Cabinet [official website] on Thursday authorized [press release] a 3.5 billion shilling expenditure to finance the transition to the country's new constitution. The funds, roughly USD $43 million [Reuters report], are intended to facilitate implementation of the revised charter by the close of the current fiscal year. The new constitution includes numerous checks on presidential authority [JURIST report], among which are the creation of a supreme court and senate.The constitution also requires reforms [Guardian report] to the nation's judiciary and land tenure system and improvements in civil rights and women's representation. The document has been received as one of the most significant events in Kenya since its independence, and its implementation was originally thought to require as long as five years.

Kenyan President Mwai Kibaki [official profile] signed the new constitution into law in August, weeks after it was approved [JURIST report] by popular referendum. The document's creation was part of a power-sharing agreement [JURIST report] reached in 2009 between Kibaki and opposition leader Prime Minister Raila Odinga [official website] that brought an end to the civil unrest that followed the contested 2007 presidential election [JURIST report]. Election officials sought to make the referendum as inclusive and peaceful as possible by allowing prisoners to vote and prosecuting those who suggested violence in reaction to the changes [JURIST reports] under hate speech laws.




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Hezbollah leader calls for boycott of UN-backed Lebanon tribunal
Megan McKee on October 28, 2010 3:11 PM ET

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[JURIST] Secretary-General of Hezbollah [CFR backgrounder] Sheikh Hassan Nasrallah [BBC profile] called Thursday for all Lebanese to boycott the UN Special Tribunal for Lebanon (STL) [official website; JURIST news archive], a probe into the assassination of former prime minister Rafik Hariri [JURIST news archive]. A crisis is currently developing [AFP report] in Lebanon due to unconfirmed reports that suggest the tribunal is set to implicate members of Hezbollah as participants in the assassination of Hariri. Nasrallah's speech came in the wake of a minor attack [STL report] against STL staff members, which took place Wednesday in a Hezbollah-controlled suburb of Beirut. In addition to calling on all Lebanese citizens and politicians to boycott the tribunal, Nasrallah stated that "[a]ny further cooperation with the tribunal is equal to an attack on the resistance." Current Prime Minister Saad Hariri [official website], son of the former primer minister, has vowed to see the UN tribunal through.

In August, Hezbollah officials submitted evidence [JURIST report] to the STL linking Israel to the the assassination of Rafik Hariri. The submission was in response to a request by the tribunal [JURIST report] for Nasrallah to turn over all information he possesses to the STL. The statement was issued by the tribunal after Nasrallah claimed to have proof that Israel was behind the assassination. Nasrallah said he would present concrete evidence proving that Israeli agents had sought to exploit divisions between Hariri's March 14 Alliance and the opposition March 8 Alliance, of which Hezbollah is a member. The STL was established [JURIST report] in 2005 at the request of the Lebanese government to try those alleged to be connected to the bombing in which Hariri was killed by explosions detonated near his motorcade in Beirut in February 2005.




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EU court reinstates ban on import of seal products
Sarah Posner on October 28, 2010 2:49 PM ET

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[JURIST] The EU Court of Justice [official website] has reinstated a ban on the import of seal products, according to a ruling [judgment text, in French] released Thursday rejecting challenges by Canada's Inuit hunters and fur traders. Regulation (EC) No 1007/2009 [text, PDF], which recognizes seals as "sentient beings that can experience pain, distress, fear and other forms of suffering," and bans all imports containing seal products, took effect in August, but the Inuit hunters were temporarily exempted [JURIST report]. Judge Marc Jaeger ruled this week that the ban should be fully implemented, holding that the plaintiffs failed to demonstrate an imminent financial hardship resulting from the ban to warrant an application for interim relief:
Therefore, the applicants have not established the seriousness of the alleged harm, as affects each of them individually, and this assumes that their expectations relative to the impractical character of the rules of execution are founded. Consequently, the condition related to the urgency cannot be considered as fulfilled as it concerns them.
The ruling could be appealed [AFP report], but plaintiffs have not yet indicated whether they will do so.

Representatives of Canada's Inuit population sued the EU [JURIST report] in January, arguing that the hunting represented a traditional aspect of the Inuit's lifestyle. The Canadian government took action against the ban [press release] in November, initiating the World Trade Organization [official website] dispute resolution process by requesting consultations. The ban was implemented in September 2009 following extensive public pressure to end seal hunting by groups citing humanitarian considerations. More narrow European restrictions imposed in 1983 caused the industry to suffer a sharp decline. Commercial seal hunting is an economic and cultural staple for the Inuit, who contend that their methods are necessary and humane.





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UK intelligence chief defends using secrecy to protect national security
Maureen Cosgrove on October 28, 2010 11:52 AM ET

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[JURIST] The head of the UK's Secret Intelligence Service (SIS) [official website] made a public statement Thursday defending the use of secrecy [text] for protecting national security, but also acknowledging concerns over some of the agency's adopted tactics. SIS Chief John Sawers [BBC profile] addressed questions about the value of a secret intelligence effort and whether the public could be confident that the SIS's work is "lawful, ethical, and in their interests." Of the three services forming the UK intelligence community, SIS,also known as MI6, specializes in operations abroad, dealing with threats and gathering intelligence from various sources around the world. In his speech, Sawer outlined the process the agency uses to obtain, report and protect intelligence information. He defended the SIS secrecy practices related to protecting British citizens from al Qaeda [JURIST news archive] terrorist operations, cyber threats and proliferation of nuclear weapons, and emphasized the importance of secrecy in facilitating long-range strategic intelligence and military support and security. The National Security Council and the 1994 Intelligence Services Act [text] set the legal framework for SIS conduct and ensure that the SIS is held accountable for its actions. Sawer formally communicated the SIS's position on torture [JURIST news archive]:
Torture is illegal and abhorrent under any circumstances, and we have nothing whatsoever to do with it. If we know or believe action by us will lead to torture taking place, we're required by UK and international law to avoid that action. And we do, even though that allows the terrorist activity to go ahead.
Finally, Sawer noted his concern about Parliament's decision to allow intelligence information in the courts without confidence of protection, but recognized the delicate balance between a duty to protect the public from security threats and the rights of citizens to raise complaints and have access to fair trials. This speech marks the first public address by a serving chief of the agency in its 101-year history.

This is not the first time the SIS has been forced to address the issues surrounding secrecy and torture. These issues were underscored in May when the England and Wales Court of Appeal [official website] handed down a judgment [text; JURIST report] overturning a ruling of a UK high court, which held that defendants, members of MI5 [official website] and MI6, could utilize a "closed material procedure" that would allow them to rely on certain evidence without disclosing it to opposing counsel or committing it to the public record. In February, an appeals court ruled [JURIST report] that the government must disclose several paragraphs [text] detailing the allegations of mistreatment of terrorist suspect Binyam Mohamed [JURIST news archive] that were previously omitted from an earlier ruling in his criminal trial. Mohamed was returned to the UK in 2009, four months after charges against him were dismissed [JURIST reports].




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Kuwait appeals court upholds acquittal of eight accused of planning attack on US base
Aman Kakar on October 28, 2010 11:51 AM ET

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[JURIST] A Kuwaiti appeals court on Thursday upheld the acquittal of eight men accused of attempting to form an al Qaeda cell and planning to attack a US base 70 miles south of Kuwait City. The men were tried and acquitted by a lower court [JURIST report] in May, with two of the men, Mohsen al-Fadhli and Mohammad al-Dossari, being acquitted in absentia. Al-Fadhli has been wanted by Kuwaiti security forces for the past five years, and Al-Dossari is standing trial in Lebanon on charges of terrorism. Five of the remaining defendants were released from custody following the original acquittals, while the sixth defendant is currently serving a life sentence on unrelated terror charges. The court of appeals also upheld the lower court's ruling that the men had been tortured by the Kuwaiti security service. Adel Abdulhadi, a lawyer for the acquitted men, said that the defense team was considering suing [AFP report] the interior ministry for the alleged torture. The prosecution still has the option of appealing the acquittals [Reuters report] to Kuwait's highest court, although they have not yet indicated whether they will do so.

US courts have also conducted numerous trials for those accused of plotting against the military. In February, a US federal court convicted [JURIST report] Pakistani Aafia Siddiqui [JURIST news archive] on charges that she tried to kill US personnel on a base in Afghanistan where she was being held. Last year, a federal court sentenced five men [JURIST report] to life in prison for their roles on an attempted attack on Fort Dix [official website] in New Jersey. Also lyear, Iraqi insurgent Wesam al Delama, the first insurgent tried in US federal court, was sentenced to 25 years in prison [JURIST report] for planning attacks on US troops in Iraq.




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Bahrain coup plot trial begins for Shiite opposition leaders
Drew Singer on October 28, 2010 11:42 AM ET

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[JURIST] The trial of 25 Shia Muslim opposition activists began in Bahrain on Thursday with the activists pleading not guilty to charges of plotting to overthrow the government and supporting terror cells. The activists said that they were working for an unnamed foreign government [JURIST report]. The suspects, who have been under arrest since August, are charged with undermining national security [NYT report] and planning violence, intimidation and subversion through an international terrorist network. At least 10 prominent Shiite opposition figures were formally charged by prosecution officials, including Abduljalil al-Singace, Mohamed Habeeb al-Saffaf and Abdulhadi al-Mokhaidar, part of the leadership of the the Haq Movement, a Shiite-dominated opposition group. Rights groups have criticized the charges as signs of repression.

The Bahraini government has faced repeated criticism over its human rights record in recent years. In February, Human Rights Watch claimed the government had reverted to using torture [JURIST report] to gain confessions from detainees after a decade of reform banning such practices. The US State Department deplored impunity for human rights violations and crimes in Bahrain in its 2008 Country Reports on Human Rights Practices [JURIST report]. The Cairo Institute for Human Rights Studies [advocacy website] has voiced similar concerns.




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UN SG: Cambodia genocide court to decide on future of Khmer Rouge trials
Andrea Bottorff on October 28, 2010 11:01 AM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official website] said Thursday that the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] will decide whether to prosecute additional Khmer Rouge [BBC backgrounder; JURIST news archive] officers. Ban spoke to reporters after visiting a genocide museum in Phnom Penh, ending a three-day trip [Phnom Penh Post report] to Cambodia, and said that the ECCC would decide if there will be more prosecutions as part of an "international judicial process." While speaking in front of the ECCC Wednesday, Ban called for those responsible to be held accountable [text] for the tragic events that allegedly caused the death of more than two million civilians between 1975 and 1979. Ban also praised [UN News Centre report] the ECCC's work in pursuing justice, even 30 years after the fall of the regime, and asked for the government's "full cooperation" with the tribunal and "complete respect for its judicial independence." Ban's support followed Wednesday's comments by Cambodian Prime Minister Hun Sen [BBC profile], in which Hun Sen said that the Cambodian government will not allow the UN tribunal to continue prosecuting [JURIST report] former Khmer Rouge officials because the cases disturb the country's ongoing peace process. Hun Sen was formerly a Khmer Rouge officer along with many of his closest allies.

Last month, the ECCC indicted [JURIST report] four former Khmer Rouge leaders. The indicted leaders, Ieng Sary [JURIST news archive], Ieng Thirith [case materials], Khieu Samphan [JURIST news archive] and Nuon Chea [JURIST report], have been detained since 2007 and are charged with crimes against humanity, genocide, grave breaches of the Geneva Conventions and offenses under the Cambodian Criminal Code 1956. In April, the ECCC dismissed appeals [JURIST report] by Ieng Thirith, Ieng Sary and Khieu Samp to block the extension of their provisional detention. The ECCC handed down its first conviction [JURIST report] of a former Khmer Rouge official in July. Kaing Guek Eav [case materials; JURIST news archive], also known as "Duch," was found guilty of crimes against humanity and of violating the 1949 Geneva Conventions. In August, lawyers for Duch filed a notice of appeal [JURIST report] of his conviction. Last month, the prosecution filed its own notice of appeal [JURIST report] seeking to increase Kaing's term of imprisonment. The prosecution identified three grounds for appeal, including a discernible error in the exercise of sentencing discretion, an error of law regarding cumulative convictions and an error of law regarding enslavement.




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UN children's rights expert urges US not to imprison Khadr
Jay Carmella on October 28, 2010 9:18 AM ET

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[JURIST] The UN Special Representative of the Secretary-General for Children and Armed Conflict [official website] urged the US on Wednesday not to imprison [letter, PDF] Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials; JURIST news archive]. Radhika Coomaraswamy [official profile], through a letter sent to the US military commission at Guantanamo Bay, requested that the US treat Khadr as a child solider. Coomaraswamy stated that Khadr meets the classic qualifications for being considered a child solider and that returning him to Canada for rehabilitation would be a better outcome than a US prison. The letter also emphasized the fact that the US has been a leading country in the battling the problems associated with child soldiers. She wrote:
I would therefore urge the military commission members to consider international practice - practice supported by the US Government - that Omar Khadr not be subject to further incarceration but that arrangements be made for him to enter a controlled rehabilitation program in Canada. The terms of such a program can be worked out in consultation with child protection partners, psychologists and specialists in juvenile reintegration that can be agreed by the prosecution and the defense.
Coomaraswamy added that, because Khadr's father was responsible for abuse and his recruitment, it only increases the harm [CBC report] done to him.

Khadr was originally detained for killing a US soldier in Afghanistan with a hand grenade in 2002 when he was 15. Earlier this week, Khadr pleaded guilty [JURIST report] to all five charges against him, including conspiracy, murder and aiding the enemy. In addition, Khadr signed a stipulation of fact [text, PDF] confirming that he was a member of al Qaeda, that he threw the grenade and that he felt "happy" when he learned an American soldier had been killed. Khadr sentencing trial began this week, and he could serve up to eight more years in prison with at least one of those years occurring at Guantanamo Bay. The agreement also included a condition that the US support Khadr's eventual application for transfer to Canada. Khadr becomes the first juvenile convicted by a war crimes tribunal since WWII. The guilty plea marks a reversal from Khadr's original stance that he would not accept a plea deal [JURIST report].




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FTC ends Google privacy inquiry
Erin Bock on October 28, 2010 8:33 AM ET

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[JURIST] The US Federal Trade Commission (FTC) [official website] on Wednesday announced that it has ended an inquiry into internal policies and procedures at Google [corporate website; JURIST news archive] that led to the company inadvertently collecting data on unsecured wireless networks while photographing streetscapes for its Street View maps program. In a letter [text, PDF] sent to Google's counsel, FTC Director of the Bureau of Consumer Protection David Vladeck admonished the company for not knowing about the data collection until responding to a request for information and stated that there was a breakdown in the company's internal review process. Vladeck went on to state that, in light of Google's recent announcement [text] that it was addressing these concerns by appointing new staff and incorporating a formal privacy review process on developing technology and the fact that Google assured the FTC it did not use the data it had accidentally collected, the FTC was ending its inquiry into the matter.

Google's announcement had the opposite effect in the UK, where a statement that the company had collected entire e-mails, URLs and passwords caused the UK Information Commissioner's Office (ICO) [official website] to re-open its investigation [JURIST report]. The company could potentially face a fine of up to 500,000 pounds (USD $793,950). Other countries, including Canada, Australia and Spain [JURIST reports] have also launched their own investigations into the privacy breach. Earlier this month, Canadian Privacy Commissioner Jennifer Stoddart announced that Google was in violation [JURIST report] of the country's Personal Information Protection and Electronic Documents Act [text, PDF] (PIPEDA). In July, the Australian Privacy Commissioner announced [JURIST report] that its investigation revealed Google's actions violated the Australia Privacy Act [government backgrounder]. In response to these findings, Google issued an apology on its official Australian blog [text], and agreed to conduct a privacy impact assessment on any new Street View data collection activities in Australia and regularly consult with the privacy commissioner about personal data collection activities arising from significant product launches. In August, the South Korean National Police Agency (SKNPA) [official website, in Korean] raided the Google South Korean headquarters [JURIST report] in connection with accusations that the company had been illegally acquiring user data.




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Federal judge refuses to throw out Blagojevich conviction
Erin Bock on October 28, 2010 7:06 AM ET

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[JURIST] A judge for the US District Court for the Northern District of Illinois [official website] on Wednesday refused to overturn [order, PDF] a false statements conviction assessed against former Illinois governor Rod Blagojevich [BBC profile; JURIST news archive]. Blagojevich argued that his sole conviction of making false statements to the FBI should be thrown out [JURIST report] due to claims of trial errors and prosecutorial misconduct A jury found Blagojevich guilty [JURIST report] of making false statements to the FBI, but remained deadlocked on 23 additional charges. Blagojevich argued that his conviction was not "legally sound" [AP report] because prosecutors asked leading questions during cross examination and the jury was not given proper instructions. Judge James Zagel rejected these arguments as weak in a two-page opinion, stating that it was an attempt on Blagojevich's part to attack the prosecutor when the facts and law are not on his side. Blagojevich is scheduled for retrial in April on the 23 counts that failed to receive a unanimous jury verdict.

In June, a federal judge denied a request [JURIST report] to delay the Blagojevich trial in order for his defense lawyers to review a decision by the US Supreme Court [official website] limiting the scope of the federal honest services fraud statute [18 USC § 1346 text]. Zagel held that the trial delay was unnecessary because the Supreme Court's decision in Skilling v. United States [Cornell LII backgrounder; JURIST report] was unlikely to affect Blagojevich's case. In April, the prosecution was ordered [JURIST report] to release a 91-page government proffer outlining evidence in its case against Blagojevich. In March, Blagojevich pleaded not guilty [JURIST report] to eight amended corruption charges. In January 2009, the Illinois State Senate voted unanimously [JURIST report] to convict Blagojevich of abuse of power and remove him from office. Blagojevich and his former chief of staff were arrested [JURIST report] in December 2008. Blagojevich's list of charges include attempting to sell the Senate seat vacated by US President Barack Obama [official web site], making appointments based on anticipated campaign contributions and taking kickbacks from a number of companies.




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South Korea rights commission finds military gay ban unconstitutional
Ann Riley on October 27, 2010 5:59 PM ET

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[JURIST] The South Korean National Human Rights Commission (NHRCK) [official website, in Korean] has determined that the provision of the military penal code banning same-sex relationships is unconstitutional, according to a report released Wednesday. Under Article 92 of the South Korean Military Criminal Code, same-sex relationships among soldiers are punishable for up to one year in prison and forced retirement. In May, a gay advocacy group filed a petition with NHRCK over the constitutionality of Article 92. Following the petition, the NHRCK met this week to prepare a position for the Constitutional Court of Korea [official website, in Korean], arguing that the law violates the privacy of service members [Korea Times report] and infringes upon their rights to equality and freedom of sexual preference. Conversely, the Ministry of Defense [official website, in Korean] asserts that allowing same-sex relationships would deplete overall military discipline [KBS report] and incite conflict. The Constitutional Court is currently reviewing the law. According to the NHRCK, between 2004 and 2007, Article 92 was applied to 176 cases, and three soldiers were tried and convicted under the law.

South Korea's military policy is similar to the US's controversial "Don't Ask, Don't Tell" (DADT) [10 USC § 654; JURIST news archive] policy. Last week, US Defense Secretary Robert Gates [official profile] issued a memorandum limiting the authority to discharge openly gay service members [JURIST report] to five senior Defense Department officials. The memo is seen as a response to the uncertain future of the DADT policy, arising from the recent injunction [JURIST report] by the US District Court for the Central District of California [official website] and the subsequent temporary stay [JURIST report] issued last week by the US Court of Appeals for the Ninth Circuit [official website]. Since the enactment of DADT in 1993, approximately 13,000 US servicemen and women have been discharged from the armed forces as a result of the policy.




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Poland prosecutors grant terror suspect victim status
Ann Riley on October 27, 2010 4:39 PM ET

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[JURIST] Polish prosecutors investigating the secret CIA prison [JURIST news archive] in Poland on Wednesday gave Saudi terror suspect Abd al-Rahim al-Nashiri [NYT profile, JURIST news archive] victim status, recognizing the validity of his claims that he was mistreated by interrogators. According to ex-CIA officials, al-Nashiri, accused of bombing the USS Cole [JURIST news archive], was tortured by the agency at the secret prison in Poland. Elevating al-Nashiri to victim status will grant the detainee more rights and allow his lawyers to participate in the proceedings. Deputy Legal Director of the American Civil Liberties Union (ACLU) [advocacy website] Jameel Jaffer called for the US to hold top officials accountable for torture [press release], saying:
Holding torturers accountable is essential to restoring American credibility at home and abroad - the U.S. can no longer remain silent as, one by one, other nations begin to reckon with their own agents' complicity in the torture program through prosecutions and judicial inquiries.
Al-Nashiri remains a detainee at Guantanamo Bay [JURIST news archive], despite an announcement last month by the Obama administration that charges against him are not pending [JURIST report] or being considered. The Pentagon formally dropped charges [JURIST report] against al-Nashiri in February 2009, effectively ending his prosecution under the Military Commissions Act of 2006 [text, PDF].

Last month, Polish prosecutors opened an investigation into the alleged mistreatment of al-Nashiri in response to the request [JURIST reports] filed by human rights group Open Society Justice Initiative (OSJI) [advocacy website] and al-Nashiri's lawyers. OSJI stated that the filing represents the first attempt by an extraordinary rendition [JURIST news archive] victim to pursue a legal remedy within the Polish court system. The commencement of the investigation came one week after former Polish prime minister Leszek Miller denied any knowledge [JURIST report] of a secret CIA prison in Poland and indicated that he would not discuss allegations of torture until the Polish government's investigation is complete. Allegations against Poland came in a June 2007 report [text; JURIST report] to the Council of Europe [official website] by Swiss Senator Dick Marty. The report concluded that numerous European governments had cooperated with the CIA program. In February 2007, the European Parliament condemned more than a dozen European states [JURIST report] for their roles in the program. Several nations have been accused of obstructing European probes into the secret prison allegations, including Poland [JURIST report], which allegedly housed the largest CIA detention facility in Europe [JURIST report].




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Cambodia PM rejects further prosecution of Khmer Rouge officials by UN tribunal
Sarah Miley on October 27, 2010 12:48 PM ET

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[JURIST] Cambodian Prime Minister Hun Sen [BBC profile] informed UN Secretary-General Ban Ki-moon [official website] in a meeting Wednesday that the government will not allow the prosecution of low-ranking Khmer Rouge [BBC backgrounder; JURIST news archive] officers by the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website]. Hun Sen claims that further prosecution of former Khmer Rouge officials would disturb the ongoing peace process in Cambodia and says the country should move on from the tragic events that allegedly caused the death of more than two million civilians between 1975 and 1979. Critics accuse Hun Sen of trying to limit the scope [AP report] of the tribunal to prevent his political associates from being indicted. Hun Sen was formerly a Khmer Rouge officer along with many of his closest allies. Ban, who was visiting Cambodia as part of his four-country Asian tour, also took time to meet with officials of the ECCC. Ban praised [press release, PDF] the work of the tribunal, calling it "crucial in the world's fight against impunity."

Last month, the ECCC indicted [JURIST report] four former Khmer Rouge leaders. The indicted leaders, Ieng Sary [JURIST news archive], Ieng Thirith [case materials], Khieu Samphan [JURIST news archive] and Nuon Chea [JURIST report], have been detained since 2007 and are charged with crimes against humanity, genocide, grave breaches of the Geneva Conventions and offenses under the Cambodian Criminal Code 1956. In April, the ECCC dismissed appeals [JURIST report] by Ieng Thirith, Ieng Sary and Khieu Samp to block the extension of their provisional detention. The ECCC handed down its first conviction [JURIST report] of a former Khmer Rouge official in July. Kaing Guek Eav [case materials; JURIST news archive], also known as "Duch," was found guilty of crimes against humanity and of violating the 1949 Geneva Conventions. In August, lawyers for Duch filed a notice of appeal [JURIST report] of his conviction. Last month, the prosecution filed its own notice of appeal [JURIST report] seeking to increase Kaing's term of imprisonment. The prosecution identified three grounds for appeal, including a discernible error in the exercise of sentencing discretion, an error of law regarding cumulative convictions and an error of law regarding enslavement.




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Ninth Circuit strikes down Arizona voter registration law
LaToya Sawyer on October 27, 2010 12:43 PM ET

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[JURIST] A three-judge panel for the US Court of Appeals for the Ninth Circuit [official website] on Tuesday struck down [opinion, PDF] a portion of an Arizona law requiring proof of citizenship for voter registration. The court held that the law, Proposition 200 [text, PDF], was inconsistent with the National Voter Registration Act of 1993 (NVRA) [materials], which was passed with the intent of increasing voter registration and removing barriers to registration imposed by the states. The NVRA requires voters to attest to the validity of the information on their registration form, including their citizenship, but does not require them to provide additional proof of citizenship. Proposition 200 went beyond the federal statute, requiring applicants to show proof of citizenship before registering to vote. In order to reach their conclusion, the court analyzed the authority given to the federal government under the Article I Elections Clause [text]. The court held that:
The authority granted to Congress under the Elections Clause to "make or alter" state law regulating procedures for federal elections is [an enumerated] power. The Framers of the Constitution were clear that the states' authority to regulate extends only so far as Congress declines to intervene. Given the paramount authority delegated to Congress by the Elections Clause, we conclude that the NVRA, which implemented a comprehensive national system for registering federal voters, supersedes Arizona's conflicting voter registration requirement for federal elections.
In addition to striking down the registration requirement, the court upheld a provision of the law requiring voters to show proof of identification before casting a ballot. Arizona Attorney General Terry Goddard [official website] has indicated that he will ask the full panel of the court to reconsider the ruling [WP report]. The Arizona deadline for voter registration for the 2010 elections has passed, so the court's ruling is not expected to have an impact on next week's elections.

The court's ruling upholding the voter identification provision of the law is consistent with previous court rulings on the issue. In April 2008, the US Supreme Court [official website; JURIST news archive] upheld an Indiana voter identification statute [JURIST report] requiring voters to present photo identification as a prerequisite to voting. The court concluded that, despite arguments that the legislation makes it difficult for minorities, the elderly and the impoverished to participate in elections, the law does not put an undue burden on the right to vote and therefore does not violate the US Constitution. In August 2007, a district court ruled [JURIST report] that the provision in Proposition 200 requiring voters to provide photo identification before voting was valid. The ruling followed an October 2006 Supreme Court decision allowing Arizona to enforce the identification law [JURIST report] during the 2006 mid-term elections. Currently, more than 20 states [NCSL website] require some form of voter identification at the polls.




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GlaxoSmithKline settles false-claim lawsuit for $750 million
Ashley Hileman on October 27, 2010 12:42 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] announced Tuesday that British pharmaceutical giant GlaxoSmithKline (GSK) [corporate website, JURIST news archive] and its subsidiary SB Pharmco Puerto Rico Inc., have agreed to plead guilty to civil and criminal charges [press release] relating to the manufacture and distribution of adulterated drugs and will pay a total of $750 million as part of the settlement. The charges stem from a false-claim lawsuit filed in 2004 in the US District Court for the District of Massachusetts [official website] by Cheryl Eckard, the company's former quality assurance manager, after her visit to its now-closed manufacturing facility in Cidra, Puerto Rico. In her complaint [text, PDF], Eckard alleged that the false claims made by GSK "arose out of chronic, serious deficiencies in the quality assurance function at the Cidra plant and the defendant's ongoing serious violations of the laws and regulations designed to ensure the fitness of drug products for use." As a result of pleading guilty to the civil charges, GSK will pay $600 million to the states and the federal government. Additionally, the company will pay a criminal fine in the amount of $150 million. In a press release [text] PD Villarreal, GSK's Senior Vice President and Head of Global Litigation, stated:
This settlement resolves a significant and long-standing legal issue facing the company. We regret that we operated the Cidra facility in a manner that was inconsistent with current Good Manufacturing Practice requirements and with GSK's commitment to manufacturing quality. GSK worked hard to resolve fully the manufacturing issues at the Cidra facility prior to its closure in 2009 and we are committed to continuous improvement in our manufacturing processes.
This settlement is the fourth largest health care fraud settlement in US history.

According to the Taxpayers Against Fraud Education Fund [advocacy website], a nonprofit public interest group, health care cases accounted for approximately 80 percent of the $3.1 billion recovered by the DOJ under the False Claims Act [text] last year. In September 2009, pharmaceutical company Pfizer [corporate website] and a subsidiary settled [JURIST report] a health care fraud suit [fact sheet] for a record $2.3 billion. As a part of that settlement, Pfizer agreed to pay $1 billion to resolve civil claims brought under the Federal Claims Act, which alleged that they illegally promoted the drugs Bextra, Geodon, Zyvox and Lyrica, caused false claims to be submitted to health care programs, and paid kickbacks to health care providers. Following the settlement, the company entered into an agreement with the US Department of Health and Human Services [official website] that set new policies and required them to continue the maintenance of a compliance program for five years.




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UN rights chief calls for investigation into Iraq abuses
Andrea Bottorff on October 27, 2010 12:29 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] urged the US and Iraq to investigate and prosecute those responsible [statement] for alleged human rights abuses in Iraq after thousands of previously classified documents detailing torture [JURIST news archive] by US and Iraqi forces were posted on WikiLeaks [website]. Pillay said that the leaked documents suggest US forces killed more civilians than previously reported and that the US government continued to move prisoners into Iraqi custody even after learning about detainee abuse committed by Iraqi forces. The proposed investigation would promote compliance with international treaties:
The US and Iraqi authorities should take necessary measures to investigate all allegations made in these reports and to bring to justice those responsible for unlawful killings, summary executions, torture and other serious human rights abuses, in line with obligations under international human rights law.
For example, the proposed investigation would respect the International Covenant on Civil and Political Rights (ICCPR) [text], which the US and Iraq have signed. Pillay also called on Iraq to sign the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and its Optional Protocol [text], which would allow UN officials to examine treatment of prisoners in the country.

Human Rights Watch (HRW) [advocacy website] called Saturday for the Iraqi and US governments to launch an investigation [JURIST report] and prosecute those responsible for alleged detainee abuse [JURIST news archive]. The group said the WikiLeaks reports detail the US military's failure to prevent abuses, including beatings, burnings and lashings, of Iraqi detainees at the hands of their captors. HRW's request for an investigation comes almost six months after the group reported on the repeated torture [JURIST report] of Iraqi detainees in a secret prison in Baghdad. Last week, UN Special Rapporteur on torture Manfred Nowak [official website] also responded to the leaked documents, calling for the Obama administration to launch an inquiry [JURIST report] into the role of the US forces in the alleged human rights violations. He stated that the US is party to UN human rights treaties that compel the investigation of such allegations and the criminalization of any form of torture.




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Federal judge shuts down file-sharing site LimeWire
Andrea Bottorff on October 27, 2010 10:12 AM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] issued a permanent injunction [text, PDF] Tuesday that will prevent music file-sharing website LimeWire [website] from providing online users with the software necessary to share copyrighted files. The injunction shut down the website, which plaintiff Recording Industry Association of America (RIAA) [trade website] claimed has allowed for "millions upon millions of users" to illegally access and distribute copyrighted songs. The district court ruled that RIAA has suffered and continues to suffer irreparable harm to its business and that even a permanent injunction will not give RIAA adequate remedy for its potential future injury as a result of continued peer-to-peer (P2P) file sharing. The court also decided that LimeWire intentionally encouraged copyright infringement, particularly in light of its knowledge of other recent cases involving illegal file-sharing websites, like Grokster and Aimster [EFF materials]. LimeWire could face a minimum of $150,000 in statutory damages per each copyright violation, placing its total damages over $1 billion [PCWorld report]. The court will rule on damages in January.

The US music industry has been actively litigating alleged copyright infringement in P2P online file sharing. In January, a federal judge reduced [JURIST report] a $1.92 million jury verdict against a Minnesota woman who was found to have violated music copyrights to about $54,000. Chief Judge Michael Davis of the US District Court for the District Court of Minnesota [official website] called the damages amount "monstrous and shocking" and said the facts of the case could not justify the jury verdict. Davis emphasized that the defendant was an individual consumer who downloaded music for her own use and not for profit and also said that the damages to the plaintiffs, members of the RIAA, did not support the verdict. The judge ultimately decided the award should be triple the statutory minimum of $750 per song, because the defendant willfully shared 24 songs on the file-sharing program KaZaA [website] and because of the need for deterrence. Last year, the RIAA said that it would discontinue its controversial policy [JURIST report] of suing suspected file-sharers and instead will seek cooperation with major Internet service providers to cut off access to repeat offenders.




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Rights groups condemn police brutality in Guinea election violence
John Paul Putney on October 26, 2010 2:22 PM ET

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[JURIST] Amnesty International (AI) [advocacy website; press release] and Human Rights Watch (HRW) [advocacy website; press release] on Tuesday condemned violence by Guinea's security forces in response to recent opposition demonstrations. Rising tensions amid allegations of fraud and repeated delays leading up to the run-off presidential election erupted in violence last week. Police allegedly fired indiscriminately at unarmed civilians, beat protesters and ransacked homes. AI's Guinea researcher Gaetan Mootoo lamented, "[t]his ruthless and reckless reaction to the protests is the latest example of violence by Guinea's security forces, whose brutality habitually goes unpunished." Separately, HRW called for an investigation into an alleged attack on noted human rights advocate, Dr. Mamadou Aliou Barry, who suffered a broken arm and numerous contusions. Barry, president of the National Observatory for Democracy and Human Rights, was allegedly apprehended and beaten by security forces after attempting to intervene on behalf of young men who were being attacked by gendarmes. HRW senior West Africa researcher Corrinne Dufka called on Guinean security forces to make good on their recent promises to instill more discipline in their ranks. Both candidates have called for calm from their supporters [BBC report]. A new date for the election has yet to be announced.

On Friday, the UN Office of High Commissioner for Human Rights (OHCHR) [official website] expressed concern that security forces in Guinea "committed serious human rights violations" [JURIST report] in subduing demonstrations. This is the third time the runoff election has been postponed. The first election, scheduled for July 18, was canceled due to allegations of misconduct during balloting [BBC report]. The second election, scheduled for September 19, was canceled amid violence [BBC report] sparked by the election fraud conviction [JURIST report] of two senior election officials. The votes have divided primarily along ethnic lines, with all candidates running on a similar platform of economic expansion and the rule of law. The presidential election is seen as the first free election in Guinea since attaining independence in 1958. In May, the International Criminal Court [official website] sent a delegation from the Office of the Prosecutor [official website] to Guinea to further investigate the killing [JURIST report] of more than 150 pro-democracy protesters in Conakry [BBC backgrounder] in September 2009. The protesters had rallied against Guinean military leader Moussa Dadis Camara [BBC profile], who announced in October that he intended to push elections forward three months and stand for election, breaking a promise not to run made shortly after he took power. An assassination attempt on Camara two months later eventually drove him into exile.




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ICC urges Kenya to arrest al-Bashir
Sarah Posner on October 26, 2010 2:07 PM ET

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[JURIST] The International Criminal Court (ICC) [official website] requested [text, PDF] Monday that Kenya arrest Sudanese President Omar al-Bashir [case materials; JURIST news archive] when he visits the country later this week. Al-Bashir faces seven counts of war crimes and crimes against humanity as well as three charges of genocide [JURIST reports] in relation to the Darfur conflict [BBC backgrounder]. The ICC's Pre-Trial Chamber I has requested:
the Republic of Kenya to inform the Chamber, no later than 29 October 2010, about any problem which would impede or prevent the arrest and surrender of Omar Al Bashir in case he visits the Republic of Kenya on 30 October 2010; and the Republic of Kenya to take any necessary measure to ensure that Omar Al Bashir, in the event that he visits the country, be arrested and surrendered to the Court in accordance with its obligations under the Statute.
The chamber's decision comes after notification that al-Bashir might be in Kenya later this week for an Intergovernmental Authority for Development (IGAD) [official website] summit [press release]. The ICC's instruction to Kenya is for al-Bashir to be arrested and surrendered to the court in fulfillment of its obligations under the Rome Statute [text, PDF].

Al-Bashir last visited Kenya in August for the signing of the country's new constitution [JURIST report]. Following his visit, the ICC reported Kenya [decision, PDF; JURIST report] to the UN Security Council and the Assembly of States Parties to the Rome Statute for the violation in not arresting al-Bashir. Also following his August visit, former UN secretary-general Kofi Annan urged Kenya to reaffirm its cooperation with the ICC by arresting al-Bashir [JURIST report]. In July, the ICC called for al-Bashir's arrest [JURIST report] during his visit to Chad, marking the first visit to an ICC member state since the warrants were issued. The ICC also reported Chad [decision, PDF] to the Security Council and Assembly of States Parties. The warrants against al-Bashir have been controversial, with Egypt, Sudan, the African Union and others calling for the proceedings to be delayed, and African Union leaders agreeing not to cooperate [JURIST reports] with the warrant.




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HRW urges Azerbaijan to end arrests, attacks on journalists
Sarah Paulsworth on October 26, 2010 2:06 PM ET

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[JURIST] The Republic of Azerbaijan must free its imprisoned journalists and repeal its criminal defamation laws [press release], Human Rights Watch (HRW) [advocacy website] said in a report [text] released Tuesday. In its 94-page report, entitled "Beaten, Blacklisted, and Behind Bars: The Vanishing Space for Freedom of Expression in Azerbaijan," HRW cited numerous instances of violence against journalists and said that many of these acts are perpetrated by police seeking to prevent journalists from investigating issues of public interest. The report highlights the continuing imprisonment of Azerbaijani journalist Eynulla Fatullayev, as well as bloggers Emin Milli and Adnan Hajizade. The European Court of Human Rights [official website] ordered Azerbaijan to effectuate Fatullayev's immediate release [decision; JURIST report] in April, but he remains detained on separate drug charges [CPJ report] that many human rights groups believe are spurious. Milli and Hajizade were arrested after they were attacked at a cafe [RFE/RL report, in Azeri]. They were convicted on hooliganism charges, even though they allege they are in fact the victims in the premeditated attack intended to incriminate them only weeks after they disseminated a satircal video [link] on YouTube about overpriced donkeys in Azerbaijan's state budget [NYT report]. HRW expressed concern that the continuing deterioration in the area of freedom of expression could impact the upcoming elections in Azerbaijan:
The vanishing space for freedom of expression is particularly alarming given the upcoming November 7, 2010 parliamentary elections in Azerbaijan, as vibrant public discourse is crucial for a free and fair vote. Azerbaijan has a history of curtailing free speech in the run up to elections, which have overall failed to meet international standards.
In addition to concern over repression against journalists, HRW's report also notes that, since January 2009, foreign radio stations including Voice of America (VOA), BBC and Radio Free Europe/Radio Liberty (RFE/RL) [media websites] have been barred from broadcasting on FM radio [RFE/RL report].

According to HRW, over the last several years, at least nine journalists have fled Azerbaijan due to pressure and concerns about their safety. President of Azerbaijan Ilham Aliyev is recognized by Reporters Without Borders (RSF) [advocacy website] as a Predator of Press Freedom [RSF report]. In 2007, Azerbaijan convicted two journalists of defaming Islam [JURIST report]. Well-known Azerbaijani journalist Elmar Huseynov was murdered in 2005, and his murder remains unsolved [CPJ report]. Azerbaijan also has a record of conducting elections that do not comport with international standards, and the European Rights Court recently issued decisions indicating that Azerbaijan violated the rights of parliamentary candidates Namat Aliyev [decision; JURIST report] and Flora Kerimova [decision] during the 2005 elections.




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Spain police on trial for alleged torture of ETA members
Julia Zebley on October 26, 2010 2:04 PM ET

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[JURIST] A group of Spanish police officers went on trial Tuesday for the alleged torture of two ETA activists [BBC backgrounder; JURIST news archive] in Basque. The alleged victims, Igor Portu and Mattin Sarasola, were convicted and sentenced to 1,040 years in prison [JURIST report] after an airport bombing in Madrid that killed two people. They claim that the police mistreated them physically and psychologically [El Pais report, in Spanish]. The Guardia Civil police [official website, in Spanish] maintain that Portu and Sarasola were trying to escape and that their limited use of force was necessary [El Pais report, in Spanish]. Prosecutors seek two to three years in prison for the accused officers.

Spain and France continue to combat active Basque separatists, who fight for full nationhood for the Basque region of Spain and France. The area is considered an autonomous region of both nations. France has arrested and filed terrorism charges against two separate Basque separatists leaders in 2010, while Spain has dealt with ETA plots to kill their prime minister and has accused Venezuala [JURIST reports] of intervening on behalf of the ETA. The European Court of Human Rights has upheld Spain's ban of separatist parties [JURIST report].




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California Supreme Court upholds dismissal of criminal cases over judge shortage
Maureen Cosgrove on October 26, 2010 1:28 PM ET

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[JURIST] The California Supreme Court [official website] on Monday upheld [opinion, PDF] the dismissal of 18 criminal cases in Riverside County because there were not enough judges available to hear the cases. The Superior Court of Riverside County, a California state trial court, has been heavily burdened [RCBRTF report, PDF] with criminal cases in recent years, with nearly 25 percent of jail inmates awaiting trial for over a year, and as many as 32 inmates awaiting trial for more than four years. During the criminal proceedings at issue, the lower court diverted many of its resources, including judges and courtrooms, to the criminal case docket at the expense of pending civil trials, but the reallocation of resources failed to reduce the criminal caseload. After the defendants were told that no courts or judges were available for each of their scheduled trial dates, the defendants moved to dismiss pursuant to Section 1382 of the California Penal Code [text], California's speedy trial statute. The statute requires that felony cases be brought to trial within 60 days of arraignment. Chief Justice Ronald George addressed the lower court's reasoning:
Here, the trial court reasonably could find that the lack of a number of judges sufficient to timely try the present case (and the 17 other criminal cases that were dismissed at the same time in the Riverside Superior Court) was fairly attributable to the state's failure, over a considerable period of time, to provide a number of judges sufficient to meet the needs of Riverside County's rapidly growing population and caseload - a circumstance fairly attributable to the fault or neglect of the state.
The court also concluded that "good cause" to continue the trials, 16 misdemeanor cases and two felony cases, at a later date did not exist under the state's penal code.

California has employed a number of money-saving tactics to reduce the state's $20.7 billion budget deficit [California LAO report]. In September 2009, California courts implemented monthly closures [JURIST report] to ease the budget crisis. California Code 68070 [text] authorizes closure of the courts, "for the transaction of judicial business for one day per month and may adopt rules of court to implement this section." California court employees rallied [Marketplace report] in protest of the closures, arguing that court closures harm the public. George has also voiced similar concerns [SDNN report] about the court closures.




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Somalia again ranked most corrupt country in annual survey
Eryn Correa on October 26, 2010 11:47 AM ET

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[JURIST] Somalia was once again ranked the most corrupt country by Transparency International (TI) [advocacy website] in its 2010 Corruption Perception Index (CPI) [text, PDF; press release] released Tuesday. The CPI measures the abuse of entrusted power for private gain in both the public and private spheres. Countries are ranked from 10 (very clean) to 0 (highly corrupt) based on survey information collected by independent agencies concerning bribery of public officials, kickbacks in public procurement, embezzlement of public funds and the effectiveness of any anti-corruption campaign at work in country. Somalia ranked at the bottom of the list of 178 countries surveyed for the third year in a row with a score of 1.1, based on the recommendations of country-specialists and business leaders who reviewed Somalia's data. Afghanistan, Myanmar and Iraq joined Somalia at the bottom of the list. TI chair, Huguette Labelle, expressed her concern that countries that have faced the most instability and conflict continue to dominate the bottom rung of the index. Labelle said:
These results signal that significantly greater efforts must go into strengthening governance across the globe. With the livelihoods of so many at stake, governments' commitments to anti-corruption, transparency and accountability must speak through their actions. Good governance is an essential part of the solution to the global policy challenges governments face today.
The countries with the highest scores are Denmark, New Zealand and Singapore with a tie of 9.3. The US received a score of 7.1, falling out of the top 20.

Despite the call for greater efforts, there have been improvements since the 2009 CPI report, [JURIST report] including in the countries of Bhutan, Chile, Ecuador, FYR Macedonia, Gambia, Haiti, Jamaica, Kuwait and Qatar. Most notably, Haiti has made a statistically significant jump from 1.8 to 2.2, continuing a steady climb since 2008. However, Czech Republic, Greece, Hungary, Italy, Madagascar and Niger have made drops that, according to Labelle, are potentially attributable to the financial crisis that has prevented countries from strictly enforcing their anti-corruption measures. The 2008 CPI [text, PDF] also found Somalia, Myanmar, Iraq and Afghanistan at the bottom of the list. The 2007 and 2006 CPIs [JURIST reports] had similar findings.




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UK Supreme Court rules Scotland suspects have right to counsel during interrogations
Carrie Schimizzi on October 26, 2010 10:07 AM ET

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[JURIST] The UK Supreme Court [official website] ruled [judgment, PDF] Tuesday that Scottish police can no longer question a suspect in custody without the presence of a lawyer. The court found that the previous law, which permitted interrogation of suspects without a lawyer for up to six hours, violated the Article 6 right to a fair trial of the European Convention on Human Rights [text, PDF]. The court's ruling will potentially affect thousands of criminal cases pending in the UK court system and opens the door for similar convictions to be reviewed or appealed. The court ruled that criminal cases that have already been decided and not appealed must not be reviewed, but added that the Scottish Criminal Cases Review Commission (SCCRC) [official website] will have the discretion to review and refer cases to the high court if public interest demands it. The court indicated the ruling would affect pending criminal cases:
Figures were provided to the court which indicate there are about 76,000 such cases - or are being held in the system pending the hearing of an appeal although not all of them may be affected by the decision in this case. There is no doubt that a ruling that the assumption was erroneous will have profound consequences. But there is no room, in the situation which confronts this court, for a decision that favours the status quo simply on grounds of expediency.
The court's decision has prompted the Scottish government to introduce emergency legislation [press release] to bring the country's rules into line with European human rights laws. Scottish Justice Secretary Kenny MacAskill [official profile] has assured that these changes to the Scottish justice system have been "anticipated and planned for" [BBC report].

The issue of a right to a lawyer during custodial interrogations has been addressed in two other recent high court decisions in both France and Canada. Last week, the French Court of Cassation [official website, in French] ruled [judgment text, in French; press release, in French] that all persons in custody of French law enforcement, including terrorism suspects, are entitled to consult with lawyers [JURIST report] from the outset of criminal proceedings. The decision expanded on a July 30 decision [text, in French] issued by France's Constitutional Court [official website, in French], according to which all persons in custody are entitled to a lawyer from the outset except for people suspected of engaging in terrorism, drug trafficking or organized crime. Also this month, the Supreme Court of Canada [official website] ruled [judgment text] that Canadians do not have the right to have counsel [JURIST report] present during custodial interrogations. The court held that § 10(b) of the Charter of Rights and Freedoms [text], which states that those under arrest have the right "to retain and instruct counsel without delay and to be informed of that right," is typically satisfied once the suspect is advised of the right and, if invoked, permitted "reasonable opportunity to consult counsel." The court went on to say, however, that the charter does not extend so far as to necessitate counsel's presence for the duration of the interview.




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Iraq court sentences Saddam-era deputy PM Aziz to death
Carrie Schimizzi on October 26, 2010 9:07 AM ET

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[JURIST] Former Iraqi foreign minister and deputy prime minister under Saddam Hussein [JURIST news archive], Tariq Aziz [BBC profile; JURIST news archive], was sentenced to death Tuesday by the Iraqi High Criminal Court [ICRC backgrounder, PDF; JURIST news archive]. The court sentenced Aziz to death by hanging [Al Jazeera report] on charges related to the former regime's effort to eliminate Shiite Muslim resistance efforts after the First Gulf War. Aziz and two other former Saddam Baath Party [BBC backgrounder] top aides, Saadoun Shaker, a former interior minister, and Abdul Hamid Hamoud, a former personal secretary, were convicted for their roles in the persecution of various Iraqi religious parties, including the Dawa Party [party website], led now by Iraqi Prime Minister Nouri al-Maliki. The court's decision must be approved by the Presidency Council and may be appealed, but Aziz's lawyer has not yet indicated whether he will be appealing the decision. Aziz's lawyer has previously claimed [JURIST report] he has been denied access to his client and that the current Iraqi government was attempting to find a reason to execute Aziz [AFP report]. Counsel for Aziz, Giovanni di Stefano, released a statement that he filed a request [materials, PDF] with the Inter-American Commission on Human Rights (IAHRC) [official website] to safeguard Aziz's life, as well as an emergency application [text, DOC] to stay the execution, stating [press release]:
The so called Iraqi Supreme Court have sentenced Mr Aziz to death on allegations that are frankly nothing short of malicious, capricious and non existent. The trial was nothing short of a farce. In September I applied to the IAHRC for emergency procedures to safeguard the life of Mr Aziz. That application was refused but with leave to supply further evidence. Today I have filed a further application with the said IAHRC to safeguard the life of Mr Aziz and I expect the US Government to comply with any order that is or maybe granted.
Aziz is already serving a 15-year sentence [JURIST report] after he was convicted in March 2009 for the 1992 murders of 42 merchants accused of price-gouging during a period of UN-imposed sanctions.

In July, the US transferred 26 Saddam-era Iraqi officials [JURIST report], including Aziz, from Camp Cropper [JURIST news archive] to the Iraqi-controlled Kadhimiya prison in Baghdad. Aziz has said he fears for his life while in the custody of the current Iraqi government. Aziz's family has called for his release on health grounds, claiming he has had two heart attacks and suffered a stroke [JURIST report] in January. In August 2009, Aziz was convicted of forcing Kurdish displacement [JURIST report] from northeast Iraq during the late 1980s, and was sentenced to seven years in prison. Prior to his March conviction, Aziz was acquitted of charges [JURIST report] in connection with the 1999 killing of protesters who rioted in Baghdad and Amarah following the alleged assassination of Grand Ayatollah Mohammed Sadiq al-Sadr.




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Federal court rules government not required to disclose Bagram detainee information
Zach Zagger on October 26, 2010 8:27 AM ET

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[JURIST] The US District Court for the Southern District of New York [official website] denied a request [opinion, PDF] Monday for documents regarding the detention and treatment of prisoners being held at Bagram Air Base [official website; JURIST news archive] in Afghanistan. Judge Barbara Jones granted summary judgment for the government, denying the American Civil Liberties Union (ACLU) [advocacy website] access to the documents under the Freedom of Information Act (FOIA) [text]. The ACLU had sought documents with information on "detainees' citizenships, dates of capture, length of detention at Bagram, locations of capture and circumstances of capture." The court held that the government is not required to confirm the existence nor nonexistence of such documents because of the potential harm to national security. ACLU staff attorney Melissa Goodman criticized [press release] the decision:
The public has a right to know how long the U.S. has kept people locked up in military detention and under what circumstances. The lack of transparency about these key facts is even more disturbing considering the possibility that the U.S. will continue holding and interrogating prisoners at Bagram well into the future. Unfortunately, today's ruling will allow the government to continue hiding this vital information.
Earlier this year, the US Department of Defense [official website] released a list of names of 645 prisoners then detained at Bagram in response to the ACLU's FOIA lawsuit [JURIST reports].

In May, a panel of the US Court of Appeals for the District of Columbia Circuit [official website] ruled that detainees held at Bagram cannot bring habeas corpus challenges in US courts [JURIST report]. In April, the Red Cross confirmed the existence of a secret detention facility [JURIST report] at Bagram. The existence of secret prisons has also drawn criticism from the human rights experts. In June, UN rights experts called on the UN Human Rights Council [official website] to investigate findings from a report [JURIST report] released earlier this year detailing the secret imprisonment of terrorism suspects by 66 countries including the US, Ethiopia, Romania and Pakistan. UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Manfred Nowak [official website] indicated that secret prisons [JURIST news archive] remain a widespread problem and can often lead to torture.




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Chipmaker brings patent infringement suit over Android operating system
Matt Glenn on October 25, 2010 3:24 PM ET

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[JURIST] Digital security company Gemalto [corporate website] announced Monday that it has filed a lawsuit [complaint, PDF; press release] against HTC, Samsung Electronics, Motorola and Google [corporate websites], as well as some of those companies' US subsidiaries, based on the use and sale of the Android operating system and the Dalvik Virtual Machine [product websites], which Gemalto claims infringe on a patent held by the company. In its press release, Gemalto said that the technology at issue was developed in its Dallas office in the late 1990s. The complaint, filed in the US District Court of the Eastern District of Texas [official website], alleges that the defendants are violating federal law [35 USC § 271 text] by using the Android system, encouraging programmers to use the operating system and selling mobile devices that use applications created by the Android system. Gemalto asked the court to enjoin the defendants from infringing on its patents as well as unspecified damages.

In July, patent holding company NTP sued half a dozen smart phone makers [JURIST report] in the US District Court for the Eastern District of Virginia [official website] including Apple [corporate website], HTC, Google and Motorola, over a patent related to delivering e-mail to wireless phones. In June, the US International Trade Commission (ITC) [official website] launched an investigation [JURIST report] into allegations by HTC accusing Apple of patent infringement on its portable electronic devices. HTC filed a complaint with the ITC in May [JURIST report] claiming that Apple had infringed on five of HTC's patents, and is seeking an exclusion order and a cease and desist order, which would ban Apple's importation of iPhones, iPads and iPods. In March, Apple filed a lawsuit [JURIST report] against HTC in the US District Court for the District of Delaware [official website] alleging that several of HTC's products infringe 10 patents owned by Apple. Apple also filed a complaint [text, PDF] against HTC with the ITC claiming infringement of 10 other Apple patents, seeking to bar the importation of infringing devices. Last October, Finnish telecommunications company Nokia [corporate website] filed suit [JURIST report] against Apple alleging that Apple infringed 10 of its patents since the first iPhone was released in 2007.




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Ontario court sentences convicted 'Toronto 18' leader to 16 years
John Paul Putney on October 25, 2010 2:13 PM ET

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[JURIST] The Ontario Superior Court on Monday sentenced [press release] Fahim Ahmad [JURIST news archive], the leader of the Toronto 18 [CBC timeline, JURIST news archive], to 16 years in prison for his role in the terrorist organization. During the trial, the court heard evidence that Ahmad arranged training camps, produced propaganda videos and helped acquire weapons. Ahmad's sentence was greater than the 12 years suggested by the defense but less than the 18 years requested by the Public Prosecution Service of Canada (PPSC) [official website]. Judge Fletcher Dawson reportedly ruled that, although Ahmad was the leader, he was not very effective and lacked the ability [CBC report] to carry out any of the threatened attacks. In a letter to the court last month, Ahmad said he was living in a "fantasy world," but has since changed his views and is no longer intolerant of other religious or western people. Following the court's practice of giving double credit for time in jail prior to the trial, Ahmad has effectively already served more than eight-and-a-half years of his sentence. He could be eligible for parole in another three-and-a-half years.

The sentence follows an unanticipated change to a guilty plea mid-trial [JURIST report] in May. In February, Toronto 18 member Shareef Abdelhaleem was convicted [JURIST report] after a Canadian judge found [Toronto Star report] that virtually no evidence existed to support his claims of entrapment. In January, Amin Mohamed Durrani was released [JURIST report] after pleading guilty to participating in and assisting a terrorist group. Also in January, a Canadian court sentenced [JURIST report] two members of the group, Zakaria Amara and Saad Gaya [JURIST op-ed], to life and 12 years in prison, respectively, for their roles in the plot. Abdelhaleem was the first adult to be tried among the "Toronto 18," originally arrested and charged under Section 83 [Canadian DOJ backgrounder] of the Anti-Terrorism Act [text], Canada's post-9/11 legislation.




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Morocco terrorism suspects face serious human rights violations: HRW
Ashley Hileman on October 25, 2010 12:32 PM ET

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[JURIST] Suspects detained under Morocco's counterterrorism law routinely face serious human rights violations, including illegal detention and torture, according to a report [text, PDF] issued Monday by Human Rights Watch (HRW) [advocacy website]. The 56-page report was created following interviews with seven men detained pursuant to the counterterrorism law. The stories document a pattern of abuse in which suspected terrorists are detained by plainclothes agents, provided no reason for arrest and then transported to secret detention facilities. At the facility, five of the men claim they were tortured and held for an indeterminate length of time. The suspects were then released into police custody only after they agreed to sign a statement, which was later used against them as a "confession" in court. While the counterterrorism law allows for an extension of pre-arraignment detention and an extension of the time a detainee can be denied contact with their lawyer, on many occasions agents reportedly altered the paperwork to fit within permitted limits. HRW contends such violations [press release] stand in the face of legislation Morocco has adopted to defend against infringement of suspects' rights as well as international conventions the country has signed. Sarah Leah Whitson, Middle East and North Africa director at HRW stated, "While Morocco has demonstrated the political will to adopt enlightened human rights legislation, it lacks the political will to enforce it when it comes to terrorism suspects." The report concludes with suggestions for Morocco to adopt, including ensuring that state officers always show credentials, that they be held accountable for treatment of detainees, and that the acceptable pre-arraignment detention period be shortened.

Abuse of detainees, especially those accused of terrorist activities, is a significant human rights issue in multiple countries. Earlier this month, the European Court of Human Rights (ECHR) [official website] announced that it would review the involvement [JURIST report] of the Former Yugoslav Republic of Macedonia in the extraordinary rendition [JURIST news archive] and torture of Khaled El-Masri [JURIST news archive] by the Central Intelligence Agency (CIA) [official website]. In September, HRW urged the Zambian government to investigate the inhumane treatment of prisoners [JURIST report] in that nation's jails and to hold those implicated accountable. In July, the ECHR blocked a proposed rendition [JURIST report] of terrorism suspects from the UK to the US.




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Khadr pleads guilty to terrorism charges
Eryn Correa on October 25, 2010 11:14 AM ET

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[JURIST] Former Canadian Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials, JURIST news archive] on Monday pleaded guilty [press release] to all five charges against him, including conspiracy, murder and aiding the enemy. Under the terms of the agreement, Khadr will serve up to eight more years in prison [NYT report] in addition to the eight he has already spent in detention. At least one of those years will be spent at Guantanamo Bay. One other purported condition of the plea is that the US will support Khadr's eventual application for transfer to Canada, a bargain that has been agreed to by the US and Canada [Toronto Sun report] through a series of sealed diplomatic notes. The guilty plea marks a reversal from Khadr's original stance, voiced by one of his attorneys, that he would not accept a plea deal [JURIST report]. Khadr's sentence will be determined by a panel of seven senior military officers at a hearing that will begin Tuesday.

Khadr's guilty plea makes him the fifth person, and first child soldier, to be convicted of war crimes at Guantanamo Bay. Khadr's trial was postponed earlier this month [JURIST report] while lawyers for both sides attempted to reach a plea agreement. In late August, the military judge rejected Khadr's claim that his confession was a byproduct of torture [JURIST report]. Earlier in August, the same judge ruled that Khadr's confession was admissible at trial [JURIST report]. Canada, which has agreed to accept a transfer after Khadr's sentence is imposed, had previously declined to seek Khadr's repatriation [JURIST report]. Khadr was charged after he was captured following a firefight in Afghanistan in 2002 in which he threw a hand grenade that killed one US soldier and wounded another.

10/26/10 - A signed stipulation of fact [text, PDF] confirms that Khadr was an al Qaeda member, that he threw the grenade and that the felt "happy" when he learned an American soldier had been killed.




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US, Iraq governments urged to investigate reports of detainee abuse
Carrie Schimizzi on October 25, 2010 8:36 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] called Saturday for the Iraqi and US governments to launch an investigation [press release] and prosecute those responsible for alleged detainee abuse [JURIST news archive] after thousands of previously classified documents detailing torture by US and Iraqi forces were posted on WikiLeaks [website]. The group said the leaked reports detail the US military's failure to prevent abuses, including beatings, burnings and lashings, of Iraqi detainees at the hands of their captors. HRW also claimed the US may have violated international law by transferring detainees into Iraqi custody despite being aware that torture and abuse was a common practice. The documents also allegedly reveal that US forces failed to investigate reports of alleged torture and often ignored the "extensive abuses" of detainees by Iraqi security forces over a six-year period. HRW deputy Middle East director Joe Stork called for an investigation into the abuse, which he claims the released documents reveal is "rampant and goes completely unpunished. It's clear that US authorities knew of systematic abuse by Iraqi troops, but they handed thousands of detainees over anyway." HRW's request for an investigation comes almost six months after the group reported on the repeated torture [JURIST report] of Iraqi detainees in a secret prison in Baghdad.

UN Special Rapporteur on torture Manfred Nowak [official website] also responded to the WikiLeaks documents last week, calling for the Obama administration to launch an inquiry [JURIST report] into the role of the US forces in the alleged human rights violations. He stated that the US is party to UN human rights treaties that compel the investigation of such allegations and the criminalization of any form of torture. He also claimed that the incidents documented in the release may constitute violations of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [texts and materials]. In July, Nowak's predecessor called for a similar investigation regarding an additional WikiLeaks release [JURIST report]. The request involved war crimes allegedly committed by Taliban [CFR backgrounder], US and British forces in Afghanistan. In addition to the HRW reports, Amnesty International (AI) [advocacy website] released a similar report in September on the abuses of thousands of Iraqi detainees [JURIST report]. The report, "New Order, Same Abuses: Unlawful Detention in Iraq" [text, PDF] estimates that more than 30,000 detainees are currently being held in Iraqi prisons where they are tortured and mistreated, have no access to legal representation and are held indefinitely without visits from family members.




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UK privacy commission to re-open Google investigation
Erin Bock on October 24, 2010 4:10 PM ET

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[JURIST] The UK Information Commissioner's Office (ICO) [official website] announced Saturday that it will re-open an investigation into Google [corporate website; JURIST news archive] after the company announced [text] that privacy breaches earlier this year were more serious than originally reported. The UK Metropolitan Police [official website] launched an investigation [JURIST report] in June into whether Google violated privacy laws after the company inadvertently collected data on unsecured wireless networks while photographing streetscapes for its Street View maps program. The investigation began after an advocacy group complained that the interception of unencrypted data was not inadvertent [JURIST report]. The initial investigation revealed no wrongdoing, but the ICO has announced that it will re-examine data samples [Guardian report] in light of Google's recent announcement that entire URLs, emails and passwords were captured in some instances. The ICO has the authority to impose a fine of up to 500,000 pounds for breaches of privacy, but such a fine has yet to be issued under the six-month-old law. The ICO indicated that it will demand information [The Independent report] from Google before deciding whether to fine the company. Alan Eustace, Google's Senior Vice President of Engineering and Research, apologized on the company's blog and stated that the company "did not know for sure" what information it had collected when it made the May announcement. Google also indicated that the company will undergo structural changes to prevent the recurrence of such problems.

Multiple countries have launched investigations into Google's privacy breach over inadvertent data collection from Street View vehicles, including Canada, Australia and the US [JURIST reports] and the UK conducted investigations to determine if the breach and Google's practices violated privacy laws]. Earlier this month, Canadian Privacy Commissioner Jennifer Stoddart announced that Google was in violation [JURIST report] of the country's Personal Information Protection and Electronic Documents Act [text, PDF] (PIPEDA). In July, the Australian Privacy Commissioner announced [JURIST report] that its investigation revealed Google's actions violated the Australia Privacy Act [government backgrounder]. In response to these findings, Google issued an apology on its official Australian blog [text], and agreed to conduct a privacy impact assessment on any new Street View data collection activities in Australia and regularly consult with the privacy commissioner about personal data collection activities arising from significant product launches. Spain announced in August that it was launching an investigation [JURIST report] into potential privacy law violations. Also in August, the South Korean National Police Agency (SKNPA) [official website, in Korean] raided the Google South Korean headquarters [JURIST report] in connection with accusations that the company had been illegally acquiring user data.




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US environmental group sues to reinstate drilling moratorium
Dwyer Arce on October 24, 2010 11:28 AM ET

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[JURIST] The Center for Biological Diversity [advocacy website] filed a lawsuit [complaint, PDF, press release] Friday against Interior Secretary Ken Salazar, seeking to have the deepwater drilling moratorium [JURIST news archive] reinstated. The lawsuit, filed in the US District Court for the District of Columbia [official website], argues that Salazar's order to lift the ban without conducting a comprehensive review of the effects of drilling on wildlife and the environment violated the National Environmental Policy Act (NEPA) [42 USC § 4321-4347] and is arbitrary and capricious. Earlier this month, Salazar announced the end of a six-month moratorium [JURIST report] on certain types of deepwater oil drilling, seven weeks ahead of schedule. The moratorium was put in place following the Deepwater Horizon oil spill [JURIST news archive] in April, in which the Center states spilled more than "200 million gallons of oil into the Gulf of Mexico." In explaining the need for the reinstatement, the center said:
The Secretary's failure to include and inform the public in NEPA's decisionmaking process violates NEPA's requirement that agencies make the relevant information available to the public so that it may also play a role in both the decision-making process and the implementation of the proposed activity. In the aftermath of the worst environmental disaster in American history it is arbitrary and capricious and in violation of NEPA for the Secretary to withhold from public notice, comment, and review the Environmental Assessment prior to making his decision.
The lawsuit comes as the Department of Interior (DOI) [official website] is considering granting the first drilling permit [WP report] since lifting the moratorium.

In lifting the drilling ban, Salazar said that new drilling regulations enacted earlier this month [JURIST report] and industry safety strategies developed in the wake of the spill have reduced the likelihood of future incidents such that the ban is no longer needed. Salazar said that, while he is satisfied with recent progress, efforts to tighten safety regulations on deepwater drilling operations would continue. Last month, a federal judge denied [JURIST report] the government's motion to dismiss a lawsuit filed by several drilling companies challenging the latest offshore drilling moratorium. The ruling held that there were "no substantial changes" between the July 12 directive and its predecessor, issued on May 28, that the new moratorium did nothing to amend or prevent the wrongs found in the first and that the wrongful behavior alleged in the original order could reasonably be expected to occur as a result of the more recent iteration. The US District Court for the Eastern District of Louisiana [official website] rejected a request to reinstate [JURIST report] the May 28 ban in July, weeks after the US Court of Appeals for the Fifth Circuit [official website] similarly declined [JURIST report].




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Iraq high court rules delay in government formation unconstitutional
Dwyer Arce on October 24, 2010 10:49 AM ET

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[JURIST] The Iraqi Supreme Court ruled Sunday that the seven-month delay in forming a government following the March parliamentary elections [CEIP backgrounder; JURIST news archive] was unconstitutional, ordering parliament to reconvene. The lawsuit was filed by an independent group [WP report] after the parliament failed to elect a parliamentary speaker during a brief session in June. The parliament failed to formally close the session in an attempt to circumvent constitutional constraints in forming the new government. Under the Iraqi Constitution [text, PDF], the speaker is responsible for electing a president, who then asks the largest political bloc to form the government. The delay can be attributed in part to the close results of the March elections. The secular Iraqiya alliance, led by Iyad Allawi [Al Jazeera profile], holds a slim two-seat lead over the Shiite State of Law [party website] coalition of incumbent Prime Minister Nouri al-Maliki [BBC profile]. Acting Speaker Fouad Massoum said Sunday that he would abide by the ruling [AP report] and expects to announce the date of the next session by the end of the week.

In August, UN Secretary-General Ban Ki-moon [official website] called for Iraq's political leaders to work together [JURIST report] "with a higher sense of urgency" to form a new government, warning that further delays could create more instability. Ban expressed the concern that the delay could lead to a "growing sense of uncertainty in the country" and prevent the parliament from addressing pressing domestic issues, including Arab-Kurdish disputed areas revenue-sharing, the adoption of legislation related to hydrocarbons, relations among the federal and regional governments, the constitutional review process and the strengthening of institutions of governance and the rule of law. In June, the Supreme Court ratified the final results [JURIST report] of the elections, officially confirming the narrow victory for the secular Iraqiya alliance. Allawi hopes Iraqiya's victory will be a turning point for bipartisan participation among the religious sects, but his goal of unification may be thwarted, as Maliki's bloc has already announced an alliance with the Shia Iraqi National Alliance, which polled third, to form the largest grouping in parliament.




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Florida AG declines to appeal decision striking down gay adoption ban
Sarah Paulsworth on October 23, 2010 2:59 PM ET

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[JURIST] Florida Attorney General Bill McCollum [official profile] announced [press release] Friday that his office will not appeal a decision [text, PDF] by Florida Third District Court of Appeals [official website] striking down the state's prohibition [text] against adoption by gay men and women. In September, the district court ruled that the prohibition was unlawful because it failed rational basis review [JURIST report] and violated the state constitution's equal protection clause. The case was originally brought by Martin Gill, a gay man who was denied adoption of two boys he and his partner had fostered for five years. Despite McCollum's reluctance to appeal the recent court decision, his statement suggested that future litigation seeking to reinstate the ban remains a possibility:
After reviewing the merits of independently seeking Supreme Court review, following the decision of our client the Department of Children and Families not to appeal the decision of the Third District Court of Appeal, it is clear that this is not the right case to take to the Supreme Court for its determination. No doubt someday a more suitable case will give the Supreme Court the opportunity to uphold the constitutionality of this law.
Earlier this month, Florida Department of Children and Families [official website] also announced [CNN report] that they will not appeal the decision. Florida Governor Charlie Crist [official website] had ordered the department to stop enforcing the law immediately after the court's ruling. The American Civil Liberties Union (ACLU) [official website] reacted [press release] to the attorney general's announcement stating that the group was thankful that the battle over this "cruel policy" had come to an end. Florida was the only remaining state to prohibit gay adoption.

Gay adoption rights have become an issue of international significance. In September, New York Governor David Paterson [official website] signed a bill [JURIST report] allowing unmarried partners, including gay couples, to jointly adopt a child. In August, the UK Charity Commission [official website] ruled that a Catholic social services agency could not restrict its adoption services [JURIST report] to married heterosexual couples and that the discrimination violated Article 14 of the European Convention on Human Rights [text, PDF]. Also in August, the Supreme Court of Mexico [official website, in Spanish] upheld a Mexico City law [JURIST report] allowing adoptions by same-sex couples, determining that a ban would discriminate against same-sex couples and would violate the Mexican Constitution [text, PDF]. Last year, the Uruguayan Senate [official website, in Spanish] voted to approve a law [JURIST report] legalizing adoption by same sex couples.




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France senate approves retirement reform amid protests
Daniel Makosky on October 23, 2010 12:34 PM ET

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[JURIST] The French Senate [official website, in French] on Friday approved [press release, in French] retirement reform legislation designed to keep the country's pension system viable. The bill [text, in French; materials, in French], which passed by a 177-153 vote, increases the age at which individuals can retire from 60 to 62 while also raising the age of eligibility for full pension benefits from 65 to 67. Lawmakers contend that the legislation is necessary in order to maintain the system's solvency. Debate over the bill has led to multiple strikes and protests across France, and, in the wake of its passage, union leaders have stated that additional strikes are forthcoming [AFP report] while legal challenges are pursued. The bill must now be reconciled with a draft adopted by the National Assembly [official website, in French], and officials expect final approval by Wednesday.

France has undertaken a series of controversial legislative initiatives in recent weeks. Earlier this month, the National Assembly adopted an immigration bill [JURIST report] that would strip criminals born in other countries of their French nationality if they have been convicted of violent crimes against police officers. Human Rights Watch (HRW) [advocacy website] has criticized the bill, urging the French government to reject the proposal because it targets minority populations, particularly the Roma [JURIST news archive]. The Senate approved a bill [JURIST report] last month that would make it illegal to wear the Islamic burqa [JURIST news archive] or other full face veils in public, punishable by mandatory citizenship classes or a USD $185 fine. Opponents of the legislation may challenge the law [BBC report] in the European Court of Human Rights in Strasbourg [official website], which has the ability to render a binding opinion on France.




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UN investigator calls for inquiry into Iraq rights abuses
Daniel Makosky on October 23, 2010 11:44 AM ET

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[JURIST] UN Special Rapporteur on torture Manfred Nowak [official website] called Saturday for the Obama administration to launch an inquiry into the role of the US in human rights violations allegedly committed in Iraq [JURIST news archive]. Nowak's comments follow the release of government information on WikiLeaks [website] that included thousands of previously classified documents. Many of the documents purportedly illustrate instances of abuse, torture and murder carried out by US and Iraqi forces. He stated that the US is party to UN human rights treaties that compel the investigation of such allegations and the criminalization of any form of torture. He also claimed that the incidents documented in the release may constitute violations [Guardian report] of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [texts and materials]. In addition to abuses allegedly committed by coalition forces, Nowak stressed that the US must investigate instances where transferring detainees into the custody of other countries exposed them to an increased risk of facing torture [JURIST news archive]. Absent a full investigation, Nowak claims that the US would be in breach of its international obligations.

Last month, Nowak's predecessor called for a similar investigation regarding an additional WikiLeaks release [JURIST reports]. The request involved war crimes allegedly committed by Taliban [CFR backgrounder], US and British forces in Afghanistan. Unlike the US, Afghanistan is a party to the Rome Statute [text, PDF], giving the International Criminal Court (ICC) [official website] jurisdiction over war crimes committed in Afghan territory. Earlier this week, Chairperson of the UN Committee Against Torture (CAT) [official website] Claudio Grossman [official profile] urged nations to "reconnect with the values" of the Convention Against Torture and increase efforts to combat torture [JURIST report]. Grossman stated that the need for heightened measures is particularly important in emergency situations where interrogators have little time to gain information from captives. The UN claimed that reports of rights abuse were found worldwide and that countries have grown increasingly apathetic to the use of torture as an interrogation technique.




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Haiti report finds officers killed 12 unarmed detainees during prison uprising: NYT
Zach Zagger on October 22, 2010 4:36 PM ET

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[JURIST] Haitian prison officers are alleged to have killed 12 detainees "deliberately and without justification," using "inappropriate, abusive and disproportionate force" during a January 19 prison uprising, according to an independent commission, the New York Times [media website] reported [text] Thursday. The Times obtained an exclusive copy of the commission's report, which said the incident involved "grave violations of human rights." The uprising occurred just days after Haiti was hit with a devastating earthquake [JURIST news archive], which killed more than 200,000 people and left some one million homeless. The commission found that 14 others were wounded when the officers fired into a crowd of unarmed detainees, and, although the commission could only confirm 12 deaths, more are believed to have been killed. The event was originally covered up by local authorities in Les Cayes, but a Times investigation caused a commission to be formed [JURIST report] to inquire into the incident. The commission found it difficult to confirm the deaths because of contradictory reports, because many of the bodies had been already been buried and because some of the prisoners involved were transferred and died from other causes. The commission warned that lessons must be learned from the incident and it is evidence of the poor conditions of Haitian prisons and lack of adequately trained prison officers.

The commission was funded by both the Haitian government and the UN and was composed of three foreign and two Haiti experts led by Lt. Gen. Salvatore Carra of Italy and Florence Elie, Haiti's ombudsman. The January earthquake strained the Haiti prison system and allowed many prisoners to escape. In February, the acting head of the UN Stabilization Mission in Haiti [official website] urged Haitians to turn in prisoners who escaped [JURIST reports] when the earthquake destroyed prisons and jails. The aftermath of the earthquake also placed a strain on detainees arrested since the disaster, as limited space and limited access to judges burdened the country's already tenuous criminal justice system.




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Russia prosecutors seek 14-year sentence in second Khodorkovsky case
Zach Zagger on October 22, 2010 4:11 PM ET

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[JURIST] Russian prosecutors asked Friday for a 14-year prison sentence in the second case against former oil executive Mikhail Khodorkovsky [defense website; JURIST news archive], though his sentence could be reduced based on time served for a prior conviction. Khodorkovsky and his business partner Platon Lebedev [defense website] are charged with embezzling [JURIST report] USD $25 billion worth of oil produced by their company Yukos. The men pleaded not guilty [JURIST report] and have maintained that the charges are politically motivated. The court could take weeks to deliver the verdict. The prosecutors asked that the court take into account time served, but it was unclear whether they meant from the time Khodorkovsky was first detained in 2003 or from the new charges filed in 2007.

Khodorkovsky was once Russia's richest man and large political campaign contributor. He and Lebedev are currently serving eight-year prison sentences after being convicted [JURIST report] in 2005 on fraud and tax evasion charges stemming from an attempt to embezzle and strip their Yukos [JURIST news archive] oil company of valuable assets. Earlier this year, former Russian prime minister Mikhail Kasyanov [BBC profile] testified that former president Vladimir Putin [official website; JURIST news archive] ordered the arrest [JURIST report] of Khodorkovsky because he had funded the Communist Party [party website, in Russian] without first getting approval to do so from the president.




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UN rights office says Guinea security forces committed abuses in election demonstrations
Aman Kakar on October 22, 2010 3:15 PM ET

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[JURIST] The UN Office of High Commissioner for Human Rights (OHCHR) [official website] expressed concern on Friday that security forces in Guinea "committed serious human rights violations" [press release] in subduing demonstrations that took place this week ahead of the run-off presidential election scheduled for Sunday. The OHCHR stated that security forces indiscriminately shot unarmed civilians, broke into private homes and severely beat young men who were not offering resistance. Security forces allegedly illegally detained and held a number of people in undisclosed locations without access to legal representation. The press release expressed specific concern that members of the Force Speciale de Securisation du Processus Electoral (FOSSEPEL), a special police unit that was formed to secure the electoral process, were among the security forces. The OHCHR called on political leaders to restrain their supporters in security forces and the general population and respect the right of people to assemble and protest peacefully. Guinea's new election chief, General Toumany Sangare, on Friday stated that the run-off election will not be held on Sunday [BBC Report]. Sangare cited lack of preparation as a reason for the delay, and he did not announce another date.

This is the third time the runoff election has been postponed. The first election, scheduled for July 18, was canceled due to allegations of misconduct during balloting [BBC report]. The second election, scheduled for September 19, was canceled amid violence [BBC Report] sparked by the election fraud conviction [JURIST report] of two senior election officials. The votes have divided primarily along ethnic lines, with all candidates running on a similar platform of economic expansion and the rule of law. The presidential election is seen as the first free election in Guinea since attaining independence in 1958. In May, the International Criminal Court (ICC) sent a delegation from the Office of the Prosecutor (OTP) [official websites] to Guinea to further investigate the killing [JURIST report] of more than 150 pro-democracy protesters in Conakry [BBC backgrounder] in September 2009. The protesters had rallied against Guinean military leader Moussa Dadis Camara [BBC profile], who announced in October that he intended to push elections forward three months and stand for election, breaking a promise not to run made shortly after he took power. An assassination attempt on Camara two months later eventually drove him into exile.




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Canada Supreme Court broadens journalists' rights to protect sources
Julia Zebley on October 22, 2010 2:08 PM ET

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[JURIST] The Supreme Court of Canada [official website] on Friday expanded [judgment, PDF] journalists' rights to protect sources while testifying.The decision, delivered by Justice Louis LeBel, expanded a May Supreme Court ruling that denied journalists the overarching ability to guarantee anonymity [JURIST report] during testimony, instead limiting source disclosure to a case-by-case basis. Friday's decision did not apply a broad rule to protection of sources, but cautioned judges against forcing journalists to reveal source identity when not in the public interest, especially in civil proceedings:
If relevant information is available by other means and, therefore, could be obtained without requiring a journalist to break the undertaking of confidentiality, then those avenues ought to be exhausted. The necessity requirement, like the earlier threshold requirement of relevancy, acts as a further buffer against fishing expeditions and any unnecessary interference with the work of the media. Requiring a journalist to breach a confidentiality undertaking with a source should be done only as a last resort.
The Supreme Court's decision concerned a lawsuit brought against The Globe and Mail journalist Daniel LeBlanc over his reporting on a federal sponsorship scandal that allegedly damaged Le Groupe Polygone Editeurs [CBC profile]. During cross-examination, LeBlanc refused to reveal his anonymous source. The Globe and Mail's report [text] on the proceedings declared the decision, "a significant victory for The Globe and Mail and other media outlets because it creates strong protection for journalists who are asked to reveal their anonymous sources." The original suit has been remanded to the Quebec Superior Court, where the identity of LeBlanc's source will be reviewed for relevance to the proceedings before he is questioned again.

Protection for journalists [JURIST news archive] and their sources continues to be a worldwide concern. In April, Germany announced plans to enact legislation [JURIST report] meant to increase freedom of the press. In February, the Icelandic Parliament [official website, in Icelandic] began considering measures [JURIST report] aimed at increasing protections for journalists and promoting freedom of speech and transparency in government. Last December, the US Senate Judiciary Committee [official website] approved a bill [JURIST report] that would protect journalists' abilities to shield sources in federal court proceedings. Reporters Without Borders [advocacy website] ranked Iceland number one in press freedom in 2009 [2009 rankings], while ranking Germany eighteenth, Canada nineteenth, and the US twentieth. Their profile of Canada [materials] notes LeBlanc's case.




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Dutch court dismisses judges for bias in politician's trial for anti-Islam statements
LaToya Sawyer on October 22, 2010 2:03 PM ET

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[JURIST] A Dutch court panel on Friday dismissed the presiding judges in the trial of right-wing politician Geert Wilders [personal website; JURIST news archive] in response to claims of judicial bias. Earlier this month, the court rejected Widlers' claims of judicial bias that were fueled by his accusation [JURIST reports] that a judge's remarks cast him in a negative light to the jury. The panel considered these previous accusations, along with the judges' recent postponement [RNW report] of a decision on the defense request to re-call a witness, finding an indication of bias and dismissing the judges. The replacement judges will subject Wilder to a new trial because the new judges were not in attendance at the previous hearings. If convicted on the charges of making anti-Islamic statements, Wilders faces a maximum sentence of one year in jail.

Wilders is known for calling Islam "fascist," comparing the Quran to Adolf Hitler's Mein Kampf and advocating prohibiting Muslims from immigrating to the Netherlands. Earlier this month, he announced [JURIST report] that the Dutch government will attempt to ban the burqa [JURIST news archive] and other full Islamic veils to secure the support of his Freedom Party in forming a coalition government. An Amsterdam trial court ruled in February held that it had jurisdiction to try Wilders for anti-Islamic statements. The court rejected [JURIST report] Wilders' claim that he should be tried by the Supreme Court as a member of parliament, finding that his alleged crime was committed outside his capacity as an MP. Wilders claimed that his right of freedom of speech was guaranteed to him as a Dutch man first, not a politician.




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Indonesia admits responsibility for detainee torture video
Drew Singer on October 22, 2010 12:59 PM ET

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[JURIST] Indonesian officials on Friday admitted to their soldiers' involvement in the torture of Papuan detainees, which garnered international outrage after a video of the torture surfaced [CNN report; WARNING: readers may find the video disturbing] this week. Security Affairs Minister Djoko Suyanto [website, in Bahasa] said that the solders "overreacted," and promised a thorough investigation [AFP report]. The admission comes four months after Human Rights Watch (HRW) [advocacy website] urged the Indonesian government to release secession activists and adhere to international standards of free speech [report materials; press release]. The report, "Prosecuting Political Aspiration: Indonesia's Political Prisoners," criticized the Indonesian government for its treatment of people imprisoned for peaceful political expression related to the Papuan [Economist backgrounder] and Moluccan [GlobalSecurity backgrounder] secession movements. According to HRW, these prisoners are subjected to torture, poor prison conditions and the denial of medical services and are transferred to prisons distant from their homes [JURIST report] in order to isolate them from their families .

The Indonesian government has also faced criticism over other human rights issues. Earlier this month, the Indonesian Constitutional Court [official website, in Bahasa] overturned a law [JURIST report] that has allowed the Indonesian government to ban books it deemed controversial for nearly 50 years. The court found that giving the Attorney General the authority to ban books violated the Indonesian Constitution [text] by denying basic human rights without due process of the law. In April, the Constitutional Court voted 8-1 to uphold [JURIST report] a controversial anti-blasphemy law enacted in 1965 by the first Indonesian president. In 2008, HRW called for Indonesia to protect freedom of religion [JURIST report] and reverse a decree that provides for the prosecution of members of a controversial Islamic sect and to uphold its commitments under the ICCPR.




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France court to try 2 officers over teen deaths that sparked 2005 riots
Matt Glenn on October 22, 2010 12:39 PM ET

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[JURIST] Two French police officers who chased three teens into a power substation, resulting in two of their deaths from electrocution, will stand trial on criminal charges, lawyers said Friday. The officers are charged with "non-assistance to a person in danger" [CP report] under Article 223-6 of the French penal code [text] for failing to alert anyone that the teens had entered the substation while running from officers. The officers, one of whom was on the scene and the other of whom was listening to radio reports from a command post, claim they were not aware that the teens had entered the substation. The teens' deaths set off riots in France [JURIST news archive] that lasted three weeks. Investigating judges decided to press forward with the charges, despite last month's recommendation from prosecutors [JURIST report] that the charges be dropped due to lack of evidence that the officers knew the teens had entered the substation. If convicted, each officer faces up five years in prison and fines that could reach nearly USD $100,000.

Officials first charged the officers for failure to assist in 2007. In 2006, an internal police investigation found that the officers had pursued the youths [JURIST report], a charge the officers originally denied, and that the officers acted with a "lack of thought" in not calling the power company to have the substation shut down immediately. Also In 2006, French Prime Minister Dominique de Villepin [JURIST news archive] promised to strengthen anti-vandalism laws [JURIST report] in France after a man was injured in violence marking the one-year anniversary of the 2005 riots. In 2006, France began to deport [JURIST report] some of the foreign rioters. In early 2006, France lifted its state of emergency [JURIST report] implemented during the riots. The riots began in late October 2005 and continued into November [JURIST report] of that year.




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Pentagon limits 'Don't Ask Don't Tell' discharge authority
Ashley Hileman on October 22, 2010 11:16 AM ET

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[JURIST] US Defense Secretary Robert Gates [official profile] issued a memorandum on Thursday limiting the authority to discharge openly gay service members [press release] to five senior Department of Defense (DOD) officials. The memo is seen as a response to the uncertain future of the "Don't Ask, Don't Tell" (DADT) [10 USC § 654; JURIST news archive] policy, arising from the recent injunction [JURIST report] by the US District Court for the Central District of California [official website] and the subsequent temporary stay [JURIST report] issued Wednesday by the US Court of Appeals for the Ninth Circuit [official website]. According to the memo, the decision to expel can now result only from a consultation between one of the three relevant service secretaries, the Pentagon's legal counsel Jeh Johnson and the undersecretary for personnel Clifford Stanley [official profiles]. Previously, the decision could be made by a larger number of less senior military and civilian officials. The legal uncertainty of the policy has also led DOD officials to caution service members not to alter their conduct at this time, with Stanley issuing a warning that changing their status because of the injunction "may have adverse consequences for themselves or others depending upon the state of the law." The appeals court decision [press release] as to whether the Pentagon will be able to continue to enforce the law could come as early as next week. The Ninth Circuit Court requested that the Log Cabin Republicans (LCR) [advocacy website], the conservative gay activist organization that brought the suit [LCR backgrounder], submit their opposition to the order after which the court will decide whether to issue a stay that will last until February when it hears the case.

Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy. In September, the Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the policy. In May, the House of Representatives [official website] and the Senate Armed Services Committee voted to repeal the policy after President Barack Obama and Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness. In March, Gates announced changes to the enforcement [JURIST report] of the policy to make it more difficult to expel openly gay service members from the military. The changes including raising the level of who can initiate and conduct investigations and revisions both to what constituted credible information to initiate an investigation, as well as to what constituted a "reliable person" for initiating an investigation.




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Sri Lanka government defends war crimes commission
Megan McKee on October 22, 2010 9:46 AM ET

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[JURIST] The Sri Lankan government on Thursday continued to defend the Lessons Learnt and Reconciliation Commission (LLRC), a government mandated probe into alleged rights violations committed during the end of the nation's civil war [JURIST new archive], against widespread criticism. The commission is accused of lacking objectivity [IRIN report], showing favor for the ruling party, failing to protect witnesses and having a narrow mandate that prevents it from effectively investigating crimes. The LLRC has been further criticized [HRW press release] as a superficial attempt to stave off an international investigation into accusations of widespread and severe human rights abuses by government forces during the war. Earlier this year, Sri Lanka declined to allow a panel of UN experts entry to examine alleged violations of human rights and humanitarian law in the final stages of the civil war. The government has said that it plans to submit [Daily Mirror report] the LLRC's final report to the UN Secretary-General and the international community and plans to take remedial measures based on the recommendations of the report.

Last week, international human rights groups Human Rights Watch (HRW), Amnesty International (AI) and the International Crisis Group (ICG) [advocacy websites] publicly declined an invitation [joint letter; JURIST report] to testify before the LLRC. In rejecting Sri Lanka's invitation, the groups stated that they would welcome the opportunity to appear before the commission if they felt it was a genuine and credible effort to pursue accountability and reconciliation. The rights groups criticized the commission's failure "to meet basic international standards for independent and impartial inquiries" and "government failure to address impunity and continuing human rights abuses". The groups went on to state that the LLRC's mandate, composition, procedures and the nation's human rights environment make it impossible to carry out a free and independent inquiry into war crimes. AI is particularly concerned about the suitability of a number of former officials serving on the commission who have defended Sri Lanka against war crimes accusations, and the lack of witness protection provisions. In the recent past, the advocacy groups have accused [JURIST report; JURIST report] Sri Lanka of carrying out various human rights violations during the final months of the 30-year civil war.




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Cuba activist awarded top EU human rights prize
Daniel Makosky on October 22, 2010 7:42 AM ET

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[JURIST] The European Parliament [official website] on Thursday named Cuban activist Guillermo Farinas [press release] as the recipient of its 2010 Sakharov Prize for Freedom of Thought [official website]. Farinas has undergone multiple hunger strikes in support of political prisoners and to protest conditions in Cuba, and was the publisher of the now-defunct Cubanacan Press, which sought to raise awareness of the former's statuses. Earlier this year, Farinas staged a 135-day hunger strike that helped persuade Cuba to agree to the release of 52 political prisoners [JURIST report] in an arrangement negotiated with the Roman Catholic Church [church website] Five additional prisoners were approved for release [AFP report] upon the announcement of Farinas' nomination. A ceremony to award Farinas the prize is scheduled for December in France.

The Prize was established in 1988 to honor individuals or organizations for their efforts on behalf of human rights and fundamental freedoms. Named after Russian physicist Andrei Sakharov [EP profile], winner of the 1975 Nobel Peace Prize and referred to as the father of the Soviet hydrogen bomb, the award is given to "exceptional individuals or organizations fighting against oppression, intolerance and injustice." Past winners include the Russian human rights group Memorial [advocacy website, in Russian; JURIST report], Hu Jia, Alexander Milinkevich [JURIST reports], former UN secretary-general Kofi Annan [official profile], Nelson Mandela [Nobel Peace Prize profile] and Oswaldo Jose Paya Sardinas [official website, in Spanish], one of Cuba's most prominent dissidents.




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US lawyer to face charges of genocide denial in Rwanda
Megan McKee on October 22, 2010 7:08 AM ET

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[JURIST] Rwandan Prosecutor General Martin Ngoga said Wednesday that US lawyer and JURIST Forum [website] contributor Peter Erlinder [professional profile; JURIST news archive] will be summoned to face charges of genocide denial in Rwanda. Erlinder, a defense lawyer at the International Criminal Tribunal for Rwanda (ICTR) [official website], contends that it is incorrect to place the blame for the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive] on one side. Ngoga made the announcement [CP report] from Arusha, Tanzania, home of the ICTR. Erlinder has made no comment on the statement, but he has previously said that he believes his contact with the US embassy shortly before his detention saved his life. He has also claimed to be on a reported hit list consisting of the opponents of Rwandan President Paul Kagame [official website; BBC profile].

The appeals chamber of the ICTR released a decision [text, PDF; JURIST report] earlier in October that allowed the Rwandan government to pursue charges against Erlinder. In a reversal of a previous statement [JURIST report], the ICTR decided that Erlinder was charged for actions committed outside the scope of his ICTR employment as a defense lawyer. Therefore, the Convention on Privileges and Immunities of the United Nations [text, PDF], a treaty to which Rwanda is a party that prevents legal action of any kind against UN employees working in an official capacity, does not apply, and Erlinder is not immune from the prosecution. Rwandan Justice Minister Tharcisse Karugarama praised the ICTR decision, emphasizing the country's reverence for the immunities treaty and announcing that Rwanda will continue with the prosecution. Erlinder returned to the US in June after spending 21 days in a Rwandan prison following his arrest [JURIST reports] on charges that he denied the genocide. The High Court of Rwanda [GlobaLex backgrounder] a week earlier had released Erlinder on bail due to persisting medical problems from what Rwandan officials say was a suicide attempt [JURIST reports].




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European rights court rules against Russia over gay pride parade ban
Sarah Posner on October 21, 2010 2:12 PM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [judgment; press release, PDF] Thursday that Russia violated the rights of gay activists by banning gay rights parades in Moscow. Russian gay rights activist Nikolai Alekseyev argued before the court that the ban violated Articles 11, 13 and 14 of the European Convention on Human Rights [text]. The court unanimously agreed, finding that gay rights parades are protected by the freedom of assembly and association, the right to an effective remedy and the prohibition of discrimination. The ECHR ruled:
It has been established ... that the main reason for the ban imposed on the events organised by the applicant was the authorities' disapproval of demonstrations which they considered to promote homosexuality. In particular, the Court cannot disregard the strong personal opinions publicly expressed by the mayor of Moscow and the undeniable link between these statements and the ban. In the light of these findings the Court also considers it established that the applicant suffered discrimination on the grounds of his sexual orientation and that of other participants in the proposed events. It further considers that the Government did not provide any justification showing that the impugned distinction was compatible with the standards of the Convention.
The court ordered Russia to pay Alekseyev 12,000 euros for non-pecuniary damages and an additional 17,510 euros for costs and expenses.

The status of gay rights in Russia has been a contentious issue in the past, particularly in Moscow. In 2007, a Moscow district court upheld a ban on gay pride parades [JURIST report] under both Russian law and the European Convention of Human Rights. Following the ruling, several gay rights activists were arrested [JURIST report] in 2008 during a Moscow Pride event held in the city. Additionally, gay rights demonstrators, including European lawmakers, were arrested [JURIST report] in 2007 while protesting Moscow Mayor Yuri Luzhkov's rejection of gay rights parade request.




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New York courts requiring lawyers to confirm accuracy of foreclosure paperwork
Andrea Bottorff on October 21, 2010 12:35 PM ET

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[JURIST] New York Chief Judge Jonathan Lippman [official profile] announced [statement, PDF] Wednesday a new court rule that requires lawyers to file a separate affirmation [form, PDF] confirming the accuracy of paperwork used in residential foreclosure cases. The new rule is effective immediately and has been added to the New York State Unified Court System [official website] residential foreclosure rules [text]. Lippman explained that the new rule is an effort to provide better protection [press release] to people facing the possibility of losing their home, particularly in response to the recent discoveries of errors in foreclosure documents nationwide. Lippman said the new rule "will play a vital role in ensuring that the documents judges rely on will be thoroughly examined, accurate, and error-free before any judge is asked to take the drastic step of foreclosure." Under the rule, lawyers must file an affirmation at different times depending on if the case is new, pending, or if the case has been decided but the property has not yet been sold. The new filing requirement will require lawyers to re-examine documents in 78,000 foreclosure cases [AP report] currently pending in the state.

Last week, attorneys general from all 50 states and the District of Columbia announced [joint statement, PDF] that they have formed a bipartisan group [JURIST report] called the Mortgage Foreclosure Multistate Group (MFMG), which will investigate allegations of procedural defects committed by mortgage loan companies during foreclosure processes. The MFMG explained that its investigation will focus on "robo-signing," a process by which individuals signed affidavits and other foreclosure documents without having personal knowledge of the facts and without confirming the accuracy of supporting documentation. The group asserted that such practices "constitute a deceptive act and/or an unfair practice." The MFMG will also look into allegations that affidavits were signed without a notary public being present, which is violative of state law. Investigations have already been underway in some states, and employees of several large lending companies have admitted in depositions that they failed to read documents prior to signing them [AP report]. Bank of America [corporate website] has placed a moratorium on foreclosure sales [statement] until the company has a chance to assess the accuracy of past foreclosure decisions and documentation. Wells Fargo [corporate website] announced [statement] last week that it would not place a moratorium on sales, stating that they frequently conduct reviews of their foreclosure practices and their affidavits have been accurate.




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Myanmar high court sets date to hear Suu Kyi appeal
Maureen Cosgrove on October 21, 2010 11:46 AM ET

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[JURIST] Myanmar's Supreme Court announced Wednesday that it will hear the appeal filed by opposition leader Aung San Suu Kyi [BBC profile; JURIST news archive] asking for her release from house arrest on October 29. Suu Kyi's lawyers will present their arguments [Reuters report] before the Special Appellate Bench, a multi-judge panel, in Myanmar's capital Naypyitaw. Lawyers for Suu Kyi filed the appeal [JURIST report] in May in order to challenge the 18-month extension of her house arrest. The sentence extension [JURIST report] resulted from Suu Kyi's conviction for violating the terms of her house arrest by allowing an American man to stay at her home. Suu Kyi's release is scheduled for November 13, six days after the country's first national election in two decades. This is Suu Kyi's last chance for appeal [AP report], and her lawyers are unsure whether the court's judgment will be handed down before she is released.

The timeliness of the court's decision will influence Suu Kyi's ability to run for office in the November elections. Under Myanmar's current election laws [JURIST report] a provision prohibiting political prisoners from seeking public office will prevent Suu Kyi from participating in the elections if she remains under house arrest. In May, Suu Kyi filed suit [JURIST report] with the country's high court in order to annul this portion of the controversial law. The suit also seeks to stop the dissolution of her opposition party, the National League for Democracy (NLD) [party website] and requests the establishment of a parliament of lawmakers who won in the 1990 elections. The arrest of Suu Kyi, a democracy advocate and Nobel Laureate, has proven controversial and has been highly criticized [JURIST report] by the international community. She has spent 14 of the past 20 years in prison or under house arrest for alleged violations of an anti-subversion law [text, PDF].




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Sudan war crimes suspects agree not to contest ICC charges
Andrea Bottorff on October 21, 2010 11:31 AM ET

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[JURIST] Two Sudanese men suspected [pre-trial materials] of committing war crimes related to the ongoing violence in the Darfur [JURIST news archive] region of Sudan agreed earlier this week not to contest the charges [briefing text, PDF] during an upcoming International Criminal Court (ICC) [official website] confirmation hearing, marking the first waiver of its kind for the ICC. Abdallah Banda Abakaer Nourain (Banda) and Saleh Mohammed Jerbo Jamus (Jerbo) filed a joint motion with the ICC Prosecutors Office [official website] agreeing to the facts laid out in the prosecution's description of charges. If the ICC judges approve the motion, the waiver would only apply to an expedited confirmation hearing, preserving the suspects' right to contest the prosecution's facts if the case goes to trial. Banda and Jerbo are suspected in connection with the September 2007 attack on African Union (AU) [official website] peacekeeping troops at Haskanita [BBC backgrounder], which resulted in the death of 12 peacekeepers. The confirmation hearing is scheduled for November 22.

The men surrendered [JURIST report] to the ICC in June, nearly a year after summonses for Banda and Jerbo [texts, PDF] were issued under seal by Pre-Trial Chamber I, which included charges of murder, intentionally attacking a peacekeeping mission and "pillaging." ICC Chief Prosecutor Luis Moreno-Ocampo [official website] praised the voluntary appearance [press release] of the men and indicated that their surrender meant that the ICC would have the chance to prosecute all suspects found in connection with the Haskanita attack. A third rebel leader, Bahar Idriss Abu Garda, was charged by the ICC earlier this year [case materials] in connection with the attack, but the charges were dropped [JURIST report] due to lack of evidence.




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Environmental groups sue BP for oil spill harm to endangered species
Aman Kakar on October 21, 2010 11:28 AM ET

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[JURIST] Environmental advocacy groups Defenders of Wildlife, Gulf Restoration Network and Save the Manatee Club [advocacy websites] filed a federal lawsuit [complaint, PDF] Wednesday against oil British Petroleum (BP) [corporate website] for the ongoing harm to endangered and threatened wildlife caused by the company's Deepwater Horizon oil spill [BBC backgrounder, JURIST news archive] in the Gulf of Mexico. The suit, filed in the US District Court for the Eastern District of Louisiana [official website] under the Endangered Species Act (ESA) [text, PDF], holds that at least 27 endangered animal species inhabiting the Gulf were harmed by the oil spill. The filing specifically discusses the harm caused to sea turtles, whale species, birds and manatees. The groups claim that the endangered species have been harmed by significant habitat modifications that significantly impair essential behavioral patterns. The complaint cites testimony [text, PDF] given in September by oceanographer Ian McDonald to the National Oil Spill Commission [official website] where he stated that more than 50 percent of the total discharge of oil from the spill remains in the Gulf ecosystem. An attorney for the Defenders of Wildlife commented on the necessity of the suit [press release] stating, "[t]he harmful effects of the BP oil well blowout on endangered and threatened wildlife will continue for many years. Through this lawsuit, we ask the court to compel BP to provide the resources necessary to ensure imperiled species in the Gulf recover from this disaster."

Numerous lawsuits are pending against BP in connection with the Deepwater Horizon spill. In August, Alabama Attorney General Troy King [official website] filed a lawsuit [JURIST report] against BP for damages to the state's coast and economy, claiming that the oil giant has failed in its efforts to accept responsibility for the oil spill. In July, a class-action lawsuit [complaint, PDF; JURIST report] was filed against the company in a Louisiana state court alleging that its negligent actions led to the spill and that BP was further negligent in its oversight of the cleanup effort, resulting in volunteers falling ill due to inadequate protective equipment. In June, two lawsuits were filed against BP [JURIST report] alleging violations of the Racketeer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.] statute. The lawsuits allege that BP purposefully defrauded the American public in order to increase company profits. Also in June, US Attorney General Eric Holder [official website] announced that the DOJ is reviewing whether any civil or criminal laws were violated [JURIST report] by BP resulting in the oil spill. Holder cited several statutes being examined by government lawyers, including the Clean Water Act and the Oil Pollution Act of 1990 [materials].




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Rwanda genocide tribunal affirms convictions, reduces sentences for war crimes
Drew Singer on October 21, 2010 10:34 AM ET

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[JURIST] The appeals chamber of the International Criminal Tribunal for Rwanda (ICTR) [official website] affirmed most convictions of two accused war criminals Thursday but slightly reduced their respective sentences. Emmanuel Rukundo [JURIST news archive], a priest convicted of genocide, had his sentence reduced from 25 to 23 years of imprisonment [judgment, PDF]. The chamber also reversed Rukundo's conviction for genocide by causing serious mental harm to a Tutsi woman when he sexually assaulted her. Former Rwandan interior minister Callixte Kalimanzira [JURIST news archive], who was convicted of aiding and abetting genocide, had his sentence reduced from 30 to 25 years in prison [judgment, PDF]. The chamber reversed Kalimanzira's other convictions after finding several factual and legal errors in the trial chamber's assessment.

The Trial Chamber originally found that Rukundo, while serving as a military chaplain and captain in the Rwandan Armed Forces, used his position as a priest to influence troops to abduct and kill Tutsi refugees who were hiding in the Saint Leon Seminary during the 1994 Rwandan genocide [HRW Backgrounder]. Kalimanzira's trial began in May 2008 after he surrendered to authorities and pleaded not guilty [JURIST report] in November 2005. The ICTR continues it work to prosecute those most responsible for the Rwandan genocide, in which nearly 800,000 people, primarily Tutsis, were killed. Representatives from the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY) appeared before the UN General Assembly (UNGA) earlier this month to request additional financial resources and institutional support [JURIST report].




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Pakistan high court orders review of judicial appointments
Jay Carmella on October 21, 2010 9:32 AM ET

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[JURIST] The Supreme Court of Pakistan [official website] on Thursday ordered [text, PDF] parliament to review a constitutional amendment that gives the legislature the right to appoint judges. The court expressed concern [BBC report] over the ability of the judiciary to remain independent and out of politics if the legislature is allowed such power. This case came to the Supreme Court as part of several challenges made against the constitutional reforms [text, PDF] parliament passed in April. The court did not extend its ruling to declare the amendment invalid. It wrote:
Judiciaries in all democratic setups are vulnerable to the power of legislatures to create, alter or impair judicial structures including the mode of appointing, removing and remunerating the Judges. In our country...this power is tampered with constitutional guarantees that restrict legislative control over the judiciary. The Parliament was conscious of this scheme, because...it did not amend any other provision on which is built the edifice of judicial independence or the provisions relating to the functions of judiciary. Only the appointment process has been changed and the avowed objective seems to be to strike a balance between judicial independence and democratic accountability/parliamentary oversight.
The amendments passed in April received overwhelming support [NYT report] from parliament. This is in large part because of the limitations [JURIST report] that the reforms put on the power of the president, which had been expanded by former military leaders.

The Pakistani legal system, and specifically the judiciary, has seen a significant amount of controversy in the recent past. Earlier this month, a dispute among the judiciary worsened [JURIST report] as more than 1,300 civil judges resigned in protest over the treatment of judges by lawyers and to express solidarity with Lahore District and Sessions Judge Zawar A Sheikh. Controversy has also existed between the judicial and the executive branches. In February, the Lahore High Court Chief Justice Khawaja Muhammad Sharif's appointment to the Supreme Court was deferred [JURIST report] because President Asif Ali Zardari [official website] had not consulted Chief Justice Iftikhar Muhammad Chaudhry over the appointment as required by Article 177 of the Pakistani Constitution [text]. Tensions between the judicial and executive branches were also evident in January when the court released a detailed judgment in the controversial National Reconciliation Ordinance (NRO) [text] case, striking down an ordinance granting immunity to Zardari and 8,000 other government officials from charges of corruption, embezzlement, money laundering, murder and terrorism between January 1986 and October 1999. A special 17-member panel of the court rendered the original unanimous decision [JURIST report] in December, paving the way for corruption charges to be brought against Zardari.




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Ninth Circuit temporarily reinstates 'Don't Ask Don't Tell'
Jay Carmella on October 21, 2010 9:25 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] issued a temporary stay [order, PDF] on Wednesday preventing the suspension of the US military's "Don't Ask, Don't Tell" (DADT) [10 USC § 654; JURIST news archive] policy. The one-page order granted the government's emergency motion [text, PDF] to stay last week's decision [JURIST report] from the US District Court of the Central District of California [official website] requiring the US military to end enforcement of DADT. The government requested the emergency stay because the "district court's order precludes the administration of an Act of Congress and risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute." As part of the temporary stay, the court requested that the Log Cabin Republicans (LCR) [advocacy website], the conservative gay activist organization that brought the suit [LCR backgrounder], submit their opposition to the order by next week. The court will then decide whether to issue a stay that will last until February when it hears the case. The LCR's attorney called the ruling nothing more than a "minor setback" [press release], and remains confident that the court will not impose a long-term stay.

Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy. Last month, a California district court ruled [JURIST report] that DADT was unconstitutional. Following the decision, the Department of Justice (DOJ) [official website] asked the court [JURIST report] to not enforce the decision, arguing that the ruling was overbroad and that the military should be permitted time to implement a non-judicial solution to the issue. Also last month, a federal judge for the US District for the Western District of Washington [official website] ordered [JURIST report] that a US Air Force officer be reinstated after being previous discharged under DADT. Also in September, the Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the policy. In May, the House of Representatives and the Senate Armed Services Committee (SASC) [official websites] voted to repeal the policy after President Barack Obama and Defense Secretary Robert Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness.




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USDA reaches multi-million dollar settlement with Native American farmers
Erin Bock on October 21, 2010 8:23 AM ET

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[JURIST] The US Department of Agriculture (USDA) and the Department of Justice (DOJ) [official websites] on Wednesday announced a settlement [press release] in a class action discrimination lawsuit filed against the USDA in 1999 by Native American farmers. Under the agreement, the USDA will distribute $680 million to all eligible class members who alleged they were denied low-interest rate loans [CNN report] that were given to white farmers from 1981 to 2007. The settlement will be distributed under two payment "tracks." Farmers in the class who "provide substantial evidence of discrimination" to an adjudicator will receive up to $50,000. Farmers in the class who have "stronger evidence of economic losses" resulting from discriminatory practices can receive up to $250,000. USDA Secretary Tom Vilsack [official profile] expressed his hope that the settlement will provide closure to both sides:
Today's settlement can never undo wrongs that Native Americans may have experienced in past decades, but combined with the actions we at USDA are taking to address such wrongs, the settlement will provide some measure of relief to those alleging discrimination. The Obama Administration is committed to closing the chapter on an unfortunate civil rights history at USDA and working to ensure our customers and employees are treated justly and equally.
The settlement agreement also provides debt forgiveness up to $80 million to claimants with outstanding farm loan debt and places a moratorium on foreclosures of claimants' farms. Additionally, the agreement creates a Federal Advisory Council for Native American farmers and a new ombudsman position within the department to focus on farm program issues related to Native Americans.The money will be distributed through a "judgment fund" maintained by the DOJ and the Department of the Treasury [official website] with the USDA providing up to $20 million to fund the settlement.

This latest settlement comes two months after the US Senate [official website] failed to authorize a $4.6 billion settlement [JURIST report] between the US government and several hundred thousand minority farmers for alleged discrimination. The agreement would have settled discrimination claims filed by African American farmers who missed the filing deadline in a 1999 class action lawsuit, Pigford v. Glickman [BFAA backgrounder]. Last month, the founder and president of the National Black Farmers Association (NBFA) [advocacy website] called on the US Senate to fund the settlement [JURIST report]. The USDA and DOJ in February announced the $1.25 billion settlement [JURIST report] for African American farmers arising from the Pigford case, in which they claimed the USDA practiced racial discrimination in its loan programs.




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Afghanistan officials invalidate 1.3 million votes following fraud investigation
Dwyer Arce on October 21, 2010 7:53 AM ET

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[JURIST] Afghanistan's Independent Election Commission (IEC) [official website] invalidated 1.3 million votes Wednesday due to findings of fraud during last month's parliamentary election [IEC backgrounder]. The ballots, constituting nearly one-fourth of the 5.6 million votes cast nationwide [AP report], were thrown out due to findings by the IEC that the 2,543 polling stations that the votes had been cast at did not follow IEC procedures following an investigation of more than 3,000 polling locations where fraud was alleged to have occurred. The Electoral Complaints Commission (ECC) [official website] is also currently investigating 224 parliamentary candidates [BBC report] who have been accused of involvement in voter fraud. If they are found to have had a direct role in the fraud, they may be disqualified from holding office by the ECC. Additionally, the ECC is investigating more than 4,000 formal complaints. The election was held last month after being postponed by four months [BBC report] due to logistical and security concerns, and was contested by 2,500 candidates competing for the 249 seats in the Wolesi Jirga, the lower house of the Afghan parliament. Preliminary results [results] released by the IEC have shown that around half of incumbent members of parliament were replaced by challengers.

Following the disputed 2009 presidential election [JURIST news archive], the ECC invalidated results from 210 polling stations [JURIST report]. The ECC found clear and convincing evidence of fraud and also ordered the IEC to invalidate a percentage of votes from both candidates. In April, Karzai blamed foreign officials for the extensive irregularities [JURIST report] that occurred during the presidential election. Though admitting that fraud was widespread, Karzai accused UN and EU representatives of attempting to influence vote counts. In November 2009, Karzai was declared the winner of the election [JURIST report] after challenger Abdullah Abdullah [BBC profile] withdrew from the runoff election due to his belief that a free and fair vote was impossible.




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US soldier held in fatal shooting of Afghanistan detainee
Sarah Miley on October 20, 2010 2:13 PM ET

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[JURIST] A US soldier is currently being held in connection with the fatal shooting on Sunday of a Taliban detainee, who was found dead in a holding cell in Kandahar province, according to US Forces in Afghanistan [JURIST news archives]. The US Army Criminal Investigation Command (CID) [official website] and Afghanistan officials have launched individual investigations [WSJ report] into the death. Officials stated that detainee, Mullah Muhibullah, was a senior leader of the Taliban network in Arghandab district in Kandahar province. Afghan officials stated that Mullah was shot after US officials removed four or five other detainees from the holding cell. Soldiers heard the gunshot while transferring the other detainees and found Mullah dead when the finally reached the cell. Arghandab is currently the focus of a major US-led military offensive to dislodge the Taliban from its strategic stronghold in Kandahar province. Mullah was detained after being arrested during an Taliban operation on Saturday night.

Civilian deaths caused by US soldiers have also become an issue in Afghanistan. Earlier this week, the US Army announced that a US soldier accused of killing three Afghan civilians in an unprovoked rogue assault earlier this year will face a court-martial [JURIST reports] for premeditated murder. Specialist Jeremy Morlock of Joint Base Lewis McChord [official website] is one of five soldiers accused of murdering the civilians in separate incidents between January and May in Kandahar province. The Army announced in May that its Criminal Investigation Command was opening an investigation [JURIST report] into the civilian deaths in Kandahar. The charges are the latest in a number of incidents involving US soldiers in both Iraq and Afghanistan.




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UN rights expert calls for increased measures to combat torture
Sarah Miley on October 20, 2010 1:08 PM ET

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[JURIST] Chairperson of the UN Committee Against Torture (CAT) [official website] Claudio Grossman [official profile] on Tuesday urged nations to "reconnect with the values" of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [texts and materials] and increase efforts to combat torture [press release]. Grossman stated that the need for heightened measures is particularly important in emergency situations where interrogators have little time to gain information from captives. He also emphasized the need for strict compliance with the committee's observations and decisions, which include the adoption of preventative measures and the ability of torture victims to collect damages. Grossman claimed that countries have grown increasingly apathetic to the use of torture [JURIST news archive] as an interrogation technique:
This is the problem with torture: it can become natural. There are situations where everyone goes crazy and the normal values of human beings stand on their heads. It is very important to fight those situations. ... We need to react very strongly against this attempt to get accustomed to torture. ... This nonsense of ticking bombs, extraordinary situations as an excuse for torture. I'm surprised that people still talk about that. It happens less now than some years ago, and I think we need to build momentum against it. ... We need to act so that we elevate education of people so that they go beyond the passive reactions when there are serious crimes committed.
In response to a question about countries like the US and China, which had ratified the Convention but were accused of torture, he stated that reports of torture have been found in all countries, but noted the difference between isolated incidents of torture and torture as a policy.

In June, UN High Commissioner for Human Rights Navi Pillay [official profile] warned people and nations [JURIST report] that practice torture that they cannot escape the reach of justice. Commemorating the International Day in Support of Victims of Torture, Pillay noted that 45 UN member states have not ratified the Convention and that many states party continue to practice torture. Pillay also expressed concern over democracies that generally abide by the rule of law but have maintained amnesties that prevent torturers from being brought to justice. Earlier that month, UN rights experts called on the UN Human Rights Council [official website] to investigate findings [JURIST report] from a report [text, PDF; JURIST report] released earlier this year detailing the secret imprisonment of terrorism [JURIST news archives] suspects by 66 countries, including the US, Ethiopia, Romania and Pakistan.




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UAE domestic violence ruling a violation of treaty obligations: HRW
LaToya Sawyer on October 20, 2010 12:28 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Tuesday condemned [press release] a ruling by the UAE Federal Supreme Court affirming a "husband['s] right to discipline his wife" as a violation of UAE treaty obligations. The ruling upheld a man's right to discipline his children and wife as long as he leaves no physical marks. The case involved a man who was fined for beating his wife and adult daughter. The court held that the man's conviction was appropriate because it exceeded the limits of discipline by leaving physical marks of the abuse on his wife and because only minor children can be disciplined under UAE law. According to HRW, this violates the rights of women and children under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC) [texts], which have both been ratified by the UAE. HRW researcher Nadya Khalife stated:
This ruling ... is evidence that the authorities consider violence against women and children to be completely acceptable. Domestic violence should never be tolerated under any circumstances. These provisions are blatantly demeaning to women and pose serious risks to their well-being. The ... ruling lets stand a law that is degrading, discriminatory, and outright dangerous for women and children. The UAE needs to come to grips with reality of domestic violence, repeal all discriminatory provisions sanctioning violence against women and children, enact laws that criminalize such behavior, and provide appropriate services to victims.
Humaid al-Muhairi, a UAE Justice Ministry official, responded by emphasizing that the government does not condone domestic violence [WP report], and, although not a widespread problem in the UAE, it still poses a great concern for government officials.

In the last few decades, the UAE has experienced dramatic changes with the influx of many foreigners whose population has recently superseded the native population, challenging many legal traditions influenced by Islamic law. The changes, consistent with those many countries of the Middle East, have furthered human rights [JURIST report] in the areas of employment, education and political participation, especially concerning women, according to a Freedom House [advocacy website] report released in March. Despite this, the report noted that women in these countries still face many obstacles in achieving equality, and, despite the progress, women in the region still have little recourse for domestic violence and face discrimination in employment, education and politics.




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UK Supreme Court recognizes pre-nuptial agreement in landmark ruling
Andrea Bottorff on October 20, 2010 12:23 PM ET

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[JURIST] The UK Supreme Court [official website] set new precedent Wednesday by ruling [judgment, PDF] in favor of recognizing a pre-nuptial agreement during divorce proceedings. The decision affirmed an appellate court decision [judgment, PDF; JURIST report] that honored a pre-nuptial agreement between German heiress Katrin Radmacher and her ex-husband, which was intended to shield her assets. The Supreme Court made no distinction between the timing of marriage agreements, stating: "If parties who have made such an agreement, whether ante-nuptial or post-nuptial, then decide to live apart, we can see no reason why they should not be entitled to enforce their agreement." However, the court did emphasize the importance of courts reviewing the facts of each case to ensure that the agreement was fair and made freely by both parties. Critics of the ruling argue that the court went beyond its role of interpreting laws [Telegraph report] by creating a new law. UK divorce courts have traditionally not taken [backgrounder] pre-nuptial agreements into account when dividing marital assets. Instead, the courts have assessed the financial needs of the couple and any dependents in an effort to protect the financially weaker partner. The Supreme Court ruling suggests that recognition of pre-nuptial contracts is in line with the British approach to contracts generally.

The ruling brings UK law in line with other European countries' treatment of pre-nuptial agreements. In March, the European Commission (EC) [official website] proposed reforms [JURIST report] to simplify and clarify international divorce laws. Under the proposal, married couples from different EU countries could choose the country of the divorce, and the various courts would use a common formula to decide which country's law applies when a couple disagrees. The measure, supported by 10 countries [BBC report], was first debated [JURIST report] in January amid concerns [press release] about potential unfairness in cross-border divorces, since the law across the member countries varied significantly.




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India introduces National Green Tribunal for environmental cases
Andrea Bottorff on October 20, 2010 11:11 AM ET

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[JURIST] The Indian government introduced a new court system Tuesday that will handle only environmental litigation. The National Green Tribunal, which was established by the Indian Parliament [official website] in June under the National Green Tribunal Act [text, PDF], will consist of a chairperson, and a maximum of 20 judicial officers, as well as 20 environmental experts. Environmental Minister Jairam Ramesh [official website] said that the previous National Environment Appellate Authority [official website] is dissolved and that the new tribunal will address 5,000 environmental cases [India Post report] currently filed in the country. India has been active in emphasizing the importance of environmental issues at a time of rapid business growth, with the government opposing business projects that would harm the environment [AFP report]. In addition, India is a participant in the Convention on Biodiversity [official website], offering its National Green Tribunal as one of several policies that promotes environmental conservation [report text, PDF]. Besides India, only Australia and New Zealand have courts focused on environmental cases.

India has addressed other environmental issues this year. In July, Ramesh apologized [JURIST report] for the government's role in the 2008 disposal of toxic waste from the 1984 Bhopal chemical spill disaster [BBC backgrounder], which he said was done secretly and in an improper manner. Nearly 350 tons of waste were collected following the disaster in which nearly 3,800 people were killed when toxic gas was accidentally released in the middle of the night by a chemical plant owned by a Union Carbide [corporate website] subsidiary company. Upwards of 15,000 others later died from exposure to the gas, and 50,000 were left permanently disabled. The government reportedly removed 40 tons of the waste [AFP report] to Pithampur for disposal, but failed to consider the environmental impact or notify the public about the disposal. In June, a panel of Indian cabinet ministers announced the government would begin the process of cleaning up the disaster site [JURIST report] and would consider increasing compensation for victims of the disaster. The same month, an Indian court handed down the first convictions [JURIST report] related to the toxic spill, sentencing seven men to two years in prison as well as fines for their roles in the disaster.




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Federal judge denies Obama administration's attempt to reinstate 'Don't Ask Don't Tell'
Ann Riley on October 20, 2010 10:09 AM ET

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[JURIST] Judge Virginia Phillips of the US District Court of the Central District of California [official website] on Tuesday denied [order] the Obama administration's request to stay her order requiring the US military to end enforcement of its controversial "Don't Ask, Don't Tell" (DADT) [10 USC § 654; JURIST news archive] policy. Two days after Phillips issued the permanent injunction [order, PDF; JURIST report], the federal government filled an application for an emergency stay [stay application, PDF; JURIST report], arguing that, while the administration and key military officials favor the repeal of DADT, "a precipitous change in policy will immediately and significantly impair the Department's current efforts to devise an orderly end to DADT." Phillips found that the government's application for an emergency stay did not meet its burden in showing the public interest:
[T]he evidence at trial showed that the Don't Ask, Don't Tell Act harms military readiness and unit cohesion, and irreparably injures servicemembers by violating their fundamental rights. The public has an interest in military readiness, unit cohesion, and the preservation of fundamental constitutional rights. While Defendants' interests in preventing the status quo and enforcing its laws are important, these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights. The evidence Defendants submitted with this Application has not demonstrated otherwise.
The government has already filed an appeal [text, PDF] asking the Ninth Circuit to stay Phillips' ruling.

Also on Tuesday, the US Department of Defense (DOD) [official website] announced that openly gay men and women are now allowed to sign up [JURIST report] to serve in the in US armed forces. The DOD issued a directive on Friday to all recruiting stations pursuant to which all openly gay men and women may serve, although their status could change if the district court decision is overruled. Last month, Philips declared the policy unconstitutional [opinion, PDF; JURIST report]. Following the ruling, the Department of Justice (DOJ) [official website] asked the court not to enforce its decision [JURIST report], arguing that the ruling was overbroad and that the military should be permitted time to implement a non-judicial solution to the issue. Since its enactment in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of DADT.




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Federal judge denies Afghan Guantanamo detainee habeas petition
Ann Riley on October 20, 2010 9:51 AM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] on Tuesday denied [order, PDF] the habeas corpus petition of Afghan Guantanamo Bay [JURIST news archive] detainee Obaidullah [DOD materials]. While Obaidullah has denied the charges against him, Judge Richard Leon noted that he has changed his story several times. The court cited evidence presented by the US government showing that Obaidullah hid his property in mine shells, had possession of a notebook containing instructions and wiring diagrams of IEDs, and stored an automobile with Taliban propaganda inside that was used to transport bomb cell members to a local hospital. Leon denied Obaidullah's petition for release, stating:
[C]ombining all of this evidence and corroborated intelligence, the mosaic that emerges unmistakably supports the conclusion that it is more likely than not that petitioner Obaydullah was in fact a member of an al Qaeda bomb cell committed to the destruction of US and Allied forces. As such, he is lawfully detainable under the [Authorization for Use of Military Force] (AUMF) [text, PDF].
Obaidullah was initially charged [JURIST report] by the military in 2008 with hiding and storing anti-tank mines to be deployed against US forces in Afghanistan. He has been held at Guantanamo since 2002.

In January, the US Department of Justice (DOJ) [official website] decided on a military prosecution [JURIST report] for Obaidullah. The case was passed over to the Pentagon, which must now decide whether to formally try Obaidullah in a military commission [JURIST news archive]. Obaidullah is the sixth Guantanamo detainee to have his case referred for military trial since US president Barack Obama ordered the closing [JURIST report] of the facility and a review of all detainees' cases in January 2009. In November 2009, the DOJ designated five other cases for military trials, including that of Canadian detainee Omar Khadr [JURIST report]. Also in November, Holder announced [JURIST report] that five accused 9/11 [JURIST news archive] conspirators would be tried in US federal court.




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France high court rules terror suspects have right to lawyer
Sarah Paulsworth on October 20, 2010 8:45 AM ET

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[JURIST] The French Court of Cassation [official website, in French] ruled [judgment text, in French; press release, in French] Tuesday that all persons in custody of French law enforcement, including terrorism suspects, are entitled to consult with lawyers from the outset of criminal proceedings. Sitting en banc, the court ruled that France's current rules regarding custody contravene the Article 6 right to a fair trial of the European Convention on Human Rights [text, PDF]. Law enforcement officials must now comport with three new principles when dealing with people in custody: the right to a lawyer from the outset of criminal proceeding except for a compelling reason, the obligation to inform the person in custody of their right to remain silent and the right to assistance of counsel in interrogations. This decision expands on a July 30 decision [text, in French] issued by France's Constitutional Court [official website, in French] according to which all persons in custody are entitled to a lawyer from the outset except for people suspected of engaging in terrorism, drug trafficking or organized crime. In the past, French police were interrogating terrorism suspects [WP report] for as long as 72 hours without a lawyer and threatening them to elicit information and gain their cooperation. France's Minister of Justice Michele Alliot-Marie [official profile, in French] reacted [statement, in French] to the court's decision, saying "the government will of course take into account these decisions and the complete text of the bill by amendment."

In addition to France, several other countries have been altering their policies regarding custodial interrogations. Earlier this month, the Supreme Court of Canada [official website] ruled [judgment text] that Canadians do not have the right to have counsel [JURIST report] present during custodial interrogations. In May, US Attorney General Eric Holder [official profile] announced that the Obama administration plans to ask Congress to enact legislation allowing interrogators [JURIST report] to question terror suspects for a longer period of time than currently allowed before informing them of their constitutional rights to remain silent and be represented by an attorney. Earlier that month, a group of US lawmakers introduced a bill that would strip US citizenship rights [JURIST report], including the right to a lawyer, from those suspected of engaging in terrorism. US lawmakers also introduced a bill in March that would require the military interrogation and trial [JURIST report] of those taken into US custody who are suspected of links to terrorism. The Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 was introduced by Senators John McCain (R-AZ) and Joe Lieberman (I-CT) [official websites] and would require that all people detained by US authorities, both domestically and internationally, who are suspected of engaging in hostilities against the US or its coalition partners or of providing material support for those who do, would be placed in military custody for interrogation and a final status determination made by the president, attorney general and defense secretary.




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DOD orders military recruiters to accept openly gay applicants in light of court ruling
Sarah Paulsworth on October 20, 2010 7:20 AM ET

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[JURIST] The US Department of Defense (DOD) [official website] announced Tuesday that openly gay men and women are now allowed to sign up [press release] to serve in the in US armed forces, following a recent court order striking down the controversial "Don't Ask Don't Tell" (DADT) policy [10 USC § 654; JURIST news archive]. The DOD issued a directive on Friday to all recruiting stations pursuant to which all openly gay men and women may serve, although their status could change if the district court decision is overruled. "Recruiters are reminded to set the applicants' expectations by informing them that a reversal in the court's decision of the 'Don't Ask, Don't Tell' law/policy may occur," DOD spokeswoman Cynthia Smith said. Last week, Judge Virginia Phillips of the US District Court of the Central District of California [official website] ordered [order, PDF] the US military to end enforcement [JURIST report] of DADT. The order came little more than a month after the court declared the policy unconstitutional [opinion, PDF; JURIST report]. On Thursday, the Obama administration asked [stay application, PDF] Phillips to stay her order [order, PDF] requiring the US military to end enforcement of DADT.

Since its enactment in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of DADT. Last month, a federal judge for the US District for the Western District of Washington [official website] ordered [JURIST report] that a US Air Force officer be reinstated after being previous discharged under DADT. Also in September, the Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the policy. In May, the House of Representatives [official website] and the Senate Armed Services Committee voted to repeal the policy after President Barack Obama and Defense Secretary Robert Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness. Also in May, A CNN poll [results, PDF] released found that 78 percent of American adults believe that homosexuals should be able to serve openly in the military. In March, Gates announced changes to the enforcement [JURIST report] of the policy to make it more difficult to expel openly gay service members from the military.




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Quebec lawmakers approve controversial language bill
Daniel Richey on October 19, 2010 4:52 PM ET

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[JURIST] The Quebec National Assembly [official website, in French] on Tuesday adopted Bill 115 [materials], a controversial measure modifying English-language speakers' access to English public schools in the province. The new provisions, which are expected to gain royal assent next week, will establish a vesting system whereby children of English-speaking citizens can accrue points toward legal entitlement to access to English public schools through early private education in English language schools and other means. The legislation also increases government fines on private institutions established to circumvent the principle instruction in French required by section 72 of the Charter of the French Langauge [text]. The bill, which passed on a 61-54 vote after the center-right Quebec Liberal [party website, in French] government invoked closure on debate, was enacted in response to the invalidation [JURIST report] of Bill 104 [text], which the Supreme Court of Canada [official website] declared unconstitutional for violating section 23 of the Canadian Charter of Rights and Freedoms [official website]. Critics of Bill 115 denounce the points system for its general complexity and the uncertainty generated by the degree of enforcement discretion it vests government bureaucrats, saying that it will inevitably result in another lawsuit similar to the one that invalidated Bill 104. Proponents of the bill maintain that it represents a compromise that will protect the primacy of the French language without implicating the same constitutional issues its predecessor did. Leaders of the opposition Parti Quebecois [party website, in French] said [press release, in French] that the new system "[l]egalizes ... buying the right to go to English schools" by allowing parents to vest their children's eligibility by sending them to unsubsidized private English schools for three years. They have vowed to repeal the legislation should they regain the majority.

Bill 115 replaces Bill 103 [materials], which was introduced this summer [JURIST report] to reduce the number of students attending English language schools in the wake of Bill 104's invalidation. Bill 104 was designed to plug a loophole in the language rules set forth under Bill 101 [text] that allowed parents to enroll otherwise ineligible students in English-language public schools by first sending them to private English school for a year. The Supreme Court of Canada unanimously upheld [JURIST report] Bill 101 itself, which requires French-speaking parents to send their children to francophone schools. Under the bill, parents must have received the majority of their own schooling in English to be able to have their children educated in that language. Eight families had sought to prove that Bill 101 was discriminatory in precluding their children from receiving an education in English. The court found that members of the linguistic majority have no constitutional right to an education in English, the minority language in Quebec.




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Canada privacy commissioner finds Google breached privacy laws
Julia Zebley on October 19, 2010 2:44 PM ET

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[JURIST] Canadian Privacy Commissioner Jennifer Stoddart [official website] announced Tuesday that Google [corporate website; JURIST news archive] was in violation of the Personal Information Protection and Electronic Documents Act [text, PDF] (PIPEDA) when it unintentionally captured personal information while taking pictures for its Google Street View feature [website]. A preliminary letter of findings [text] explained that Google specifically violated principles 4.1 – 4.4 of PIPEDA, which details a company's liability when employee error results in private data collection and states that the company must provide the purpose for the data collection, that individuals must consent to the data collection and that data collection must be limited to what is necessary for the organization. Stoddart revealed that Google collected [press release] complete e-mails, e-mail addresses, personal medical information, usernames and passwords, and names with corresponding telephone numbers and addresses. Google alleged that the breach was due to carelessness. Stoddart agreed and recommended that Google implement greater controls, administer privacy training and delete the data they have collected from Canadians. Google has yet to make an official comment on the finding, although the preliminary letter of findings indicated the company's cooperation:
Google informed our Office that engineering and product teams are accountable for complying with Google's privacy policies and principles. Google then stated that it is working towards improving its code-and-product review processes, as well as accountability mechanisms, for engineering and product management personnel in order to improve their sensitivity to privacy issues at all stages of product and code development. A legal team is working with engineering directors to ensure a comprehensive review of codes for any privacy issues. Google believes that the review of its policies and procedures that it has undertaken will ensure no recurrences. Google stated that it will keep this Office informed as Google completes its review.
Canada launched the investigation in June [JURIST report]. The commission has given Google until February 1 to carry out its recommendations, although it did not address what actions would be taken if Google did not comply.

Google has been under scrutiny from several other nations in relation to its data collection policies. Australia's privacy commissioner reached the same conclusion as Canada's, declaring Google in violation of national privacy laws [JURIST report] in July. Both the UK and Connecticut launched investigations against the company in June for collecting image data over unsecured wireless networks for the Google Street View feature [JURIST reports]. Google testified to the US House of Representatives that any privacy violations were lawful mistakes [JURIST report]. Belgium, the Czech Republic, France, Germany, Italy, Spain and Switzerland have also asked Google to retain data collected in those respective nations. Canada has pursued other outlets for violation of privacy laws related to data-sharing, including launching an investigation [JURIST report] of Facebook [official website] in January and finding the Society for Worldwide Interbank Financial Telecommunication (SWIFT) [official website] not in violation of privacy laws [JURIST report] when sharing financial information with the US after 9/11.




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Kyrgyzstan lawyers demand protection in ethnic violence trials
Daniel Richey on October 19, 2010 2:34 PM ET

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[JURIST] A group of Kyrgyz lawyers is refusing to proceed with defending of ethnic Uzbeks in connection with eruptions of ethnic violence in June unless the government provides increased protections for them and their families. Group representatives cite multiple instances of violence against defenders of those accused of stoking ethnic violence [Guardian backgrounder; JURIST news archive] surrounding the overthrow of president Kurmanbek Bakiyev [BBC profile] and the ratification of a new constitution in June [JURIST report]. The lawyers say that aggrieved family members of those who died in the skirmishes often mistakenly believe that defendants, most of whom are Uzbek minorities, have confessed to crimes when there is suspicion that corrupt Kyrgyz majority-dominated courts and police may be relying on confessions elicited through the use of torture [UN report]. One such incident earlier this month caught the attention of Human Rights Watch [advocacy website] when an angry mob attacked a 50-year-old suspect and three of his relatives [HRW report] in the parking lot of a military courthouse as he arrived to stand trial. At an October 15 press conference in the southern city of Osh, the lawyers presented a petition [Ferghana report] demanding better security from local authorities signed by 161 lawyers and announced plans to picket the nation's Supreme Court on October 21.

A Kyrgyz court handed down the first convictions stemming from the violence last month when the Nooken District Court [GolbaLex backgrounder] sentenced five men to life terms [JURIST report] on charges of murder, fomenting ethnic hatred, instigating violence and organizing public unrest. Among them was prominent human rights activist Azimjan Askarov. The convictions were later described as politically motivated [Reuters report]. In July, Kyrgyz authorities announced the opening of more than 1,000 criminal cases [JURIST report] stemming from the violence and that 106 individuals had been detained, with 97 in custody. Also in July, Kyrgyz President Roza Otunbayeva [Telegraph profile] established a commission [JURIST report] to investigate ethnic violence against the country's Uzbek minority. The commission is expected to consult with government and international experts and present its findings on the causes and repercussions of the violence this year.




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ICC allows trial of Congo rebel leader Bemba to proceed
Sarah Posner on October 19, 2010 1:59 PM ET

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[JURIST] The International Criminal Court (ICC) [official website] ruled [judgment, PDF; press release] Tuesday that the war crimes trial of former Democratic Republic of Congo (DRC) [BBC backgrounder] vice president Jean-Pierre Bemba [ICC materials; JURIST news archive] can proceed. Appeals chamber Judge Anita Usacka affirmed the ruling of the trial chamber and dismissed Bemba's appeal challenging the admissibility of the case before the ICC. The court found that Bemba did not meet the minimum requirements for consideration of the merits for his appeal. In the judgment, Usacka explained that:
Mr Bemba merely states that the alleged error of the Trial Chamber "significantly affected the fair and expeditious conduct of current proceedings." The rest of his submission in relation to this ground of appeal concerns the importance the Trial Chamber previously accorded to this issue and the difficulties the Defence team faced which prevented it from submitting this filing sooner, but not that the alleged error materially affected the outcome of the impugned decision.
The court also concluded that the ICC's jurisdiction over the case does not violate a Rome Statute [text, PDF] provision that prohibits the ICC from hearing cases after a country has decided not to prosecute the person concerned. The ICC held that the order issued by the Central African Republic (CAR) [DOS backgrounder] did not constitute a decision not to prosecute. Bemba faces two counts of crimes against humanity and three counts of war crimes. The ICC has not set a trial date.

In April, defense lawyers argued before the court that charges against Bemba should be dropped [JURIST report] because he had been denied due process and the charges are illegal. In addition, defense lawyers claimed that Bemba lacked the financial resources [JURIST report] necessary to ensure a fair trial. The ICC ordered Bemba to stand trial in July 2009 for alleged war crimes and crimes against humanity [JURIST report] committed between October 2002 and May 2003 while he was a military leader of the Congo Liberation Movement (MLC). Bemba was arrested [JURIST report] in Belgium in May 2008 after the ICC issued a sealed warrant for his arrest. The charges in the arrest warrant included rape, torture, outrages upon personal dignity and pillaging.




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EU suspends legal complaint regarding France Roma expulsion
Maureen Cosgrove on October 19, 2010 12:50 PM ET

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[JURIST] The European Commission (EC) [official website] announced Tuesday that it is temporarily postponing the human rights complaint [text, PDF] filed against France over the country's failure to respect the EU's Free Movement Directive of 2004 [Directive 2004/38/EC materials] in its expulsion of Roma migrants [JURIST news archive]. In September, the EC asked the French government to enact legislation guaranteeing that procedural safeguards would be put in place in order to protect EU citizens against "arbitrary, discriminatory or disproportionate decisions." The EU Commissioner for Justice, Fundamental Rights and Citizenship Viviane Reding [official profile] announced that France had formally responded to the EU request with documentation that included a draft of possible legislation conforming with the directive and a timetable for enacting the legislation. According to Reding, the proposed legislation would require the French government to provide migrants with a written expulsion notice before they are removed from the country. The legislation would also allow migrants the possibility of an appeal. In her statement, Reding urged economic and social integration of the Roma in all EU member states:
It is now for all policymakers, national as well as European, to show that the commitment to this largest European minority is not just a one-off matter. But that we now move on to action and results, on the basis of our European values and the fundamental right of non-discrimination.
Additionally, Reding assured that the EC would continue to monitor and facilitate the implementation of France's proposed legislation.

Reding has been critical [JURIST report] of Roma deportation practices in France. She threatened legal action [text] against France in September claiming that France's discrimination and systematic deportation of the Roma was a violation of EU law. France has been at the center of the controversy concerning the deportation of Roma migrants in Europe. In July, French President Nicolas Sarkozy [official website, in French] ordered measures [press release, in French] against illegal Roma communities in France and announced new legislation to facilitate deportation [JURIST report]. The UN Committee on the Elimination of Racial Discrimination (CERD) [official website] and the EU Parliamentary Group of the Progressive Alliance of Socialists & Democrats have expressed concern over the discrimination faced by Roma migrants in numerous European countries and over the French expulsion policies [JURIST reports].




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Federal appeals court upholds Illinois school 'moment of silence' law
Eryn Correa on October 19, 2010 11:38 AM ET

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[JURIST] The US Court of Appeals for the Seventh Circuit [official website] on Friday upheld [opinion, PDF] the constitutionality of an Illinois statute mandating a daily moment of silence in public schools. The court rejected arguments that the Illinois Reflection and Silent Prayer Act [text] violated the Establishment Clause of the First Amendment [text] by encouraging prayer in public schools, reversing an April 2009 ruling [JURIST report] by the US District Court for the Northern District of Illinois [official website]. Judge Daniel Manion relied on the Lemon Test [text] in determining that the Illinois statute had a secular legislative purpose that neither advanced or inhibited religion:
The Illinois legislature had a secular purpose in passing Section 1, namely mandating a period of silence to calm school children before the start of their day. There is no evidence that the secular purpose is a sham and that Illinois's true purpose was to promote prayer. And there is nothing impermissible about clarifying that students may pray during that time period. Section 1 also does not advance or inhibit religion (or specific religions that practice momentary silent prayer), but rather mandates only a period of silence. There is also no state entanglement with religion. Therefore, Section 1 satisfies the Lemon test and Sherman's First Amendment challenge fails. Sherman's vagueness challenge also fails because Section 1 is not unconstitutionally vague in all of its operations.
The challenge was initially brought by Dawn Sherman and her father, Rob Sherman in 2007. Following Friday's decision, Rob Sherman warned on his website [advocacy website] that the "war" to overturn the statute will continue.

This case is the most recent development in the ongoing debate concerning free speech and the Establishment Clause in public schools. Last week, the US Court of Appeals for the Fifth Circuit ruled [JURIST report] that the words "one state under God" in the Texas Pledge of Allegiance [text; JURIST news archive] do not violate the Constitution. Earlier this year, the US Court of Appeals for the Ninth Circuit ruled [JURIST post] that a teacher-led recitation of the national Pledge of Allegiance in public schools does not violate the constitution. In 2008, the US Court of Appeals for the Eleventh Circuit upheld [JURIST report] the constitutionality of requiring students through grade 12 to obtain parental permission before being excused from the Pledge of Allegiance. In 2005, a federal judge in Sacramento upheld the unconstitutionality of the recitation of the Pledge of Allegiance which included the words 'under God' [JURIST report].




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City of San Francisco lawyers argue Proposition 8 irrational under California law
Jay Carmella on October 19, 2010 10:36 AM ET

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[JURIST] Lawyers representing the city of San Francisco submitted a brief [text, PDF] on Monday arguing that California's ban on same-sex marriages [JURIST news archive], better known as Proposition 8 [text; JURIST news archive], is irrational under California state law. The brief was submitted to the US Court of Appeals for the Ninth Circuit [official website] both in support of the district court's finding in Perry v. Schwarzenegger [case materials; JURIST report] that Proposition 8 violates the US Constitution [text] and to present evidence that "Proposition 8 is not rationally related to legitimate government interests in light of California's particular constitutional and statutory guarantees." The brief also argues [KTVU News report] that gay and lesbian parents are treated the same as heterosexual parents under California law, which undermines the justification for the statute provided by the opposition. It states:
Proponents urge "responsible procreation" as the justification for Proposition 8. But the State "may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational..." Because Proposition 8 did not alter California's laws concerning having and rearing children, Proponents' asserted justification is too disconnected with Proposition 8 to be credited, and this Court must look elsewhere to find the basis for Proposition 8.
Proponents of Proposition 8 have until November 1 to file a reply to the city's brief. The court is scheduled to hear the case during the second week of December.

Last month, officials in Imperial County [official website] submitted a brief [JURIST report] appealing the federal court's decision finding Proposition 8 unconstitutional. The appeal came just days after supporters of Proposition 8 filed a brief [JURIST report] seeking standing in order to file the appeal. Earlier in the month, a judge for the California Court of Appeal, 3rd Appellate District [official website] ruled [JURIST report] that neither Governor Arnold Schwarzenegger or Attorney General Jerry Brown [official websites] is required to appeal the decision of the district court. In August, a three-judge panel for the Ninth Circuit issued a stay [JURIST report] of district court's decision, pending appeal. Schwarzenegger, Brown and others filed motions [JURIST report] opposing the stay request. Schwarzenegger and Brown were originally defendants in the lawsuit, and their refusal to oppose the stay left defendant-intervenors Protect Marriage [advocacy website] and other groups to defend the law. The remaining defendant-intervenors have indicated they will, if necessary, appeal the case to the US Supreme Court.




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Four men convicted for New York synagogue terror plot
Carrie Schimizzi on October 19, 2010 9:07 AM ET

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[JURIST] A federal jury on Monday convicted [FBI press release] four men for planting explosive devices outside New York City synagogues and plotting to shoot down military planes at an Air National Guard base in New York. James Cromitie [NYT profile] and three co-defendants were found guilty of conspiracy to use weapons of mass destruction, conspiracy to kill officers and employees of the US, and other related charges [criminal complaint, PDF] for their participation in a terror plot sting by the FBI [official website]. Defense counsel had argued the defendants were entrapped by the FBI [AP report], which paid Pakistani immigrant Shahed Hussain to act as an undercover informant and encouraged the men to carry through with the plot. The defendants were arrested [NYT report] in May 2009 after they planted fake bombs, supplied by the FBI, outside of a synagogue and Jewish community center in the Bronx. US Attorney for the Southern District of New York Preet Bahara said the convictions made the US safer:
Homegrown terrorism is a serious threat, and today's convictions affirm our commitment to do everything we can to protect against it. The defendants in this case agreed to plant bombs and use missiles they thought were very real weapons of terrorism. We are safer today as a result of these convictions.
Sentencing has been scheduled for March 24 and all four men face a maximum sentence of life in prison. Attorneys for the defendants say they will appeal the convictions.

The case highlighted the continuing threats by homegrown domestic terrorism [JURIST news archive] in the US. In May, lawmakers introduced a bill [JURIST report] that, if passed, would strip US citizenship rights from those suspected of engaging in terrorism. In March, Senators John McCain (R-AZ) and Joseph Lieberman (I-CT) proposed a law [JURIST report] that would require terror suspects to be stripped of their Miranda rights and to face military interrogation and trial. Amos Guiora of the University of Utah College of Law criticized the proposed legislation [JURIST op-ed], claiming its impact "would be a fundamental miscarriage of justice."




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Iran to shut down media reporting on opposition movement
Zach Zagger on October 19, 2010 8:47 AM ET

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[JURIST] The Iranian Culture Ministry [official website, in Persian] announced Monday that it will shut down media outlets that publish reports on opposition leaders. The government warned media outlets [CP report] against reports on opposition leaders, marking the government's first public acknowledgment of such censorship. There has been no mainstream media coverage of the two most prominent opposition presidential candidates, Mir Hossein Mousavi and Mahdi Karroubi, in months. Iran has already shut down most pro-reform publications and blocked the Internet sites in an attempt to silence criticism of last year's disputed presidential election [JURIST news archive], in which President Mahmoud Ahmadinejad was re-elected. The Culture Ministry also expressed that it is attempting to stop a perceived plot, aided by the West, to overturn the current regime.

In recent months, Iran has prosecuted members of the media for crimes against the state. Last month, Iranian blogger Hossein Derakhshan, known for popularizing blogs in Iran was sentenced to 19.5 years imprisonment [JURIST report] for cooperating with hostile countries, spreading propaganda against the ruling establishment, promoting counterrevolutionary groups and maintaining obscene websites. In addition to serving his prison sentence, Hossein Derakhshan faces a five-year ban from membership in political parties and fines totaling nearly USD $45,000. Also last month, Branch 26 of the Revolutionary Court of Iran [GlobaLex backgrounder] sentenced [JURIST report] Shiva Nazar Ahari, a journalist arrested following the 2009 presidential election, to six years in prison. During the Tehran trial, conducted by head judge Pyrabasy, Ahari faced charges of warring against God [CHRR report], known in Islamic law as Moharebeh, conspiring to commit a crime, propaganda against the revolution and disturbing the public order, violating several articles of the Islamic Penal Code of Iran [Mehr backgrounder].




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Zimbabwe high court dismisses Finance Minister's illegal arrest suit
Matt Glenn on October 18, 2010 2:06 PM ET

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[JURIST] The Zimbabwe Supreme Court announced Monday that it would refuse to hear a civil rights case brought by Finance Minister Tendai Biti [official profile] over his 2008 arrest [JURIST report] on treason charges because he did not file an appeal in time. Biti, who is secretary general of the Movement for Democratic Change (MDC) [party website], was seeking a ruling that police violated his constitutional rights when they arrested him for treason and communicating falsehoods detrimental to the state based, in part, on a document outlining plans to topple Robert Mugabe's government that Biti denies writing. Judge Vernanda Ziyamba said that the court would not hear the case [Zimbabwe Metro report] because Biti waited more than the statutory maximum of 15 days to file an appeal. A lawyer for Biti said that Biti plans to appeal the court's decision not to hear the case.

Biti was never convicted, and the charges against him were dropped [NYT report] in 2009 as part of a power-sharing agreement [JURIST report] between the MDC, headed by Morgan Tsvangirai [BBC profile; JURIST news archive], and Mugabe's ZANU-PF party. Zimbabwe's 2008 elections [JURIST news archive] were marred by allegations of fraud [JURIST report] and government ballot rigging. Zimbabwe police arrested several members of the MDC prior to the election, allegedly to prevent the MDC party from participating in the election, and the UN criticized both parties for rights abuses [JURIST reports] leading up to the election. A period of uncertainty also followed the elections, after the ruling government initially refused to release election results, and then announced that a run-off election was needed [JURIST reports] because Tsvangirai had won a slim majority of the votes, but not enough to claim outright victory. Mugabe ran unopposed in the run-off election after Tsvangirai withdrew his candidacy and sought refuge at the Dutch embassy. The results of the run-off election were condemned by the international community [JURIST report] as being neither transparent nor impartial, and the government of Mugabe has been called illegitimate.




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Vietnam official sentenced to life in prison on corruption charges
Ann Riley on October 18, 2010 1:43 PM ET

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[JURIST] A Vietnamese court on Monday sentenced former deputy director of the Ministry of Transportation [official website, in Vietnamese] Huynh Ngoc Si to life in prison for accepting bribes [VnExpress report, in Vietnamese] while managing a Japanese-funded road project, according to state news agencies. Si was convicted of receiving USD $262,000 from the Japanese company Pacific Consultants International (PCI) [corporate website] in exchange for negotiating the East-West Highway project in Ho Chi Minh City and granting the winning bid to PCI. PCI allegedly agreed to pay Si 10 percent of the total value of the contract. The judges previously rejected claims by Si that Japanese executives falsely accused him. The court noted that Si's crime could affect the prestige and reputation of the citizens of Vietnam.

Si was arrested [Thanh Nein report, in Vietnamese] in February 2009. In November 2008, four Japanese PCI executives pleaded guilty [BBC report, in Vietnamese] in a Tokyo District Court to paying USD $820,000 of bribes to Si in order to win contracts and develop the infrastructure of the East-West Highway Project. In December 2008, Japan withdrew massive development loans [AP report] and demanded that Vietnam address corruption before resuming financial aid in 2009. In 2007, nine defendants, including three former Vietnamese government officials, were accused of involvement in organized gambling and bribery [JURIST report]. Bui Tien Dung, a former project management head in the Ministry of Transportation, allegedly placed bets totaling USD $760,000 on European soccer matches and subsequently attempted to cover up the alleged wrongdoing by paying a bribe of USD $68,000. Dung headed the Project Manage Unit (PMU) 18, which is responsible for the construction of roads and bridges and is a recipient of aid from the World Bank [official website] and other countries. The World Bank found no evidence of fraud or corruption [press release] after conducting an independent review of PMU 18, although it noted shortcomings in transparency and accounting structures.




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Supreme Court to hear Ashcroft immunity appeal
Ashley Hileman on October 18, 2010 12:30 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] on Monday granted certorari [order list, PDF] in Ashcroft v. al-Kidd [docket; cert. petition, PDF] to determine whether former US attorney general John Ashcroft [JURIST news archive] is entitled to absolute or qualified immunity against claims that he used the material witness statute [18 USC § 3144 text] as a "pretext" to preventatively detain terrorism suspects. Ashcroft appealed the September 2009 ruling [JURIST report] of the US Court of Appeals for the Ninth Circuit [official website], which upheld a lower court decision [JURIST report] rejecting his immunity claims in a lawsuit brought by the American Civil Liberties Union (ACLU) [advocacy website] on behalf of Abdullah al-Kidd. Al-Kidd was detained for 15 days [ACLU backgrounder] in March 2003 pursuant to a material witness order, as the government lacked probable cause to hold him as a terrorism suspect. Deputy Director of the ACLU Immigrants' Rights Project and lead attorney for al-Kidd Lee Gelernt said [press release]:
Arresting and detaining someone for an extended period without probable cause to believe he violated the law goes against the most basic principles on which our country is founded. The appeals court made it very clear that former Attorney General Ashcroft could be held personally responsible if he used the material witness law to circumvent the Constitution's longstanding rule that a suspect may not be arrested without probable cause of wrongdoing. The appeals court opinion was the right one, and the Supreme Court should uphold that decision. Government architects of policies that so clearly defy the Constitution must be held accountable to the law.
The Supreme Court will limit its review to the two issues involving Ashcroft's entitlement to immunity and will not review a third issue as to whether Ashcroft could be held liable for alleged false statements made in an affidavit supporting the material witness warrant, as that issue has since been dropped by the ACLU.

In May the Supreme Court ruled [JURIST report] that a similar case challenging Ashcroft's immunity from lawsuits for mistreatment of prisoners could not go forward because of failure of the plaintiff to adequately state a claim. The court declined to rule on Ashcroft's assertion of qualified immunity, except to note that the denial of a motion to dismiss based on qualified immunity "can fall within the narrow class of appealable orders despite 'the absence of a final judgment.'" Earlier this year, the Ninth Circuit denied Ashcroft's motion for rehearing [JURIST report] in the al-Kidd case, setting the stage for a Supreme Court appeal. The Ninth Circuit originally was split over the question of Ashcroft's immunity, with the dissent questioning the scope of the majority's decision and stating that, "by permitting al-Kidd's suit to proceed, the majority commits two distinct but equally troubling legal errors, each of which will have far-reaching implications for how government officials perform their duties." However, the majority and those in support of its decision believe it necessary to rein in the ability of government officials to distort the law and in doing so, abridge the rights guaranteed to citizens by the Constitution.




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Federal judge extends deadline for Congress to approve Indian Trust settlement
Eryn Correa on October 18, 2010 11:09 AM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] on Friday extended the deadline for Congress to approve the $3.4 billion settlement concerning the US government's alleged mismanagement of funds [DOI materials] held in trust for American Indian landowners [JURIST news archive]. Judge Thomas Hogan set a new deadline for January 7, 2011, reasoning that this would allow the lame-duck session of Congress a final chance to approve the settlement [agreement, PDF]. This is the seventh time [case materials] an extension has been granted since the settlement was agreed upon [JURIST report] in December 2009. The House of Representatives has twice approved the settlement, but the US Senate, which will reconvene on November 15, has yet to vote on the issue. Hogan urged Congress to accept the settlement and meet the January extension, warning that costly litigation for both parties would follow further delay.

The Indian Trust was established by Congress in 1887 to hold proceeds from government-arranged leases to Indian lands. Original litigation was started in 1996 by Elouise Cobell on mismanagement claims [text, PDF] against the Department of the Interior (DOI) [official website]. Although it was determined that the US government had not engaged in fraud, Judge James Roberts of the DC District Court held that the DOI had unreasonably delayed the accounting of the trust. In 2008, litigation ensued [JURIST report] after plaintiffs rejected [JURIST report] a $7 billion settlement proposal from the government. If approved, the $3.4 billion of the current settlement will be divided between class members, a program for improved education for American Indians and a Trust Land Consolidation Fund.




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US soldier to face court-martial for killing Afghanistan civilians
Carrie Schimizzi on October 18, 2010 8:23 AM ET

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[JURIST] A US soldier accused of killing three Afghan civilians [JURIST report] in an unprovoked rogue assault earlier this year will face a court-martial for premeditated murder, the US Army [official website] announced Friday. Specialist Jeremy Morlock of Joint Base Lewis McChord [official website] is one of five soldiers accused of murdering the civilians [AP report] in separate incidents between January and May in the Kandahar province of Afghanistan. During preliminary hearings, Morlock contended that he was following the orders of Staff Sergeant Calvin Gibbs to randomly kill civilians while on patrol. In addition to three counts of premeditated murder, Morlock has been charged with assault, conspiracy to murder, conspiracy to assault, impeding an investigation and using a controlled substance. If convicted, Morlock could face a possible death sentence, but the Army will reportedly press for the lesser sentence of life imprisonment [BBC report]. A date for the trial has not been set, and the other four soldiers allegedly involved in the killings have yet to be formally charged.

The Army announced in May that its Criminal Investigation Command was opening an investigation [JURIST report] into the civilian deaths in Kandahar. The charges are the latest in a number of incidents involving US soldiers in both Iraq and Afghanistan. In April, a military appeals court reversed the conviction [JURIST report] of US Marine Sgt. Lawrence Hutchins III for the 2006 killing of an Iraqi civilian, citing lack of a fair trial. Hutchins was serving an 11-year sentence, reduced from 15 years [JURIST report], for his role in the April 2006 kidnapping and murder of an Iraqi civilian. In December, former soldier Steven Green appealed his conviction [JURIST report] for his role in the rape and murder of a 14-year old Iraqi girl. Green was sentenced to five consecutive life terms [JURIST report] in September.




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UAE court allows extradition of ex-Nigeria state governor to UK
Erin Bock on October 17, 2010 2:26 PM ET

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[JURIST] The Dubai Court of First Instance [official website] has ruled that a former Nigerian Delta state [official website] governor can be extradited to the UK to face charges of money laundering, fraud and embezzlement. James Ibori was arrested [BBC report] in the United Arab Emirates by INTERPOL [official website] in May. Nigeria's Economic and Financial Crimes Commission (EFCC) [official website] accused Ibori of stealing Delta state funds [CP report] worth $292 million during his time in office. These funds were allegedly filtered through banks in the UK, which led the UK Metropolitan Police [official website] to issue a warrant for his arrest [NEXT report]. Ibori has appealed the decision to Dubai's Civil Court of Appeal.

Ibori is not the first Nigerian state governor to be accused of misappropriating state funds. In December 2007, Ayodele Fayose, former governor of the state of Ekiti [official website], was arraigned on corruption charges [JURIST report] stemming from an accusation that he embezzled 1.2 billion naira (USD $7.8 million) from the state. Fayose surrendered to the EFCC after going into hiding following his 2006 impeachment. At that time, the EFCC announced it was currently investigating 15 former state governors for alleged corruption and indicated in October 2007 that at least six would be charged [JURIST report]. Also in 2007, Human Rights Watch (HRW) [advocacy website] released a report [JURIST report] finding that corruption and violence permeating the Nigerian government had reached crisis levels, threatening Nigerian democracy.




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Former Japan ruling party leader seeks dismissal of corruption charges
Dwyer Arce on October 17, 2010 1:17 PM ET

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[JURIST] The former president of the ruling Democratic Party of Japan [official website], Ichiro Ozawa, filed a lawsuit Friday seeking to overturn corruption charges brought against him last month. The Tokyo No. 5 Committee for the Inquest of Prosecution, an 11-member body composed of members of the public without legal backgrounds [Mainichi Daily News report], voted for the second time in September to overrule a prosecutor's decision not to bring charges against Ozawa. The charges are related to the false reporting of over ¥ 700 million [The Japan Times report] in relation to the purchase of land for Ozawa's political fund management group, violating the Political Funds Control Law [text, in Japanese]. The suit, filed in the Tokyo District Court [official website, in Japanese], argues that the committee which indicted Ozawa did not follow proper procedure in overruling the prosecutor's decision. It also criticized the fact that the committee's sessions are conducted behind closed doors and the members are not identified. The court has asked the Daini Tokyo Bar Association [official website] to recommend a lawyer to act as prosecutor, despite Ozawa's requested injunction against the appointment of a prosecutor to pursue the charges. Charges have been brought against Ozawa in relation to the case twice before, but were dropped both times due to lack of evidence. The Prosecution Commission Act [text, in Japanese], governing the Committees for Inquest of Prosecution, was changed in May, allowing the body to overrule the prosecutor's decision on whether to bring charges. The prosecutor had not wanted to proceed against Ozawa due to the failure of the past attempts to prosecute him.

Despite having a relatively low level of official corruption [JURIST report], Japan has faced high profile corruption cases in the past. In 2008, the Tokyo District Court sentenced former Japanese administrative vice defense minister Takemasa Moriya to two and a half years in prison for accepting bribes and committing perjury [JURIST report] after Moriya pleaded guilty to accepting approximately $126,000 worth of illegal benefits from a military contractor. In May 2007 Agriculture Minister Shinichi Yamazaki committed suicide [Times report] after being called before a parliamentary committee to answer allegations of embezzling over $200,000 in state funds.




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Amnesty International calls for review of 'Cuban Five' trial
Erin Bock on October 17, 2010 8:27 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] released a report [text, PDF] outlining fairness concerns the group has with the 2001 conviction of the "Cuban Five" [advocacy website; JURIST news archive]. The men - Fernando Gonzalez, Gerardo Hernandez, Ramon Labanino, Antonio Guerrero and Rene Gonzalez - were convicted of acting as Cuban intelligence agents. The men are currently serving sentences ranging from 15 years to life in US federal prisons. They were arrested in 1998 in Miami and were charged and convicted of various offenses, including acting and conspiring to act as unregistered agents of the Cuban government and fraud and misuse of identity documents. Hernandez was additionally charged and convicted of conspiracy to commit murder for his role in the shooting down of a plane carrying members of the US anti-Castro organization Brothers to the Rescue [advocacy website] in 1996, resulting in four deaths. AI's fairness concerns center around the fact that the men were tried in Miami, which AI alleges prevented the men from receiving a fair trial due to local hostility to the Cuban government and undermined their access to an impartial jury, explaining:
Miami is home to the largest Cuban exile population in the USA and there is no doubt that the trial took place in a venue where there was substantial, even uniquely extensive, community hostility to the Cuban government, then led by Fidel Castro. There were also strong local connections to the Brothers to the Rescue organization, the deaths of four of whose members formed a key part of the prosecution's case. Both before, during and after the trial, the defendants sought to have the trial moved to Fort Lauderdale, less than 30 miles away, in motions which were denied by the district court.
AI also alleges that the evidence used to convict Hernandez of conspiracy to commit murder was not strong and that all of the men received limited access to their attorneys and documents during pre-trail detention. AI sent the report [press release] to US Attorney General Eric Holder [official website], urging him to "review the case and mitigate any injustice through the clemency process or other appropriate means, should further legal appeals prove ineffective."

The men admit that they were working as Cuban spies, but say that they were watching the activities of exile groups opposed to former Cuban president Fidel Castro [BBC profile], rather than the US government. In December, a judge for the US District Court for the Southern District of Florida reduced Labanino's life sentence [JURIST report] to 30 years and reduced Gonzalez's sentence from 19 to 18 years in prison. The judge had previously reduced Guerrero's sentence from life to 22 years in October 2009. These reductions came after the US Court of Appeals for the Eleventh Circuit ruled in 2008 that the sentences were excessive. In 2005, a panel of the Eleventh Circuit ruled that the trial in Miami was biased [JURIST report] due to community prejudice and extensive media coverage. The US government appealed that decision and a rehearing was held before the full appeals court, which upheld [JURIST reports] the convictions. The US Supreme Court has declined to hear an appeal [JURIST report] in the matter.




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California enacts measure on funding disclosure for 'thinly veiled' political ads
Sarah Paulsworth on October 16, 2010 2:51 PM ET

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[JURIST] California's Fair Political Practices Commission (FPPC) [official website] on Thursday issued a rule [press release] that will require sponsors of "thinly veiled" political ads reveal their funding sources. The FPPC said disclosure is no longer precluded in the absence of certain key words such as "vote for," "oppose," and "elect," but instead will be based on a reasonable interpretation of whether the advertisement is an appeal to vote for or against a specific candidate or measure. Chairman Dan Schnur [official profile] said:
This is a great day for Californians. The Commission has adopted what is likely the first statewide rule of its type in the nation. By forcing the disclosure of those who truly attempt to influence the outcome of an election, we have put an end to the most egregious of campaign tactics. Now, when groups try to stay in the shadows by sending out carefully crafted campaign messages in the days and months before an election that are nothing more than thinly veiled attempts to sway the electorate, the public will know who is behind them.
This measure applies for political ads run within 60 days of any given election. However, the provision will not go into effect [San Francisco Chronicle report] for 30 days and therefore does not affect the current round of elections.

Campaign finance has become a contentious issue recently, particularly in light of the Supreme Court's decision in Citizen's United v. Federal Election Commission [Cornell LII backgrounder], which eased restrictions [JURIST report] on political and campaign spending by corporations and unions based on First Amendment grounds. In the wake of Citizen's United, the Disclose Act [Open Congress materials], which prohibits corporations receiving federal contracts worth more than $7 million from spending money on "electioneering communications" and prohibits foreign-controlled domestic corporations from financing campaigns, was approved by the House of Representatives [JURIST report], but stalled in the Senate [LA Times report] in September. This past March, a three-judge panel of the US District Court for the District of Columbia [official website] ruled [opinion, PDF] that the Republican National Committee (RNC) [committee website] cannot raise "soft money" to use in state elections. "Soft money" refers to contributions beyond the ceilings imposed by campaign finance [JURIST news archive] laws.




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Dutch prosecutor requests politician's acquittal for Anti-Islamic statements
Daniel Makosky on October 16, 2010 11:51 AM ET

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[JURIST] The Dutch Public Prosecution Service (OM) [official website, in Dutch] on Friday concluded its case [prosecution materials, in Dutch] against right-wing politician Geert Wilders [personal website; JURIST news archive] by asking for Wilders' acquittal on all charges [materials, PDF]. The prosecutors' request is based on a determination that the politician's statements were directed at Islam and not Muslims themselves, and that they were within the realm of public debate as commentary on matters such as immigration. Additionally, prosecutors noted that the available evidence is insufficient to demonstrate that Wilders intended to incite violence or create divisiveness amongst the Dutch population. Wilders, whose trial began earlier this month [AP report] before the Amsterdam District Court, frequently calls Islam "fascist," has compared the Quran to Adolf Hitler's Mein Kampf and advocates barring Muslims from immigrating to the Netherlands. The defense is scheduled to begin presenting its case [AP report] next week, and a verdict is expected next month. Wilders faces up to one year imprisonment or fines if convicted.

Wilders' trial was suspended [JURIST report] earlier this month after a lawyer representing him accused one of the judges of bias. Days prior, Wilders announced [JURIST report] that the Dutch government will attempt to ban the burqa [JURIST news archive] and other full Islamic veils to secure the support of Wilders' Freedom Party [party website, in Dutch] in forming a coalition government. An Amsterdam trial court ruled in February that it had jurisdiction to try Wilders for anti-Islamic statements, rejecting [JURIST report] Wilders' claim that, as a member of parliament, he should be tried by the Supreme Court. That court found that his alleged crime was committed outside his capacity as an MP. Last year, the OM announced that they would prosecute Wilders following a January 2009 court order [press releases, in Dutch] by the Amsterdam Court of Appeals. Much of the controversy stems from Wilders' 15-minute film, Fitna, which shows images of the Quran alongside images of violence and says democratic values are threatened by the increasing number of Muslins in Europe.




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Moldova ratifies Rome Statute
Daniel Makosky on October 16, 2010 8:58 AM ET

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[JURIST] The Republic of Moldova [official website, in Moldovan] on Tuesday ratified [press release] the Rome Statute of the International Criminal Court (ICC) [official website]. The treaty [text] will become effective in Moldova on January 1, 2011. EU High Representative Catherine Ashton [official profile] commended the move, noting the positive effects that ratification will have [press release, PDF] on relations between the EU and Moldova. Amnesty International (AI) [advocacy website] offered similar praise [press release], though Christopher Keith Hall of the International Justice Project cautioned that, "national law reform is vital to ensure that Moldova can cooperate fully with the Court and that its national courts can fulfil their obligations to investigate and prosecute cases of genocide, crimes against humanity and war crimes." Moldova becomes the 114th signatory to the treaty since 1998.

The ICC, while praised by many observers, is not without controversy. Earlier this month, the court announced that it would continue the proceedings [JURIST report] against Democratic Republic of Congo militia leader Thomas Lubanga Dyilo [JURIST news archive]. The court had previously ordered a stay in the proceedings as well as Lubanga's release [JURIST reports]. Last month, a Kenyan businessman challenged the constitutionality [JURIST report] of the ICC's investigation into the violence following the 2007 Kenyan presidential election [JURIST news archive], arguing that it is illegal under the country's new constitution [JURIST report], adopted in August. UN Secretary-General Ban Ki-moon [official website] opened the inaugural Review Conference of the Rome Statute [materials] in June by hailing the dawn of an "age of accountability," though attendees were unable to reach a consensus on the definition of a crime of aggression [JURIST reports].




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Egypt cancels private permits to broadcast live television
Zach Zagger on October 15, 2010 3:37 PM ET

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[JURIST] Egypt issued new media restrictions Wednesday that critics say effectively put all live television media, including talk shows and news shows, under government control. The telecommunications regulator cancelled the broadcast permits [Washington Post report] of all private media companies forcing them to apply for new licenses through the state television agency. The measure is part of a series of events that critics argue are meant to stifle the media in the run-up to the November parliamentary and the 2011 presidential elections. State media officials said the restrictions are meant as part of a broader reform on independent media [Reuters report] and not meant to stop free speech.

Earlier this month, Ibrahim Eissa, editor-in-chief and creator of the private daily paper Al-Dustour [official website, in Arabic], was fired [BBC report] after he published an op-ed piece by opposition figure Mohamed ElBaradei. In 2008, Eissa was convicted for spreading "rumors" [JURIST report] about the health of Egyptian President Mohamed Hosni Mubarak in an August 2007 report. Egypt's Abbaseyya Appeals Court upheld the conviction [JURIST report] in 2008. In September, it was reported that independent journalist Hamdi Qandeel is expected to go on trial [JURIST report] for allegedly libeling Egyptian Foreign Minister Ahmed Abult Gheit [official website]. In 2009, Egypt's Agouza Appeals Court overturned the editors' prison sentences [JURIST report] but upheld their fines. Prior to 2004, Egypt was limited to only state-run media but has since seen a rise in private media.




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CVS to pay $75 million for failure to control sale of Methamphetamine ingredient
Brian Jackson on October 15, 2010 2:01 PM ET

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[JURIST] The US Drug Enforcement Administration (DEA) [official website] announced [press release] Thursday that CVS Pharmacy [corporate website] has agreed to pay a $75 million fine for sales of pseudoephedrine to individuals who used that compound to produce methamphetamine [NIDA backgrounder, PDF]. In addition to the $75 million fine, CVS will also forfeit the profits from those sales, an additional $2.6 million. Under the Combat Methamphetamine Act of 2005 [materials; summary, PDF], individuals are limited to purchases of 3.6 grams of ephedrine-based compounds per day. According to the DEA, CVS allowed violations of this limit on "thousands" of occasions throughout the Southwestern US. In a statement, CVS said that the lapses that allowed the violations to occur were serious, but that because of improved "handling and monitoring of pseudoephedrine," such lapses would not happen again [press release]. Under the agreement with the DEA, CVS will not face criminal liability for the violations.

The production and use of methamphetamine has become one of the most significant public health issues in the US over the past 40 years. Originally a problem localized to the Western US, an epidemic of use has spread eastward [MSNBC report] over the past decade, bringing with it the associated dangers of production [EPA report, PDF]. As the popularity of methamphetamine has grown, Congress has sought to control proliferation with a number of pieces of legislation, including the Comprehensive Methamphetamine Control Act of 1996, the Methamphetamine Anti-Proliferation Act of 2000 [materials], and the Combat Methamphetamine Act of 2005. With the passage of the Combat Methamphetamine Act of 2005, pseudoephedrine-containing compounds, such as many cold medications, must be placed behind the counter, where customers cannot access the medications without assistance.




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DOJ to continue to prosecute drug crimes regardless of California vote: AP
Brian Jackson on October 15, 2010 1:07 PM ET

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[JURIST] US Attorney General Eric Holder [official website] has said the Department of Justice will continue to enforce the Controlled Substances Act (CSA) [materials] in California even if a state ballot measure legalizing marijuana passes in November, according to a Friday report [text] by the AP. The measure, Proposition 19 [text, PDF], would legalize the possession of less than one ounce of marijuana for those over the age of 21. Holder reportedly made the comments in a letter to former heads of the Drug Enforcement Administration (DEA) [official website]. Proposition 19 initially received strong support, however recent polling indicates that a majority of Californians would vote against its passage [Ipsos poll summary]. Marijuana is a Schedule I drug [DEA drug schedule], meaning it has no medically accepted use, it has a high potential for abuse and it is not considered safe for use, even under supervision. Under federal law, it cannot legally be prescribed by a doctor.

If Proposition 19 is approved by California voters on November 2, California would become the first state to legalize the possession and growth of marijuana. California had previously decriminalized possession of less than one ounce of marijuana under State Senate Bill 1449 [text]. Decriminalization is the process of reducing the punishment for possession of marijuana from a misdemeanor with the possibility of jail time to civil fines and/or mandatory drug education programs. In addition to California, Massachusetts, Oregon, and 10 other states [Boston Globe reports] have decriminalized possession, as has the city of Denver, Colorado.




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Prosecutors launch tax inquiry against Italy PM Berlusconi
Drew Singer on October 15, 2010 12:25 PM ET

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[JURIST] Italian prosecutors on Friday launched a tax inquiry against Prime Minister Silvio Berlusconi [BBC profile; JURIST news archive] for tax declarations he made in 2003 and 2004 relating to the commercial broadcast company Mediaset [corporate website, in Italian], which Berlusconi founded. Berlusconi is accused of artificially inflating the price of film rights sold to companies that belonged to him, and then selling them back to Mediaset for less money, allowing the company to reduce its revenues and pay less in taxes [AFP report]. Mediaset has denied the allegations.

This is the fourth time Berlusconi has faced allegations of fraud in relation to his Mediaset company. In January, Berlusconi, who was already facing two separate trials on charges of corruption and bribery, was accused of embezzlement and tax fraud [JURIST report]. In March, the Italian Senate [official website, in Italian] gave final approval to a bill [materials, in Italian] that would allow cabinet ministers, including Berlusconi, to postpone criminal proceedings against them on the grounds that they would interfere with official duties. The legislation, passed by a vote of 169-126 [JURIST report] with three members abstaining, allows officials to suspend trials against them for up to 18 months by claiming a "legitimate impediment" to appearing in court.




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Judge approves settlement of health claims from 9/11 cleanup
Matt Glenn on October 15, 2010 12:15 PM ET

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[JURIST] Judge Alvin Hellerstein of the US District Court for the Southern District of New York [official website] on Thursday approved a $47.5 million settlement [order text] between the Port Authority of New York and New Jersey [official website], which owns the World Trade Center site, and over 9,000 people who claim they became ill from helping with 9/11 [JURIST news archive] rescue and cleanup efforts. The settlement calls for four tiers of claims based on severity of related illnesses with those in the lowest tier receiving $2,000 and those in the highest tier receiving funds "according to their injury classification with adjustment factors." The Port Authority Board of Commissioners and a certain weighted percentage of plaintiffs still must approve the settlement. Lawyers for the Port Authority do not expect the settlement to be finalized [NYT report] this month.

In June, Hellerstein approved a $712.5 million settlement agreement reached earlier that month [JURIST reports] between the city and rescue workers who brought health claims against the city. In 2007, Hellerstein ruled [JURIST report] that the class action lawsuit filed by cleanup workers against the city and the Port Authority could proceed. The lawsuit was filed [JURIST report] in 2004.




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Obama administration moves to reinstate 'Don't Ask Don't Tell'
Megan McKee on October 15, 2010 10:24 AM ET

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[JURIST] The Obama administration on Thursday asked [stay application, PDF] for a federal judge to stay her order [order, PDF] requiring the US military to end enforcement of its controversial "Don't Ask, Don't Tell" (DADT) policy [10 USC § 654; JURIST news archive]. In reaction to the order [JURIST report] by Judge Virginia Phillips of the US District Court of the Central District of California [official website] to halt DADT, which came a little more than a month after the court declared the policy unconstitutional [opinion, PDF; JURIST report], the federal government filled an emergency stay application, a legal memo [text, PDF] in support of it, sworn statements by a pentagon official and a government lawyer [statements, PDF], a proposed stay order [order, PDF], and a formal notice of appeal [appeal notice, PDF] to the US Court of Appeals for the Ninth Circuit. The government has given Phillips until Monday to comply, and if she does not, it will ask the Ninth Circuit to delay the order. The legal memo stated that the administration favors the repeal of DADT, and that key military officials share the same position, but that it was the Pentagon's "considered judgment that a precipitous change in policy will immediately and significantly impair the Department's current efforts to devise an orderly end to DADT."

Since its enactment in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of DADT. Last month, a federal judge for the US District for the Western District of Washington [official website] ordered [JURIST report] that a US Air Force officer be reinstated after being previous discharged under DADT. Also in September, the Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the policy. In May, the House of Representatives [official website] and the Senate Armed Services Committee voted to repeal the policy after President Barack Obama and Defense Secretary Robert Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness. In March, Gates announced changes to the enforcement [JURIST report] of the policy to make it more difficult to expel openly gay service members from the military.




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US military judge postpones Khadr trial while lawyers seek deal
Megan McKee on October 15, 2010 9:02 AM ET

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[JURIST] A US military judge postponed the trial of Canadian Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials; JURIST news archive] Thursday while his lawyers attempted to reach a deal exchanging a guilty plea for leniency. The military proceeding was to resume Monday after being suspended [JURIST report] in August, but the judge delayed [Reuters report] the proceedings furthe,r and the tribunal will now resume October 25. Khadr is on trial for allegedly killing a US soldier in Afghanistan with a hand grenade in 2002 when he was 15. If a deal is reached, it will bring an end to the first trial in which an individual was prosecuted in a war crimes tribunal for acts allegedly committed as a juvenile since WWII. If found guilty, Khadr could face a life sentence.

In a ruling [ruling, PDF] released August 21, US military judge Army Colonel Patrick Parrish rejected [JURIST report] claims by Khadr that his confession was a byproduct of torture. Khadr's lawyers had argued [motion, PDF] that his statements were illegally obtained through threats of rape and death by interrogators. The military trial of Khadr was suspended on August 13 following the collapse of his lawyer during opening testimony. The lawyer, Lt.-Colonel Jon Jackson, was airlifted to mainland medical facilities following the collapse, which is attributed to complications from gall bladder surgery. Jackson is Khadr's only lawyer, and is the only member of his defense team authorized to address the court. The collapse occurred during the previous day's opening arguments, in which prosecutors argued that Khadr was a willing al Qaeda operative who had adopted their ideology as his own. Prosecutors introduced video allegedly depicting Khadr making an explosive in Afghanistan and argued that he had proudly confessed to being a member of al Qaeda and to killing a US soldier during his interrogation by US forces. Jackson countered that Khadr was a victim of his father, alleged al Qaeda financier Ahmed Said Khadr, who had taken his son with him to Afghanistan shortly after the US-led invasion. Jackson stated that Khadr's confession was not reliable because it came only after Khadr was told a story of an uncooperative detainee that was imprisoned and raped during incarceration. The trial was conducted with a seven member jury made up of US military officers.




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Rights group releases inaugural rule of law report
Daniel Makosky on October 15, 2010 8:21 AM ET

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[JURIST] The World Justice Project (WJP) [advocacy website] released its inaugural report [text, PDF] on Thursday, ranking countries by their adherence to the rule of law. The three-year study categorizes governments based on nine factors, including their level of corruption, rights, clarity of laws and access to judicial remedies. Of the nations with the highest income levels, Sweden ranked first in a majority of the indices, while most US rankings were consistently toward the bottom of both the country's economic and regional classes. The WJP found the rule of law lacking in poorer countries including Pakistan, Kenya and Liberia. The American Bar Association (ABA) [organization website], a co-sponsor of the WJP, emphasized that the report's significance derives in part from its analysis of individual categories [report] based on the real world experiences of those living in the country.

A survey released by the Mo Ibrahim Foundation [advocacy website] earlier this month detailed a decline in the rule of law [JURIST report] and democratic rights amongst African nations. In November, Mexican President Felipe Calderon [official website, in Spanish] called for greater adherence to the rule of law, stressing [JURIST report] its importance for a flourishing economy and orderly social life. US Attorney General Eric Holder [official profile; JURIST news archive], in an October 2009 speech, reiterated [JURIST report] the need for authorities to abide by the rule of law when conducting investigations into potential terrorist activities as a means of "leading by example."




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Federal judge allows Florida health care suit to proceed
Daniel Makosky on October 15, 2010 7:15 AM ET

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[JURIST] A judge for the US District Court for the Northern District of Florida [official website] on Thursday denied a motion to dismiss [opinion, PDF] a lawsuit brought by a group of attorneys general challenging the constitutionality of the recently enacted health care reform law [HR 3590 text; JURIST news archive]. The lawsuit [complaint, PDF], filed in March and joined by 20 states [JURIST reports] and the National Federation of Independent Businesses (NFIB) [association website; JURIST report], seeks injunctive and declaratory relief against what it alleges are violations of Article I and the Tenth Amendment of the Constitution [text], committed by levying a tax without regard to census data, property or profession, and for invading the sovereignty of the states. The plaintiffs also assert that the law should not be upheld under the Commerce Clause [Cornell LII backgrounder]. In rejecting the motion to dismiss, Judge Roger Vinson described the use of the individual mandate as "unprecedented" and warranting further review. The court also rejected the government's assertion that the suit is improper until the legislation's 2014 effective date, saying that the law's impact is already being felt. Florida Attorney General Bill McCollum [official website] called [press release] the ruling "a victory for the States, small businesses and the American people," while the Obama administration reiterated [WH blog] its belief in the legislation's constitutionality.

A federal judge in Michigan ruled [opinion, PDF; JURIST report] last week that the law is constitutional under the Commerce Clause as it addresses the economic effects of health care decisions, and that it does not represent an unconstitutional direct tax. In August, a federal judge allowed a similar lawsuit filed in Virginia to proceed on narrow grounds [opinion, PDF; JURIST report], addressing only subject matter jurisdiction [Cornell LII backgrounder] and the legal sufficiency of the complaint. Several days later, McCollum cited the ruling in his response [JURIST report] to the Obama administration's motion to dismiss [text, PDF] the Florida challenge, filed in June.




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Europe rights court to review Macedonia role in CIA extraordinary rendition
Megan McKee on October 14, 2010 4:23 PM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] announced Thursday that it will review the involvement [press release] of the Former Yugoslav Republic of Macedonia (FYROM) in the extraordinary rendition [JURIST news archive] and torture of Khaled El-Masri [JURIST news archive] by the Central Intelligence Agency (CIA) [official website]. On orders from the US, in 2003, Macedonian authorities seized [Guardian report] El-Masri, a German citizen of Lebanese descent, while he was traveling in Macedonia and held him incommunicado for 23 days. He was then handed over to the CIA and transported to a secret detention facility in Afghanistan where he was held for four months in allegedly inhumane conditions, interrogated and abused. The case against the FYROM is the first in which a government has been called before an international tribunal to explain its involvement in the CIA's extraordinary rendition program. El-Masri's case was brought by the Open Society Justice Initiative [advocacy website] and was communicated to the Macedonian government by the ECHR on October 8. The FYROM has continued to deny its involvement in El-Masri's detention, and the US has never officially acknowledged his rendition.

In May, a lawyer from the Spanish National Court Office of the Prosecutor petitioned [JURIST report] judge Ismael Moreno to issue arrest warrants for 13 CIA agents who allegedly kidnapped El-Masri. The Office of the Prosecutor alleged that the court had jurisdiction to issue the warrants because the agents made a stop in Spanish territory using hidden identities without official Spanish government authorization to do so. In 2008, El-Masri petitioned [ACLU materials; JURIST report] the Inter-American Commission on Human Rights (IACHR) [official website] to open an investigation of human rights violations by the US, alleging that he was tortured by the CIA. In 2007, the US Supreme Court rejected [JURIST report] without comment El-Masri's petition for certiorari, ostensibly supporting the Bush administration's contention that allowing El-Masri's federal lawsuit to proceed would require the revelation of state secrets. Also in 2007, the German Justice Ministry said that it would not press a formal request [JURIST report] to extradite the 13 CIA agents suspected of participating in El-Masri's alleged rendition after the Bush administration informed them it would not comply with a such a request, despite a 2006 German investigation that concluded there was no evidence to disprove El-Masri's allegations.




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Rwanda opposition leader arrested over terror allegations
Drew Singer on October 14, 2010 3:46 PM ET

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[JURIST] Rwandan police on Thursday arrested opposition leader Victoire Ingabire Umuhoza [campaign website; JURIST news archive], accusing her of being involved in the formation of a terrorist organization. Ingabire was implicated, authorities say, during investigations [AP report] into the activities of a man who was a former commander of a Hutu militia group operating in neighboring Congo. Ingabire was also arrested in April for allegedly denying [JURIST report] the 1994 Rwandan genocide [JURIST news archive] and collaborating with terrorists, although rights groups say that both arrests are the Rwandan government's attempts to prevent opposition in the country.

In May, Rwandan authorities arrested [JURIST report] US lawyer and JURIST Forum [website] contributor Peter Erlinder [professional profile; JURIST news archive] on charges of genocide denial while he was in Rwanda to prepare his defense of Umuhoza. Erlinder returned to the US [JURIST report] in June after spending 21 days in a Rwandan prison. In March, an aid to Ingabire who had been convicted in absentia, pleaded guilty to genocide charges [JURIST report] in exchange for a reduced prison sentence of 17 years.




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Rights groups reject invitation to testify in Sri Lanka civil war probe
Megan McKee on October 14, 2010 2:55 PM ET

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[JURIST] Human Rights Watch (HRW), Amnesty International (AI) and the International Crisis Group (ICG) [advocacy websites], on Thursday declined [joint letter] an invitation from Sri Lanka's Lessons Learnt and Reconciliation Commission (LLRC) to testify before the probe investigating the end of the nation's civil war [JURIST new archive]. In rejecting the LLRC's invitation the groups stated:
While we would welcome the opportunity to appear before a genuine, credible effort to pursue accountability and reconciliation in Sri Lanka, the LLRC falls far short of such an effort. It not only fails to meet basic international standards for independent and impartial inquiries, but it is proceeding against a backdrop of government failure to address impunity and continuing human rights abuses.
The groups went on to state that the LLRC's mandate, composition and procedures and the nation's human rights environment make it impossible to carry out a free and independent inquiry into war crimes. AI is particularly concerned [AFP report] about the suitability of a number of former officials serving on the commission who have defended Sri Lanka against war crimes accusations, and the lack of witness protection provisions. In the recent past, the advocacy groups have accused [JURIST report; JURIST report] Sri Lanka of carrying out various human rights violations during the final months of the 30-year civil war.

In August, Sri Lankan Defense Secretary Gotabaya Rajapaksa [official profile] appeared before a government-backed commission and defended [JURIST report] the actions of the government during the conflict with the rebel Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive]. The LLRC has been criticized [HRW press release] as a superficial attempt to stave off an international investigation into accusations of widespread and severe human rights abuses by government forces during the war. Gotabaya Rajapaksa appeared before the commission and stated that the government took every effort to avoid civilian casualties. He also indicated that a major focus of the military campaign was providing humanitarian relief to regions of the country that had been under LTTE control. According to the secretary, the military risked higher casualties in order to allow humanitarian convoys into regions where fighting between the military and LTTE was heavy. Gotabaya Rajapaksa also argued that the UN and the international community were to blame for civilian casualties because they failed to ensure that the LTTE released civilians under their control. International pressure on Sri Lanka to conduct a thorough investigation into the civil war continues to mount, despite the government-backed commission.




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Federal judge rules Texas Pledge of Allegiance constitutional
Andrea Bottorff on October 14, 2010 10:57 AM ET

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[JURIST] The US Court of Appeals for the Fifth Circuit [official website] ruled [opinion, PDF] Wednesday that the words "one state under God" in the Texas Pledge of Allegiance do not violate the First Amendment [text] of the US Constitution, upholding a 2009 district court opinion [text, PDF]. A Texan couple filed the suit against the state, arguing that the pledge violated the separation of church and state mandated in the Establishment Clause [Cornell LII backgrounder]. The couple claimed that their school-age children were harmed [Dallas News report] by being required to recite the pledge at school, particularly if the children refused to participate. The appeals court ruled:
The pledge is a patriotic exercise, and it is made no less so by the acknowledgment of Texas's religious heritage via the inclusion of the phrase "under God." A pledge can constitutionally acknowledge the existence of, and even value, a religious belief without impermissibly favoring that value or belief, without advancing belief over non-belief, and without coercing participation in a religious exercise. Texas's pledge is of this sort and consequently survives this challenge.
The controversial words were added to the Texas Pledge of Allegiance in 2007 [TSL backgrounder].

Earlier this year, the US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] that a teacher-led recitation of the national Pledge of Allegiance [text; JURIST news archive] in public schools does not violate the constitution [JURIST report]. Sacramento atheist Michael Newdow [JURIST news archive] had challenged the practice on behalf of several families, arguing that the phrase "under God" violated the Establishment Clause. In 2008, the US Court of Appeals for the Eleventh Circuit [official website] upheld [JURIST report] part of a Florida law [text] that requires students in grades kindergarten through 12 to obtain parental permission before they can be excused from reciting the Pledge of Allegiance. The court held that another provision requiring all students to stand, even if excused from reciting the Pledge, violates the First Amendment, and is therefore not enforceable.




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Ontario high court rules witnesses may wear niqab unless unfair to accused
Jay Carmella on October 14, 2010 10:12 AM ET

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[JURIST] The Court of Appeal for Ontario [official website] ruled [judgment, PDF] Wednesday that a witness does not have to remove her niqab [JURIST news archive] unless the failure to do so will prevent the accused from receiving a fair trial. The court stopped short [CBC report] of issuing a ruling that would require all courts to follow in a similar fashion. The decision emphasizes the need for each situation to be considered on a case by case basis. The court wrote:
If, in the specific circumstances, the accused's fair trial right can be honoured only by requiring the witness to remove the niqab, the niqab must be removed if the witness is to testify. I would hope, however, that if the individual rights recognized in the Charter are treated as something more than additional weapons in the lawyer's legal arsenal, the parties will engage in good faith efforts to reconcile competing interests and produce a satisfactory resolution that recognizes and respects both the accused's right to a fair trial and the witness's right to exercise her religious beliefs. I repeat, each case must turn on its own facts. The full facts of this case, as they relate to this issue, are not known.
The lower court in this case required the victim to remove her veil. However, the court of appeal found that the lower court did not conduct a proper inquiry into the woman's religious rights. The victim has accused her cousin and uncle of repeatedly sexually abusing her between the ages of 6 and 10.

The issue surrounding Muslim women and their traditional clothing remains controversial in Canada and around the world. Last week, the French Constitutional Council [official website, in French] ruled [JURIST report] that a bill [materials, in French] making it illegal to wear the Islamic burqa, niqab or other full face veils in public, conforms with the Constitution. Earlier this month, a Dutch politician suggested that the Netherlands will ban the burqa [JURIST report] as part of the government's plan to form a minority coalition. In August, Austria's conservative Freedom Party [official website, in German] called for a special vote [JURIST report] on whether to ban face veils and the construction of minarets, two of the most visible symbols of the Islamic faith. Many members of the Muslim Canadian Congress (MCC) [advocacy website] believe [JURIST comment] that Canada should consider banning the wearing conservative Muslim clothing.




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Indonesia court strikes down law allowing government to ban books
Jay Carmella on October 14, 2010 9:04 AM ET

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[JURIST] The Indonesian Constitutional Court [official website, in Bahasa] on Wednesday overturned [press release, in Bahasa] a law that has allowed the Indonesian government to ban books it deemed controversial for nearly 50 years. The court found [Jakarta Post report] that giving the Attorney General [official website, in Bahasa] the authority to ban books violated the Indonesian Constitution [text] by denying basic human rights without due process of the law. While the government will no longer have the ability to ban books, the power to do so still exists in the courts [Jakarta Globe report]. More than 400 books have been banned in Indonesia over the last 50 years, including 22 books since 2006. The court's ruling will only affect the government's ability to ban books going forward, and books previously banned will remain so. The court upheld the government's ability to monitor the circulation of printed material to maintain public order, but emphasized that this could not amount to the banning or confiscating of those materials.

The decision is a victory for human rights groups that have been pushing for reform in Indonesia. In June, Human Rights Watch (HRW) [advocacy website] urged [JURIST report] the Indonesian government to release secession activists and adhere to international standards of free speech. In April, the Constitutional Court upheld [JURIST report] a controversial anti-blasphemy law enacted in 1965 by the first Indonesian president. The court rejected the legal challenge raised by a coalition of human rights groups and social activists supporting the Wahid Organization, a civil organization that advocates for religious pluralism in Indonesia. In March, the court rejected [JURIST report] a challenge to a controversial anti-pornography law. The law [text, in Bahasa] was purportedly designed to protect younger generations from pornographic and lewd materials. Critics challenged the bill for being too broad, discriminating against women, and targeting aspects of Indonesian tradition and culture, but the court rejected those arguments




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State AGs to investigate foreclosure practices
Erin Bock on October 14, 2010 8:33 AM ET

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[JURIST] Attorneys general from all 50 states and the District of Columbia announced [joint statement, PDF] Wednesday that they have formed a bipartisan group called the Mortgage Foreclosure Multistate Group (MFMG), which will be investigating allegations of procedural defects committed by mortgage loan companies during foreclosure processes. The group also includes state bank and mortgage regulators. In a joint statement, the MFMG explained its investigation will focus on "robo-signing," a process by which individuals signed affidavits and other foreclosure documents without having personal knowledge of the facts and without confirming the accuracy of supporting documentation. The group asserted that such practices "constitute a deceptive act and/or an unfair practice." The MFMG will also look into allegations that affidavits were signed without a notary public being present, which is violative of state law. The group is being led by Iowa Attorney General Tom Miller [official website] and will work to satisfy several objectives including stopping and investigating improper practices, evaluating remedies, and establishing a vehicle for independent monitoring of future practices. Miller stated [press release] that this list of objectives is not exhaustive:
These are starting points, and it's possible this group may limit, expand or change its objectives. What's important here is this is a cooperative and coordinated effort by states to address a serious problem. This is not simply about a glitch in the paperwork. It's also about some companies violating the law and many people losing their homes.
Investigations have already been underway in some states, and employees of several large lending companies have admitted in depositions that they failed to read documents prior to signing them [AP report]. Bank of America [corporate website] has placed a moratorium on foreclosure sales [statement] until the company has a chance to assess the accuracy of past foreclosure decisions and documentation. On Tuesday, Wells Fargo [corporate website] announced [statement] that it would not place a moratorium on sales, stating that they frequently conduct reviews of their foreclosure practices and their affidavits have been accurate.

In June, Countrywide Home Loans, Inc., a subsidiary of Bank of America, reached a $108 million settlement agreement [JURIST report] with the Federal Trade Commission (FTC) [official website] to resolve charges that the subsidiary collected excessive fees from homeowners facing foreclosure. Lenders and insurance companies have also recently come under fire for fraud relating to sub-prime mortgage exposure. Last month, a federal judge refused to dismiss a suit [JURIST report] against American International Group (AIG) [corporate website] accusing the company of fraudulent intent to mislead the market and failing to disclose to its shareholders the risks the company was taking in issuing sub-prime mortgages. In August, a federal judge rejected a $75 million settlement [JURIST reports] agreement between Citigroup [corporate website] and the US Securities and Exchange Commission (SEC) [official website] for misleading investors about the company's exposure to sub-prime mortgage-related assets. Last year, the US Senate [official website] rejected a bill [S 896 materials] that would have aided homeowners in foreclosure [JURIST report] by allowing bankruptcy judges to modify mortgages from lenders that had not already offered better terms to their borrowers.




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Supreme Court hears arguments on access to DNA testing
Jaclyn Belczyk on October 13, 2010 2:56 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in Skinner v. Switzer [oral arguments transcript, PDF; JURIST report] on a convicted prisoner's right to seek access to DNA testing. The issue is whether a convicted prisoner seeking access to biological evidence for DNA testing may assert a civil rights claim under Section 1983 [text] or if such a claim is cognizable only under a writ of habeas corpus. The US Court of Appeals for the Fifth Circuit affirmed [opinion, PDF] a district court decision to dismiss Skinner's § 1983 claim seeking access to DNA evidence that may prove his innocence in the murders for which he is now sentenced to death, stating that relief could only be sought through habeas corpus. Counsel for the petitioner argued that the Fifth Circuit's rule, "that any Federal claim that might conceivably set the stage for a subsequent collateral attack, however removed in time, must itself be brought via habeas," cannot be squared with previous Supreme Court decisions. Counsel for the respondent argued that, "Congress set up habeas as a means of allowing collateral attacks. Nowhere else does Congress specifically permit collateral attacks on criminal proceedings."

In Kasten v. Saint-Gobain [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether an oral complaint of a violation of the Fair Labor Standards Act [text, PDF] is protected conduct under the anti-retaliation provision [29 USC § 215(a)(3) text]. The US Court of Appeals for the Seventh Circuit ruled that an oral complaint is not protected and later denied [opinions, PDF] a motion for a rehearing by the full court. Counsel for the petitioner argued:

When Kevin Kasten told his employer that the location of the time clocks was illegal and that if they were taken to the court they would lose, he filed any complaint within the meaning of the 215(a)(3) under the Fair Labor Standards Act, because filing includes an oral communication, because "any" means any, which includes formal or informal, written or unwritten communications.
Counsel for the US government argued as amicus curiae on behalf of Kasten. Counsel for the respondent argued that, "to file any complaint, which as it would have been understood in '38 and frankly after that, when you file a complaint that usually entails some notion of formality."




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Sweden court begins first war crimes trial of former Bosnian prison guard
Sarah Miley on October 13, 2010 2:26 PM ET

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[JURIST] The Stockholm District Court on Wednesday began proceedings in the the country's first war crimes trial of Swedish citizen and former Bosnian prison guard Ahmet Makitan [Trial Watch profile]. Makitan is accused [JURIST report] of violating the Geneva Convention on the Treatment of Prisoners of War [text, PDF] by kidnapping people and torturing and insulting prisoners at a camp in Dretelj, Bosnia-Herzegovina, during the Balkan War [JURIST news archive]. Makitan arrived in Sweden in 2001 and obtained citizenship in 2006. The charges are the result of an investigation carried out by Sweden's National War Crimes Commission, which was created in 2008. Makitan has been in police custody since January. Questions have arisen regarding the ability to prosecute [Sveriges Radio report, in Swedish] Makitan for war crimes within the framework of Sweden's domestic legislation. The proceedings are expected to last five months [The Local Report].

In addition to the Makitan case, Sweden is also considering litigation in several other war crimes cases. In June, Sweden announced [JURIST report] its intention to investigate the possible role of Lundin Petroleum [corporate website] in crimes against humanity committed in Sudan from 1997 to 2003. The investigation will examine allegations made in a report [text, PDF] released by the European Coalition on Oil in Sudan (ECOS) [advocacy website], which alleged that Sudanese troops attacked and displaced civilians so that Lundin could have access to land for oil drilling. In April, Swedish Police [official website] arrested [press release, in Swedish] a Kosovo war crimes suspect. The suspect is accused [JURIST report] of committing war crimes during the 1998-1999 Kosovo war [BBC backgrounder; JURIST news archive] in the small village of Cuska in May 1999. A Swedish police spokesperson did not release the man's full name because of Swedish privacy laws but did state that the suspect is a Serbian man in his 30s [AFP/SW report].




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Rights group urges arrest of DRC general for war crimes
Sarah Miley on October 13, 2010 12:06 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Wednesday urged the Congolese government to arrest [press release] Bosco Ntaganda [case materials], a Congolese general wanted [arrest warrant, in French] by the International Criminal Court (ICC) [official website] for war crimes. HRW claims that, since January, Ntaganda has been implicated in the assassination of at least eight people, arbitrary arrests of another seven and the abduction and disappearance of at least one more. Ntaganda lives and moves openly in Goma, a city in the eastern bloc of the Democratic Republic of the Congo (DRC). He gained leadership of the National Congress for the Defense of the People (CNDP) rebel group in 2009 as a result of a coup against former leader Laurent Nkunda [BBC profile; JURIST news archive]. Ntaganda became a general of the Congolese army after promising to integrate the rebel forces into the Congolese troops. As a result, the government has refused to execute the ICC arrest warrant against him, claiming that his presence is needed in order to maintain peace withing the troops. HRW senior researcher Anneke Van Woudenberg chided the Congolese government's actions stating:
Ntaganda should be arrested and made to answer for his crimes, rather than being allowed to walk freely in Goma. He is a threat to the people of eastern Congo and is making a mockery of the Congolese government's policy of zero tolerance for human rights abuses. ... [The Congolese government] claims that Ntaganda is necessary for the peace process, but Ntaganda's brutal targeting of opponents and blatant disregard for Congolese law and basic human rights is no way to achieve peace.
HRW contends that Ntanganda is targeting supporters of Nkunda. The former leader was subsequently arrested and imprisoned without charge after the 2009 coup, creating a division of loyalty within the CNDP. Several supporters of Nkunda objected to the new leadership, but still accepted positions in the Congolese army. HRW also stated that civilians and activists have also been exposed to human rights violations by intimidation and arbitrary arrests.

The warrant for Ntaganda's arrest was originally issued in 2006 but was not made public by the ICC [JURIST report] until 2008. The arrest warrant was issued under seal because "public knowledge of the proceedings in this case might result in Bosco Ntaganda hiding, fleeing, and/or obstructing or endangering the investigations or the proceedings of the Court," but ICC judges determined that those circumstances have since changed.




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Federal court hears opening statements in ex-Guantanamo detainee's civilian trial
Andrea Bottorff on October 13, 2010 12:04 PM ET

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[JURIST] The US District Court for the Southern District of New York [official website] on Tuesday heard opening statements in the first civilian trial of a former Guantanamo Bay [JURIST news archive] detainee. An attorney for Ahmed Khalfan Ghailani [GlobalSecurity profile; JURIST news archive] argued during the opening statements that al Qaeda took advantage of Ghailani's youth and that Ghailani was unaware [VOA report] of the terrorists' criminal plans. Ghailani faces criminal charges for his alleged role in the 1998 bombings of US embassies [PBS backgrounder] in Tanzania and Kenya, which killed 224 people. Along with the embassy bombing charges, Ghailani is charged with 286 separate counts including conspiring with Osama bin Laden and other members of al Qaeda to kill Americans anywhere in the world. He appeared in federal court [JURIST report] two weeks ago for jury selection and has been in custody at the Metropolitan Correctional Center [official website] in Manhattan since he was transferred to the US [JURIST report] in June 2009.

The start of Ghailani's trial was postponed last week when Judge Lewis Kaplan barred key US government witness [JURIST report] Hussein Abebe from testifying because his testimony was the product of statements made by Ghailani to the Central Intelligence Agency under duress. Ghailani's defense filed a motion to dismiss over the summer, saying he would not get a fair trial, but the court denied the motion [text, PDF; JURIST report] because "the government is entitled to attempt to hold Ghailani accountable in a court of law for his alleged complicity in the murder of 224 people and the injury of more than 1,000 others." US President Barack Obama [official profile] said last year in a speech on national security [JURIST report] that preventing Ghailani from coming to the US would prevent justice from being served. The announcement [JURIST report] that Ghailani would be tried in federal court came in May 2009 following the ordered review of all Guantanamo detainees pursuant to plans to close the detention facility [JURIST news archive].




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ICTR denies US lawyer immunity from Rwanda prosecution
Andrea Bottorff on October 13, 2010 11:22 AM ET

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[JURIST] The Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) [official website] released a decision [text, PDF] last week that allows the Rwandan government to pursue charges against US lawyer and JURIST Forum [website] contributor Peter Erlinder [professional profile; JURIST news archive]. In a reversal of a previous statement [JURIST report], the ICTR decided that Erlinger was charged for alleged actions committed outside the scope of his ICTR employment as a defense lawyer. Therefore, the Convention on Privileges and Immunities of the United Nations [text, PDF], a treaty to which Rwanda is a party that prevents legal action of any kind against UN employees working in an official capacity, does not apply, and Erlinder is not immune from the prosecution. Rwandan Justice Minister Tharcisse Karugarama praised the ICTR decision, emphasizing the country's reverence for the immunities treaty and announcing that Rwanda will continue with the prosecution [New Times report].

Erlinder returned to the US in June after spending 21 days in a Rwandan prison following his arrest [JURIST reports] on charges that he denied the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. Upon his return, Erlinder stated his belief that had he not requested to contact the US embassy shortly before his detention, he would not have survived [Star Tribune report]. He also said that he was on a reported hit list made up of the names of opponents to Rwandan President Paul Kagame [official website; BBC profile]. The High Court of Rwanda [GlobaLex backgrounder] a week earlier had released Erlinder on bail due to persisting medical problems from what Rwandan officials say was a suicide attempt [JURIST reports]. The court also required him to inform the court of his whereabouts and comply with future court orders.




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DOJ to appeal rulings striking down Defense of Marriage Act
Ann Riley on October 13, 2010 10:19 AM ET

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[JURIST] The US Department of Justice [official website] on Tuesday filed two notices of appeal [text, PDF; text, PDF] in the US District Court for the District of Massachusetts [official website], defending the federal Defense of Marriage Act (DOMA) [text; JURIST news archive]. The notices of appeal do not specify the DOJ's arguments in support of the law, which will eventually be heard by the US Court of Appeals for the First Circuit [official website]. In July, Judge Joseph Tauro ruled [JURIST report] that the DOMA definition of marriage as between a man and a woman is unconstitutional because it interferes with the states' right to define marriage. Tauro issued rulings in two separate cases challenging the DOMA: Gill v. Office of Personnel Management, filed by the Gay and Lesbian Advocates and Defenders (GLAD) [advocacy website] on behalf of seven same-sex couples married in Massachusetts, and Commonwealth of Massachusetts vs. Department of Health and Human Services. In the GLAD lawsuit, Tauro granted summary judgment [opinion, PDF] for the plaintiffs, holding that Section 3 of the DOMA violates equal protection principles embodied in the Fifth Amendment [text] because it denies many federal benefits to same-sex married couples. In the second case, filed by Massachusetts Attorney General Martha Coakley [official website], Tauro ruled [opinion, PDF] that Section 3 violates the state's right to define marriage under the Tenth Amendment [text].

The DOJ moved to dismiss [JURIST report] the Massachusetts lawsuit in November, stating that it is the policy of the government to support federal statutes as long as there is a reasonable argument in favor of their constitutionality. Massachusetts, the first state to recognize gay marriage, initiated the suit [JURIST report] against the federal government last July. The DOJ also sought to dismiss [JURIST report] the GLAD case on the basis that Congress has the authority to pass legislation defining marriage. The Obama administration has extended some federal benefits [JURIST report] to same-sex couples, including allowing domestic partners to be added to insurance programs, to use medical facilities, and to be included in family size and house allocation considerations. In June, Obama ordered executive agencies to expand [JURIST report] federal childcare subsidies and services and travel and relocation payments to the same-sex partners of federal employees and their children. The Obama administration has said DOMA is discriminatory but has maintained that it is nonetheless constitutional. In March, the District of Columbia joined Vermont, New Hampshire, Iowa, Connecticut, Massachusetts [JURIST reports], and the Coquille Indian Tribe [OregonLive report] in legalizing same-sex marriage [JURIST news archive], extending the full benefits available at the state level to same-sex spouses.




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France lawmakers vote to adopt controversial immigration bill
Ann Riley on October 13, 2010 9:12 AM ET

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[JURIST] The French National Assembly [official website, in French] on Tuesday voted 294-239 to adopt a controversial immigration bill [No. 542 text, in French; materials, in French] that would would strip criminals born in other countries of their French nationality if they have been convicted of violent crimes against police officers. The French Senate [official website, in French] will consider the bill [materials, in French], which would also deport EU citizens for crimes such as repeated acts of theft, aggressive begging, or illegally occupying land, in November. The National Assembly began considering [JURIST report] the immigration bill last month. Supporters argued that it would help decrease crime [WP report] in the country and give local authorities greater power to dismantle and evacuate illegal settlements. Human Rights Watch (HRW) [advocacy website] has criticized the bill, urging the French government to reject the proposal because it targets minority populations [press release], particularly the Roma [JURIST news archive]. Also on Tuesday, the National Assembly Judiciary Committee [official website, in French] established a Mission on French Nationality Laws [press release] to address issues faced by French nationals.

Last month, the European Commission (EC) [official website] warned France [JURIST report] that the country would face disciplinary proceedings and potential legal action if it did not follow EU regulations in its relations with Roma migrants. The warning stated that France needed to abide by the 2004 Directive on Free Movement [Directive 2004/38/EC materials] and incorporate it into its laws. Also in September, the EU Commissioner for Justice, Fundamental Rights and Citizenship Viviane Reding [official profile] threatened legal action [JURIST report] against France for its deportation of Roma, calling the intuitive "a disgrace." More than 100,000 people in 130 cities across France protested [JURIST report] the security policies of President Nicolas Sarkozy [official website, in French], including his decision to deport [JURIST reports] the illegal Roma. In August, the UN Committee on the Elimination of Racial Discrimination [official website] unveiled a review [JURIST report] of France's compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) [text], which raised questions about the controversial immigration legislation and the decision to dismantle 300 unauthorized Roma encampments.




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Federal judge orders military to suspend 'Don't Ask Don't Tell'
Daniel Richey on October 13, 2010 8:21 AM ET

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[JURIST] Judge Virginia Phillips of the US District Court of the Central District of California [official website] on Tuesday ordered [order, PDF] the US military to end enforcement of its controversial "Don't Ask, Don't Tell" (DADT) policy [10 USC § 654; JURIST news archive]. The order comes a little more than a month after the court declared the policy unconstitutional [opinion, PDF; JURIST report] after considering arguments by the Log Cabin Republicans (LCR) [advocacy website], the conservative gay activist organization that brought the suit [case materials; LCR backgrounder] in 2004. Following the ruling, the Department of Justice (DOJ) [official website] asked the court not to enforce its decision [JURIST report], arguing that the ruling was overbroad and that the military should be permitted time to implement a non-judicial solution to the issue. In Tuesday's ruling, the court acknowledged its obligation to show deference to congressional policy decisions and the policies of other branches of government, but stressed that "deference does not mean abdication" of its authority as it issued a permanent injunction against enforcement of "Don't Ask, Don't Tell" and ordered the military "immediately to suspend and discontinue any investigation, or discharge, or other proceeding" commenced under DADT prior to the judgment. In a bench memo [text, PDF] issued along with the order, Phillips said:
[The p]laintiff established at trial that the Don't Ask, Don't Tell Act irreparably injures servicemembers by infringing their fundamental rights and violating (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.... Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers' rights or to compensate them for violation of their rights.

In a press release [text] Tuesday, LCR said it "urges caution by servicemembers considering coming out at this time, as the Obama administration still has the option to appeal," but said that the organization is "extremely pleased" with the injunction.

Since its enactment in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of DADT. Last month, a federal judge for the US District for the Western District of Washington [official website] ordered [JURIST report] that a US Air Force officer be reinstated after being previous discharged under DADT. Also in September, the Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the policy. In May, the House of Representatives [official website] and the Senate Armed Services Committee voted to repeal the policy after President Barack Obama and Defense Secretary Robert Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness. Also in May, A CNN poll [results, PDF] released found that 78 percent of American adults believe that homosexuals should be able to serve openly in the military. In March, Gates announced changes to the enforcement [JURIST report] of the policy to make it more difficult to expel openly gay service members from the military.




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US government lifts deepwater drilling moratorium
Daniel Richey on October 13, 2010 7:17 AM ET

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[JURIST] US Interior Secretary Ken Salazar [official profile] announced Tuesday the end of a six-month moratorium [press release] on certain types of deepwater oil drilling some seven weeks ahead of schedule. In a letter [text, PDF] issuing the order to Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) [official website] director Michael Bromwich [official profile], Salazar said that new drilling regulations enacted earlier this month [JURIST report] and industry safety strategies developed in the wake of the Deepwater Horizon spill [JURIST news archive] have reduced the likelihood of future incidents such that the ban is no longer needed, a decision he reached after reviewing an October 1 report [text, PDF] from the BOEMRE showing significant advancements in blowout prevention and safety standards. Salazar said that, while he is satisfied with recent progress, efforts to tighten safety regulations on deepwater drilling operations would continue:
We have more work to do in our reform agenda, but at this point we believe the strengthened safety measures we have implemented, along with improved spill response and blowout containment capabilities, have reduced risks to a point where operators who play by the rules and clear the higher bar can be allowed to resume. The oil and gas industry will be operating under tighter rules, stronger oversight, and in a regulatory environment that will remain dynamic as we continue to build on the reforms we have already implemented.
As a precondition to resume drilling, the Department of the Interior (DOI) [official website] will require drillers to meet the new regulations and to sign a written commitment to implement superior blowout containment protections.

Last month, a federal judge denied [JURIST report] the government's motion to dismiss a lawsuit filed by several drilling companies challenging the offshore drilling moratorium. The judge held that there were "no substantial changes" between the July 12 directive and its predecessor, issued on May 28, that the new moratorium did nothing to amend or prevent the wrongs found in the first and that the wrongful behavior alleged in the original order could reasonably be expected to occur as a result of the more recent iteration. The US District Court for the Eastern District of Louisiana [official website] rejected a request to reinstate the May 28 ban in July, weeks after the US Court of Appeals for the Fifth Circuit similarly declined [JURIST reports]. The US Department of Justice (DOJ) [official website] originally asked the appeals court to stay the preliminary injunction [JURIST report] in June, on the basis that another deepwater spill could overwhelm the ongoing efforts to clean up the BP Deepwater Horizon oil spill with catastrophic results. Lawyers for the DOJ also claimed that the district judge abused his discretion in issuing the injunction.




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UN urges nations to assist Kenya in conducting piracy trials
Sarah Paulsworth on October 12, 2010 3:39 PM ET

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[JURIST] The UN Secretary-General's special adviser on maritime piracy [JURIST news archive] Jack Lang [official profile] called Tuesday for other nations to provide assistance to Kenya in conducting piracy trials. Kenya has expressed fears that it will become a dumping-ground for pirates and allowed an agreement for conducting piracy trials in Kenya to lapse [CNN report] last month. The UN is negotiating this matter with Kenya [Daily Nation report]. According to Lang, Kenya has received USD $4 million to date to upgrade its criminal justice system in return for agreements to prosecute suspected pirates there. Forty-three pirates have been prosecuted in Kenya, and many others are in custody in Mombasa, awaiting their trials.

Despite increased international efforts, Somali pirates continue to be a concern in the Gulf of Aden and the Indian Ocean. In late September, a court in the Somali state of Puntland sentenced a pirate to death [JURIST report] for murdering the skipper of cargo ship in June. Also last month, a Kenyan court convicted [JURIST report] seven Somali pirates and sentenced them to five years in prison. Earlier in September, a Kenyan court convicted [JURIST report] seven other Somali pirates, giving them the same five-year sentences. The maximum sentence under Kenyan law for piracy is life imprisonment, and the EU Naval Force Somalia (EU NAVFOR) [official website], a naval force that has been deployed to deal with the surge of piracy off the coast of Somalia, refuses to turn over suspects unless capital punishment is off the table. In July, a court in Seychelles convicted and sentenced [JURIST report] a group of Somali pirates to 10 years in prison following the attempted hijacking of Seychelles coastguard ship. In June, the UN announced the opening of a new high-security courtroom [JURIST report] in Kenya that will hear piracy cases. The announcement came after the UN announced $9.3 million in donations [JURIST report] to help fund piracy courts in Kenya and Seychelles.




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Supreme Court hears arguments on vaccine lawsuits
Jaclyn Belczyk on October 12, 2010 2:52 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in Bruesewitz v. Wyeth [oral arguments transcript, PDF; JURIST report] on compensation for injuries caused by childhood vaccines. The question is whether § 22(b)(1) [text] of the National Childhood Vaccine Injury Act of 1986, which expressly preempts certain design defect claims against vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings," preempts all vaccine design defect claims. The US Court of Appeals for the Third Circuit held [opinion, PDF] that the act preempts all design defect claims. Counsel for the petitioners argued that the Third Circuit's holding was in error for three reasons:
First, the court overlooked the numerous provisions of the Act protecting manufacturers from liability, but it did not expressly preempt design defect claims. Second, the court misconstrued the word "unavoidable" in section 22(b)(1)'s Federal law defense. And third, the court adopted a policy that exposes children to unnecessary safety risks.
Counsel for the respondents argued that Congress intended to preempt all design defect claims. Counsel for the US government argued on behalf of respondents as amicus curiae.

In Harrington v. Richter [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether a defense counsel's reliance on cross-examination in lieu of forensic evidence violates the client's Sixth Amendment right to effective assistance of counsel. Granting federal habeas corpus review, the US Court of Appeals for the Ninth Circuit found [opinion, PDF] in an en banc rehearing that Richter's counsel "failed to undertake the most elementary task that a responsible defense attorney would perform" by not presenting forensic analysis of a blood pool found at the scene of a murder Richter is accused of committing. A three-judge panel of the Ninth Circuit, the California Supreme Court, the California Court of Appeals, and the US District Court for the Eastern District of California had all previously rejected the application. Counsel for the petitioner argued that "the Ninth Circuit failed to give the State court decision the proper deference—indeed, double deference—it was owed. Counsel for the respondent argued that a different verdict could have been reached if there had been forensic analysis of the blood pool.

In Premo v. Moore [oral arguments transcript, PDF], the court heard arguments on whether the standard established in Arizona v. Fulminante [opinion text]—that erroneous admission of a coerced confession at trial is not harmless—applies if a collateral challenge is based on a defense attorney's decision not to move to suppress a confession prior to a guilty or no contest plea and whether that is clearly established under federal law. The Ninth Circuit reversed [opinion, PDF] the district court's decision to deny Moore's writ of habeas corpus. Counsel for the petitioner argued:

The court of appeals held that Arizona v. Fulminante was the clearly established Federal law to control and govern the outcome of this case. This was an error, because this Court has never applied Fulminante's direct appeal harmless error standard, which places the burden of proof on the government, to a collateral ineffective assistance of counsel claim, where the burden of proof is on the inmate.
Counsel for the respondent argued that the Ninth Circuit correctly established that Moore was prejudiced by the error.




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Uganda court dismisses treason case against opposition leader
Sarah Paulsworth on October 12, 2010 2:00 PM ET

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[JURIST] Uganda's Constitutional Court [official website] on Tuesday unanimously dismissed treason charges against opposition leader Kizza Besigye [JURIST news archive] and 10 co-defendants, ruling that there was insufficient evidence and that the state had violated the defendants' rights. Besigye had been charged [JURIST report] with plotting to forcefully overthrow the Ugandan government between 2001 and 2004 but had always maintained his innocence, calling the charges against him politically motivated. Prosecutors alleged that Besigye was affiliated with the People's Redemption Army (PRA) [NSAG backgrounder], which the Ugandan government says operates from eastern Democratic Republic of Congo (DRC). Tuesday's ruling will allow Besigye to continue with his candidacy [WSJ report] in the February 2011 presidential elections, in which he is the Inter-Party Cooperation coalition party's candidate. Besigye also ran for president [BBC report] in 2002 and 2006, and, prior to that, he was personal doctor to incumbent President Yoweri Museveni [official profile].

Besigye's trial resumed in June 2007 after a one-year delay [JURIST report]. In April 2007, Uganda's chief prosecutor Simon Byabakama Mugenyi told the court that files detailing the intelligence gathering efforts [JURIST report] against Besigye had been "misplaced." The existence of the PRA is disputed, and the Ugandan government has been accused of fabricating the group's existence to support its crackdown on political opponents. In March 2007, Ugandan judges went on strike [JURIST report] to protest an incident in which government security agents surrounded a courthouse, rearrested six opposition supporters who had been charged with treason but granted bail, and beat a defendant's lawyer unconscious. The incident also prompted lawyers to strike [JURIST report], and Museveni promised to implement more transparent procedures for making arrests [JURIST report].




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Supreme Court to rule on interviewing suspected child sex abuse victims
Jay Carmella on October 12, 2010 11:19 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday granted certiorari [order list, PDF] in six cases. In the consolidated cases of Camreta v. Greene [docket; cert. petition, PDF] and Alford v. Greene [docket; cert. petition, PDF], the court will decide how to apply the Fourth Amendment [text] to a child suspected of being sexually abused. The petitioners were co-defendants in a case involving a child who was temporary seized and interviewed regarding suspected abuse. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that, despite the fact that there was a violation of an individual's constitutional rights, the defendants were entitled to qualified immunity against the Fourth Amendment claims. The court will determine whether the Fourth Amendment requires a warrant, court order, parental consent or exigent circumstances in order to allow law enforcement and child welfare officials to conduct a temporary seizure and interview a child suspected of being sexually abused. In Camreta, the court will also address whether the Ninth Circuit's constitutional ruling is reviewable, notwithstanding that it ruled in the petitioner's favor on qualified immunity grounds.

In Bond v. United States [docket; cert. petition, PDF], the court will determine whether a criminal defendant, who has been convicted under a federal statute, has standing to challenge the conviction on grounds that the statute is beyond the federal government's enumerated powers and inconsistent with the Tenth Amendment [text]. The US Court of Appeals for the Third Circuit held [opinion, PDF] that Bond lacked standing to challenge the constitutionality of the statute on the basis of the Tenth Amendment. The appeals court added that claims that the statute is vague and overboard fall short and that Bond was appropriately punished for her offenses.

The court will also hear the case of Borough of Duryea v. Guarnieri [docket; cert. petition, PDF] to determine whether state and local government employees may sue their employers for retaliation under the Petition Clause of the First Amendment [text] when they petitioned the government on matters of private concern. The Third Circuit ruled [opinion, PDF] that government employees can sue their employers for retaliation under the First Amendment. The ruling was in direct contradiction to decisions by all 10 other federal circuits and four state supreme courts.

In DePierre v. United States [docket; cert. petition, PDF], the court will determine whether the term "cocaine base" encompasses every form of cocaine that is classified chemically as a base, which would mean that the same 10-year mandatory minimum sentence applies to offenses involving 50 to 500 grams of raw coca leaves or of the paste derived from coca leaves, or whether the term "cocaine base" is limited to "crack" cocaine. The US Court of Appeals for the First Circuit held [opinion, PDF] that the statute intends for the term "cocaine base" to include all forms of cocaine base, including, but not limited to, crack cocaine.

In Global-Tech Appliances, Inc. v. SEB S.A. [docket; cert. petition, PDF], the court will decide whether the legal standard for the state of mind element of a claim for actively inducing patent infringement under 35 USC § 271(b) [text] is "deliberate indifference of a known risk" to encourage an infringement. The US Court of Appeals for the Federal Circuit held [opinion, PDF] that is the correct legal standard. The petitioners contend that this was in error, due to the court's previous finding that "purposeful, culpable expression and conduct" to encourage an infringement is the appropriate standard.

Finally, the court will also hear the case of Madison County v. Oneida Indian Nation [docket; cert. petition, PDF]. The court will determine whether tribal sovereign immunity from suit bars taxing authorities from foreclosing to collect lawfully imposed property taxes and whether the ancient Oneida reservation in New York was disestablished or diminished. The US Court of Appeals for the Second Circuit found [opinion, PDF] that Oneida Indian Nation is immune.




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Ireland court finds no anti-piracy laws authorizing suspension of Internet service
Hillary Stemple on October 12, 2010 10:57 AM ET

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[JURIST] The Irish High Court [official website] ruled Monday that the country does not recognize any laws that would allow Internet services providers to suspend service to customers suspected of Internet piracy. The judgment was issued after the Irish recording industry attempted to have an injunction brought [Irish Times report] against broadband provider UPC [corporate website], requiring the company to suspend service to customers engaged in illegal music downloading [JURIST news archive]. UPC denied having direct knowledge [Irish Examiner report] of the illegal practice and said that they were merely a conduit for the activity. In his ruling, Justice Peter Charleton rejected UPC's claims and indicated that he did not accept UPC's evidence that they were unaware of the illegal process. He also noted the destructive effect [BBC report] that illegal downloading has on Ireland's music industry. Charleton indicated that if there were a legal basis for issuing the injunction he would have done so, but, because Irish law does not allow for the disconnection of service to suspected Internet pirates, issuing the injunction could be a breach of European law. Following the court's ruling, UPC stated that they do not condone Internet piracy, but that they should not be held responsible for content transmitted across their networks. A spokesperson for the Irish Recorded Music Association (IRMA) [trade association website], a music industry association involved with the lawsuit, indicated their disappointment with the ruling, stating that the Irish government has failed to protect the rights of copyright holders. IRMA also noted that they are considering appealing the ruling to the Irish Supreme Court or lobbying the government directly for changes to the country's anti-piracy laws.

Online piracy has assumed increasing importance in the eyes of legislators across Europe, and many countries have considered legislation that would allow the suspension of Internet services in order to deter internet piracy. In April, the UK Parliament [official website] approved legislation [text, JURIST report] authorizing the suspension of Internet service for those who repeatedly download copyrighted material illegally. The act also received Royal Assent [text] and is now law. The Digital Economy Bill calls on internet service providers (ISPs) to block download sites, reduce a user's broadband speeds, and ultimately shut down a user's internet access in order to prevent piracy of copyrighted materials. Last October, the French Constitutional Court approved a similar bill after the legislation was given final approval by the French Parliament [JURIST reports] the previous month. Under the French law, the government can send notices to Internet service providers to terminate an individual's internet access for up to one year after a third violation of intellectual property laws for downloading or sharing movies and music.




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Federal judge denies motion to dismiss suit challenging Arizona immigration law
Carrie Schimizzi on October 12, 2010 9:17 AM ET

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[JURIST] A judge for the US District Court in the District of Arizona [official website] on Friday denied [order, PDF] motions to dismiss a class action lawsuit [JURIST report] challenging the constitutionality of the controversial Arizona immigration law [SB 1070 materials; JURIST news archive]. Arizona Governor Jan Brewer (R) [official website] and Sheriffs Joe Arpaio and Paul Babeu had filed motions to dismiss the lawsuit claiming the plaintiffs, including the American Civil Liberties Union (ACLU) [advocacy website] lack standing under Federal Rule of Civil Procedure 12(b)(1) [text]. In denying the motions, Judge Susan Bolton ruled the case had merit to go forward and found the immigration law may violate both the Fourth and Fourteenth Amendments [texts]. Bolton did dismiss the plaintiffs' claim that the law violates portions of the First Amendment [text] and denied their request for an injunction against the law, citing the previous injunction already issued [JURIST report] in a separate lawsuit [JURIST report] brought by the US Department of Justice (DOJ) [official website]. The ACLU is joined in the lawsuit by several other rights groups including the NAACP, the Asian Pacific American Legal Center (APALC) and the Mexican American Legal Defense and Education Fund (MALDEF) [advocacy websites], as well as several individual plaintiffs. In a statement, the ACLU praised the decision [press release] saying, "today's order is an important first step in challenging this unconstitutional law. The civil rights coalition will continue its legal fight until all of SB 1070 is taken off the books."

This most recent lawsuit joins two others filed [JURIST report] earlier this year challenging the constitutionality of the Arizona law. The bill, signed into law [JURIST report] by Brewer in April, has caused intense controversy. In May, a group of UN human rights experts indicated the measure may violate international standards [JURIST report] that are binding on the US. Mexican President Felipe Calderon [official website, in Spanish] has strongly criticized [JURIST report] the new law, claiming that it opens the door to intolerance and hatred. US President Barack Obama also criticized the law [JURIST report], and called for federal immigration reform. Under the law, it is designated a crime to be in the country illegally, and immigrants unable to verify their legal status could be arrested and jailed for six months and fined $2,500.




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UK court begins inquests over 2005 London transit bombings
Zach Zagger on October 12, 2010 8:29 AM ET

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[JURIST] A UK court began inquests Monday into the July 2005 London transit bombings [JURIST report; JURIST news archive] that killed 52 people and injured 700 others. Lady Justice Hallett is presiding over the inquests [Guardian report] with the victims' families to determine whether each death was the result of an unlawful killing under British law. The main issue is whether some of the victims could have been saved if not for a delay in the response by emergency services due to confusion over what was happening during the bombings. Though there have been prior investigations, the inquests were the first time that the victims' families could hear the whole story. During the inquests it was revealed that the four suicide bombers—Mohammad Sidique Khan, Shehzad Tanweer, Hasib Hussain and Jermaine Lindsay—had originally planned to commit the bombings the day before, coinciding with the announcement that London was chosen to host the 2012 Summer Olympics. The purpose of the inquests [BBC report] is to find out what happened and determine what could have been done differently in both responding to and preventing the bombings.

The inquests were delayed five years by the police investigation and a criminal trial of three other men suspected of being involved. The three others were later acquitted of involvement in the bombings, but two of them were found guilty and sentenced on lesser charges [JURIST reports]. Last April, lawyers for victims of the July 7 bombings argued [JURIST report] in the Royal Courts of Justice that UK authorities possessed information that could have helped them prevent the attacks. The theory for the case is built on intelligence that British security service MI5 [official website] and the London police had uncovered about the four suicide bombers prior to the attacks. In 2008, The UK Court of Appeal rejected an appeal [JURIST report] by four men convicted for plotting a failed similar bombing [JURIST news archive] supposed to occur two weeks afterward on July 21, 2005.




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Hungary CEO arrested over deadly chemical spill
Matt Glenn on October 11, 2010 3:32 PM ET

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[JURIST] Hungarian Prime Minister Viktor Orban [official website, in Hungarian] announced Monday that police have arrested [press release, in Hungarian] Mal Rt [corporate website, in Hungarian; Reuters backgrounder] CEO Zoltan Bakonyi on criminal negligence charges for the company's role in last week's Akja chemical spill [CNN backgrounder]. Orban also announced an emergency law [MTI-ECO report] that was easily passed [Reuters report] allowing the government to take control of Mal Rt, which owned the plant from which the spill originated. The spill occurred last Monday [NYT backgrounder] when one of the plant's reservoirs cracked, releasing nearly 200 million gallons of toxic sludge, killing eight people, injuring hundreds more and causing environmental damage that some fear could take years to clean up. Police initiated their criminal investigation [JURIST report] last Wednesday. If convicted, Bakonyi faces up to 11 years [Bloomberg report] in prison.

Companies have been charged with criminal negligence in the context of other chemical spills in the past, the most notable of which are in relation to the 1984 Bhopal chemical spill disaster [BBC backgrounder]. In August, the Indian Supreme Court announced that it will reconsider [JURIST report] a 1996 ruling allowing former employees of US chemical producer Union Carbide accused in relation to the 1984 chemical spill to be charged with negligence instead of culpable homicide. Seven men were convicted in June [JURIST report] on charges of "death by negligence" and sentenced to two years in prison and ordered to pay USD $2,100. The convictions were the first related to the Bhopal disaster in which nearly 3,800 people were killed when toxic gas was accidentally released in the middle of the night by a chemical plant owned by a Union Carbide subsidiary company. Upwards of 15,000 others later died from exposure to the gas, and 50,000 were left permanently disabled.




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France authorities arrest DRC war crimes suspect under ICC warrant
Matt Glenn on October 11, 2010 2:06 PM ET

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[JURIST] French authorities have arrested alleged Democratic Forces for the Liberation of Rwanda (FDLR) [GlobalSecurity backgrounder] leader Callixte Mbarushimana under a warrant from the International Criminal Court (ICC) [official website], the ICC announced [press release] Monday. The court charged Mbarushimana, a former UN employee, with five counts of crimes against humanity and six counts of war crimes for acts committed by the FDLR in the Democratic Republic of Congo (DRC) [BBC backgrounder; JURIST news archive] in 2009. Specific accusations include, among other things, murder, torture, rape and attacks against civilians. The ICC stated that evidence supported the idea that Mbarushimana, in his role as Executive Secretary of the FDLR, "has personally and intentionally contributed to a common plan of conducting attacks against the civilian population in order to create a 'humanitarian catastrophe' and to launch an international campaign to extort concessions of political power for the FDLR." The ICC Office of the Prosecutor alleged [press release]:
In 2009, the FDLR leadership decided to attack civilians in the North and South Kivu provinces [of the DRC] in order to create a massive humanitarian catastrophe; the FDLR then tried to blackmail the international community and to extort concessions of political power, in exchange for ending the atrocities. As a result of this deadly blackmail, victims were killed, raped, and forcibly displaced, and entire villages were razed to the ground.
ICC Chief Prosecutor Luis Moreno Ocampo [official profile] called the arrest "an opportunity to finally demobilize the group led by the former genocidaires" who fled to the DRC after the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive].

Last week, UN peacekeepers and DRC forces arrested [JURIST report] rebel group Mai Mai Cheka [GlobalSecurity backgrounder] leader Lieutenant Colonel Sadoke Kokunda Mayele for allegedly leading mass rapes [JURIST news archive], along with the FDLR and other rebel groups, in the DRC in late July and early August. Earlier this month, the UN released a report on war crimes [text, PDF; JURIST report] and human rights abuses in the DRC. The report, originally expected to be released in September [JURIST report], lists 617 of the most serious violations of human rights, including violence against children, genocide and mass rape, committed between 1993 and 2003. Last month, the UN Security Council [official website] issued a statement condemning the recent mass rapes [text; JURIST report] and calling for justice for the victims. Also last month, the UN Special Representative for Sexual Violence in Conflict called for perpetrators of mass rapes, including heads of DRC militias, to face war crimes charges [JURIST report]. In 2008, Mbarushimana was arrested by German border police [JURIST report] as he attempted to travel to Russia on charges that he killed 32 people during the Rwandan genocide. In 2005, the UN asked France to bring genocide charges [JURIST report] against Mbarushimana, who was then in the country under refugee status. Carla Del Ponte, the former chief prosecutor for the International Criminal Tribunal for Rwanda [official website], refused to charge him and said the ICTR did not file an indictment against Mbarushimana because it lacked sufficient evidence against him.




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International protests urge abolishment of death penalty
Ann Riley on October 11, 2010 1:46 PM ET

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[JURIST] The World Coalition Against the Death Penalty on Sunday marked the 8th World Day against the Death Penalty [advocacy websites], specifically urging the US, Iran and China to end the death penalty [press release]. French Foreign Minister Bernard Kouchner [BBC profile] encouraged all countries that still embrace the death penalty [JURIST news archive] to abolish it and set up a moratorium [AFP report] on executions and death sentences. In May, the World Coalition participated in the launch [press release] of the UN death penalty report [text, PDF] by the UN Commission on Crime Prevention and Criminal Justice [official website]. Despite the continued use of the death penalty in some countries, there is a growing movement toward international abolition. Earlier this year, Amnesty International (AI) [advocacy website] reported [JURIST report] the number of countries using the death penalty dropped [report, PDF] in 2009. According to the report, more than 700 people were executed last year in 18 countries, with the most executions carried out in Iran, Iraq, Saudi Arabia and the US. AI's figures exclude the estimated thousands of executions conducted in China [press release], where the government refuses to release death penalty statistics. For the first time since AI started publishing its report, there were no executions in Europe for the year. More than two-thirds of the world's countries have abolished the death penalty in law or in practice.

Last month, a Chinese lawmaker said that the National People's Congress [official website, in Chinese] did not consider removing [JURIST report] the death penalty as a punishment for corruption during the consideration of an amendment to the criminal code. Earlier this year, the Supreme People's Court of China [official website, in Chinese] issued new guidelines for limiting capital punishment [JURIST report] in Chinese courts. In August, Capital punishment advocates in Switzerland began collecting signatures in support of a referendum [text, in German; JURIST report] to reinstate the death penalty for those convicted of murder. In March, Taiwanese Justice Minister Wang Ching-feng [official profile] resigned in defense of her position against the death penalty [JURIST report]. Though Taiwan has not executed a criminal since 2005, Wang said she would not sign the execution warrants of any of the 44 prisoners still on death row. Last month, a South Korean high court ruled that the death penalty does not violate the South Korean constitution [JURIST report]. The court's decision could lead to a reinstatement of the death penalty in South Korea, which has held an unofficial moratorium on capital punishment since 1998. Earlier this year, Mongolian President Elbegdorj Tsakhia [official profile] announced that he would suspend the death penalty [JURIST report] and commute the sentences of all prisoners currently on death row to 30 years in prison. UN Under-Secretary-General Sergei Ordzhonikidze [official profile] has praised the increase in the number of countries [JURIST report] that have suspended or abolished the death penalty. Speaking at the 4th World Congress Against the Death Penalty [FIDH backgrounder] in Geneva last month, Ordzhonikidze expressed hope that countries that have not abolished the death penalty would adopt the 2007 UN Resolution 62/149 [text], placing a moratorium on the use of capital punishment.




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Serbia appeals court overturns war crimes conviction of Bosnia officer
Ann Riley on October 11, 2010 1:27 PM ET

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[JURIST] The Belgrade Appeals Court on Monday overturned the war crimes conviction of former Bosnian officer Ilija Jurisic and ordered a retrial. The court reasoned that September 2009 proceedings in the War Crimes Chamber [HRW backgrounder] of the Belgrade District Court provided insufficient evidence [AP report], releasing Jurisic and overturning his 12-year prison sentence. Jurisic, accused of coordinating an attack against a Serb-led Yugoslav Peoples' Army (JNA) convoy during the Bosnian civil war [JURIST news archive], was originally found guilty [press release] of violating Article 148 of the Socialist Federal Republic of Yugoslavia (SFRY) Criminal Act [text] for using means of warfare prohibited by international law. As the former head of the Operational Group of the Tulza-based Public Security Center, Jurisic allegedly ordered open fire on a JNA convoy of soldiers, which was in the process of peacefully withdrawing from Tulza, killing at least 51 and wounding 50 soldiers. Jurisic has been in custody since he was arrested [press release] in Belgrade in 2007 and denies all charges against him.

Serbia has undertaken an ongoing effort to apprehend those responsible for the atrocities that occurred in the region over the last two decades. Last month, the War Crimes Chamber sentenced [press release, PDF; JURIST report] former paramilitary officer Zeljko Djukic [JURIST news archive] to 20 years in prison for his involvement in the deaths of 14 civilians in March 1999 during the 1998-1999 Kosovo war [BBC backgrounder; JURIST news archive]. In August, Croatian authorities extradited Sretko Kalinic to Serbia for his alleged connection with the 2003 assassination [JURIST reports] of former Serbian prime minister Zoran Djindjic [BBC obituary; memorial website, in Serbian]. In July, an extradition hearing [JURIST report] for former Bosnian president Ejup Ganic began in London to determine whether the former leader should be forced to face trial in Serbia for alleged war crimes. In April, Swedish police arrested a Serbian man [JURIST report] suspected of committing war crimes in the Kosovo village of Cuska during the war. In March, a spokesperson for Serbia's Office of the War Crimes Prosecutor announced the arrest of nine individuals [JURIST report] suspected of being members of the Serbian paramilitary group Sakali and accused of the systematic murders of 41 ethnic Albanians in May 1999. The continuing attempt to find all individuals responsible for the atrocities has created a new political tension [JURIST comment] in the region that will not soon go away.




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Philippines high court upholds controversial anti-terror law
Carrie Schimizzi on October 11, 2010 9:32 AM ET

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[JURIST] The Supreme Court of the Philippines [official website] on Friday unanimously upheld the constitutionality of the controversial Human Security Act (HSA) 2007 [text, PDF], ruling the petitioners lacked legal standing to challenge the law because it had not caused them any actual damage. In its decision, the court noted that law enforcement officers' reluctance to enforce the law [JURIST report] means it has had no real effect on the civil liberties of militant groups. The controversial act, signed [JURIST report] in 2007 by then-president Gloria Arroyo, authorizes the 72-hour detention of suspects without charge and allows for surveillance, wiretapping and seizure of assets. On the other hand, it says that officers who perform an unauthorized wiretap or violate the rights of a detainee could face up to 12 years in prison. Critics of the legislation were concerned it could be used by the government to stifle political dissent under the cover of anti-terror operations. Jigs Clamor, Secretary General for petitioner National Alliance for Human Rights in Philippines [official website], said the ruling will only increase human rights violations [press release] "If violations were rampant even before the SC ruling, then it would definitely worsen with a strengthened legal framework by which state authorities could suppress civil and political liberties. This is paving way for more violation of human rights." The petitioners had asked the court to grant a temporary restraining order against enforcement of the law pending the case outcome. They are expected to appeal the ruling.

Even before the controversial law went into effect [JURIST report], there was substantial opposition to the legislation. In March 2007, UN human rights expert Martin Scheinin recommended that the act be amended or repealed [JURIST report]. Also that year, the Catholic Bishops Conference of the Philippines urged the government to revisit the act [JURIST report], saying that "many voices are apprehensive" about the anti-terror legislation. In response to criticism, Filipino presidential spokesperson Ignacio Bunye said that the law had already undergone "exhaustive debates" in the legislature [JURIST report]. The government also announced plans for a "massive public information and advocacy campaign" [press release] to accompany implementation and highlight "the existence of terror cells in the region and throughout the world."




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Greece police officers found guilty in shooting death that sparked protests
Carrie Schimizzi on October 11, 2010 8:57 AM ET

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[JURIST] Two Greek police officers accused in the shooting death [JURIST news archive] of 15-year-old Alexis Grigoropoulos [BBC report], which sparked violent demonstrations and riots in 2008, were found guilty Monday and sentenced to prison. A panel of judges and jurors found Officer Epameinonta Korkonea guilty of intentional murder [Ta Nea report, in Greek] and sentenced him to a term of life imprisonment plus 15 months. Officer Basil Saralioti was convicted of the lesser charge of complicity and sentenced to 10 years in prison. Throughout the nine-month trial, both officers contended they did not intend to kill [BBC report] Grigoropoulos and that a stray bullet struck him after Korkonea fired a warning shot. Reports indicated that Grigoropoulos and other youth were throwing stones at a police car and that the police believed he was throwing explosives. Both officers are expected to appeal the verdicts.

The shooting death has been a source of civil unrest in Greece since 2008. Last year, Greek police [official website, in Greek] conducted raids [JURIST report] in Athens in an effort to avoid a repeat of violent protests on the anniversary of the controversial police shooting. More than 6,000 officers spread across the city, arresting more than 150 people for throwing rocks or vandalism. In March 2009, Amnesty International [advocacy website] said that Greek authorities were not doing enough to ensure that the nation's police respect human rights [JURIST report] and urged the government to investigate and address "long-standing problems of policing." Earlier that month, the Greek government said that it would revamp its police force [JURIST report] in light of the riots. The Greek police have been accused of being both ineffective and unnecessarily violent [JURIST op-ed] in their response to the protests.




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Iraq court acquits 2 men accused of killing British soldiers
Erin Bock on October 10, 2010 5:07 PM ET

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[JURIST] An Iraqi court on Sunday acquitted two men accused of killing six British soldiers in Basra in 2003. The court ruled that it had insufficient evidence [Al Jazeera report] to prosecute Hamza Hateer and Mussa Ismael al-Fartusi for their participation in the "Red Cap murders" [Guardian backgrounder]. The incident involved a mob of 400 people attacking a police station staffed with members of the Royal Military Police [official website], who were tasked with training local Iraqi police forces after the fall of Saddam Hussein [JURIST news archive]. The court made the determination after hearing testimony from eight current or retired Iraqi police officers. The officers admitted that they did not directly witness the killings. One witness indicated that he saw Hateer steal a policeman's rifle. The lawyer for the accused me stated that al-Fartusi would be freed, but Hateer would still face charges for the alleged theft.

Last month, Iraqi Deputy Justice Minister Busho Ibrahim disclosed that a man convicted [JURIST report] of the 2004 kidnapping and murder of British aid worker Margaret Hassan [JURIST news archive] escaped custody [JURIST report] in September 2009. Ali Lutfi Jassar al-Rawi escaped from Abu Ghraib [JURIST news archive], where he was serving a life sentence. Authorities have postponed a hearing of his appeal and may try al-Rawi in absentia if he is not found. In August, UN Secretary-General Ban Ki-Moon [official website] called for Iraq's political leaders to adopt a "higher sense of urgency" [JURIST report] to form a new government, warning that further delays could create more instability. The country has been in disagreement over who has the authority to build the new government since holding elections [JURIST report] earlier this year. The Iraqi Supreme Court ratified the final results [JURIST report] of the country's March parliamentary elections, officially confirming a narrow victory for the secular Iraqiya alliance, led by Iyad Allawi.




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Israel Cabinet approves changes to citizenship oath
Erin Bock on October 10, 2010 4:20 PM ET

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[JURIST] The Israeli Cabinet [official website] approved an amendment [press release] Sunday to the country's Citizenship law [UNHCR backgrounder] that would require those seeking citizenship to pledge allegiance to Israel as a "Jewish and democratic state" and promise "to honor the laws of the state." The amendment was approved by a vote of 22-8. Defense Minister Ehud Barak [official profile] submitted a proposal that the words "in the spirit and principles of the Declaration of Independence" also be added to the oath, and this proposal was submitted for discussion by the Ministerial Committee on Legislation. The amendment will officially be entered into law if it is approved by a majority in the Knesset [official website], Israel' parliament, and once the Israeli Supreme Court [official website, in Hebrew] confirms the language of the law does not conflict with any current laws. At the outset of the discussion, Prime Minister Benjamin Netanyahu [official website] expressed his support and emphasized the importance of equal rights in a democratic state:
The State of Israel is the national state of the Jewish People and is a democratic state in which all its citizens—Jewish and non-Jewish— enjoy fully equal rights. The combination of these two lofty values expresses the foundation of our national life and anyone who would like to join us needs to recognize this. …Where else in the Middle East can Jews and non-Jews live safely with fully equal rights other than in Israel? Democracy and equal civil rights for all citizens, Jews and Arabs, are the soul of Israel.
Arab politicians allege the amendment is a tool [Al Jazeera report] to "undermin[e] the rights of the country's Arab minority." Critics also state the amendment has increased tension with the Palestinians, who see the new wording as "an effective renunciation" of Palestinian refugees' Right of Return [Al-Awda backgrounder] and call the oath "undemocratic" [ACRI statement]. Labor ministers have alleged the amendment is a payoff [Haaretz report] for support to extend a settlement building ban in the West Bank.

The Cabinet rejected a proposal [JURIST report] to include language declaring allegiance to a "Jewish, Zionist and democratic" Israel in 2009. Last week, an Israeli district court rejected [JURIST report] Irish Nobel Peace Prize winner Mairead Maguire's request to gain entry into the country. The ban stems from Maguire's presence on the MV Rachel Corrie when it attempted to deliver aid supplies to the blockaded Gaza Strip [BBC backgrounder] in June. One week earlier, Israeli forces raided [JURIST news archive] several Turkish ships, leaving nine civilians dead. In August, the Turkish Foreign Ministry [official website] announced that it will conduct an investigation [JURIST report] into the incident. The announcement came days after Netanyahu testified [JURIST report] before a civilian commission that Israel did not violate international law. A senior Israeli official announced in July that his government would not cooperate [JURIST report] with an investigation into the incident conducted by the UN Human Rights Council (UNHRC) [official website], but will comply with a separate UN investigation created under the authority of UN Secretary General Ban Ki-moon [official website]. Earlier in July, an Israeli military probe found that the raid lacked sufficient intelligence and planning [JURIST report], but also concluded that no punishments were necessary.




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UN war crimes tribunals request additional resources from General Assembly
Daniel Richey on October 10, 2010 2:42 PM ET

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[JURIST] Representatives from the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) appeared before the UN General Assembly (UNGA) [official websites] on Friday to request additional financial resources [press release] and institutional support on behalf of the various war crimes tribunals. The ICTY and the ICTR, founded by the UN in early 1990s to try individuals responsible for genocide in the former Yugoslavia and Rwanda, respectively, as well as the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website], have all significantly outlived their expected lifespans. As a result, the tribunals are encountering budget shortfalls and delays that have led to staff attrition and other administrative roadblocks. In the case of the ECCC, the court was expected to require only $56 million over three years to achieve its mission, but recent estimates suggest a cost of more than triple the original budget as the tribunal heads into its fifth year of operation. Addressing the UNGA, ICTY President Judge Patrick Robinson emphasized the accomplishments of the courts, and said that the Assembly cannot afford to budget them as if they were administrative bodies. He added:
[T]he Tribunal is not an administrative body. It is a court of law, and as such it will always be prone to a certain degree of unforeseeability, which is a natural element in most kinds of judicial work, and particularly in trials as complicated as those at the Tribunal. The Tribunal cannot be wound up as though it were a bakery producing bread. It can only be wound up properly with appropriate sensitivity to the judicial character of its work.
Byron stated that, although the courts have made "significant progress," their efforts have been severely constrained by staff turnover. "Experienced staff continue to leave the Tribunal at an alarming rate" in favor of similar organizations that can offer longer-term employment contracts, he said.

In September, the ICTY announced that the genocide trial of Radovan Karadzic [case materials; JURIST news archive] could take another four years [JURIST report] to complete. Also in September, members of the Cambodian government and the UN met with officials for 30 countries [JURIST report] seeking additional funding for the ECCC as the tribunal faced budget shortfalls of $7.4 million and $39 million for 2010 and 2011. That same week, current and former international prosecutors signed the fourth Chautauqua Declaration [text, PDF] praising recent advances in international law and urging countries to continue supporting the international courts [JURIST report] in order to maintain the spirit of the Nuremburg Principles [text]. The prosecutors, who have worked with the ICTY, the International Criminal Court (ICC), the Special Court for Sierra Leone (SCSL) [official websites], the ICTR and the ECCC, as well as the International Military Tribunals, called for continued support and funding of the tribunals as they continue working to maintain the international rule of law. They urged countries to fulfill their obligations under international law by investigating and prosecuting, or transferring to the appropriate court, suspects who violate international criminal law, including sitting heads of state.




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Bolivia president signs controversial anti-racism bill into law
Daniel Richey on October 10, 2010 12:10 PM ET

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[JURIST] Bolivian President Evo Morales [official profile, in Spanish; BBC profile] signed a controversial bill [text, PDF; in Spanish] into law Friday that permits the government to punish media outlets for publishing racist content. Under the new law, the government can fine or even revoke [Reuters report] the media licenses of newspapers and other media that publish content it deems to be discriminatory, particularly toward the nation's majority Indian population. The law was widely protested [JURIST report] by Bolivian media outlets earlier this week, which responded [Los Tiempos report, in Spanish] to Morales' endorsement of the speech constraints by printing the message "There is no democracy without freedom of expression" on their front pages. The country's largest journalists union has refused to participate [Los Tiempos report, in Spanish] in the drafting of the regulations for the new law.

The legislation comes as part of a wider campaign by Morales to advance the interests of the majority indigenous community, which has been a theme of his presidency [JURIST report]. In June, the Bolivian National Congress approved [JURIST report] legislation [text, PDF; in Spanish] that will create an independent justice system for indigenous communities. The Law of Judicial Authority is attempting to create a system of "communal justice" that would expedite the settlement of disputes and end the colonization of justice, according to supporters. Opponents in congress criticized the bill as a way in which to get more people from the indigenous population on the courts, regardless of merit. In March 2009, Morales began redistributing land to indigenous farmers under power given to him by the country's new constitution [text, in Spanish]. Bolivia's new constitution went into effect [JURIST report] in February 2009, after being approved [JURIST report] by national referendum the previous month with a 59 percent majority. It is intended to place more power in the hands of the country's indigenous, remove traditional colonial elites from power and challenge US influence. It also creates seats in Congress for minority indigenous groups.




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Federal appeals court rejects Guantanamo detainee information release request
Daniel Makosky on October 9, 2010 4:39 PM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] ruled [opinion, PDF] Wednesday that governmental interests in the protection of sensitive information supersede a detainee's request for its disclosure. The decision overturns the district court's earlier finding in favor of Guantanamo Bay [JURIST news archive] detainee Djamel Ameziane [advocacy materials], who claims to have been subjected to torture [AP report] and is seeking release. In a heavily redacted opinion, the court found that insufficient deference had been paid to the government's assertions that releasing the materials would compromise national security and foreign policy interests.

Ameziane is also awaiting the outcome of a complaint filed against the US [JURIST report] in August 2008 before the Inter-American Commission on Human Rights (IACHR) [official website], which alleges that he has been tortured, given inadequate medical treatment and denied other basic rights. The complaint contends that Ameziane's treatment violates conditions of the American Declaration of the Rights and Duties of Man [materials] and that he has been denied timely review of his habeas corpus petition by the US, despite the US Supreme Court ruling in Boumediene v. Bush [opinion text; JURIST report] that detainees have the right to bring such petitions.




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Families of Israeli flotilla raid victims request formal ICC investigation
Sarah Paulsworth on October 9, 2010 3:50 PM ET

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[JURIST] Family members of Turkish activists killed during Israel's raid of a Gaza-bound flotilla [JURIST news archive] in May have sent a request to the International Criminal Court (ICC) [official website] for a formal investigation into the incident. The families submitted the request on behalf of nine Turkish activists and one American activist who were killed during the raid [Guardian report] on the Mavi Marmara, one of the ships traveling in the flotilla. In a letter to ICC chief prosecutor Luis Moreno-Ocampo [official profile], the families held that there is overwhelming evidence of international law violations and urged the prosecution of those responsible. According to a report [text, PDF] released [JURIST report] in September by the UN Human Rights Council (UNHRC) [official website], Israeli forces committed several international law violations during the raid, including violations of the International Covenant on Civil and Political Rights (ICCPR) and the Fourth Geneva Convention [texts]. A spokesperson for the Israeli Ministry of Foreign Affairs [official website] responded to the report [press release] by calling the mission's approach "biased, politicized and extremist." The spokesperson indicated that Israel will not cooperate with the commission, but will "read and study the report." Although Israel and the Palestinian territories are not party to the Rome Statute [text], lawyers for the victims say that court has jurisdiction due to the involvement of Turkey and the fact that the Mavi Marmara was sailing under the flag of the Comoros Islands.

The Turkish Foreign Ministry [official website] recently submitted findings from its own investigation [JURIST report] to the UNHRC for consideration in the report. In July, an Israeli military probe into the incident found insufficient intelligence and planning of the raid, but concluded that no punishments were necessary [JURIST report]. Israel also established a civilian commission [JURIST report] in June to investigate its response. Israeli Prime Minister Benjamin Netanyahu [official website] testified before the civilian commission [JURIST report] in August and expressed confidence that the commission would find Israeli actions to be in compliance with international law, explaining the Israeli response to the flotilla in the context of the ongoing conflict between Israel and Hamas. The incident took place on May 31 when Israeli forces raided six ships attempting to deliver more than 10,000 tons of aid to Gaza.




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Canada high court rules no right to counsel during interrogation
Daniel Makosky on October 9, 2010 2:51 PM ET

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[JURIST] The Supreme Court of Canada [official website] ruled [judgment text] 5-4 Friday that Canadians do not have the right to have counsel present during custodial interrogations. The court held that § 10(b) of the Charter of Rights and Freedoms [text], which states that those under arrest have the right "to retain and instruct counsel without delay and to be informed of that right," is typically satisfied once the suspect is advised of the right and, if invoked, permitted "reasonable opportunity to consult counsel." The court went on to to say, however, that the charter does not extend so far as to necessitate counsel's presence for the duration of the interview. Writing for the majority, Chief Justice Beverley McLachlin and Justice Louise Charron [official profiles] declined to adopt an interpretation akin to the US Supreme Court ruling in Miranda v. Arizona [text], which affords suspects the right to effectively discontinue an interrogation by requesting counsel at any time, stating:
While the police must be respectful of an individual's Charter rights, a rule that would require the police to automatically retreat upon a detainee stating that he or she has nothing to say would not strike the proper balance between the public interest in the investigation of crimes and the suspect's interest in being left alone.
The court found, however, that suspects may again invoke their § 10(b) right in the event that the circumstances of the investigation warrant renewed legal consultation. Such circumstances may include the introduction of new evidence, filing of additional charges or belief that the previously received advice is flawed.

The case, Trent Terrence Sinclair v. Her Majesty the Queen [case materials], came to the court on appeal from the Court of Appeal for British Columbia [official website], which had ruled similarly. The case arose from Sinclair's prosecution for a November 2002 murder, for which he was arrested the following month. Following his arrest and during the interview, Sinclair was advised of his right to counsel and spoke with a lawyer twice by phone before indicating that he did not wish to continue speaking with police and again requesting his lawyer. Sinclair was advised that he may remain silent, but that he could not insist on his lawyer's presence. He later made inculpatory statements, agreed to participate in a reenactment of the crime and was convicted of manslaughter. In 2005, the Supreme Court of Canada ruled [JURIST report] that officers do not have to inform individuals of their right to counsel at DUI checkpoints, a policy also upheld under US law.




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Accused Russia arms dealer appeals US extradition in Thailand court
Sarah Paulsworth on October 9, 2010 2:23 PM ET

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[JURIST] Accused Russian arms dealer Viktor Bout [BBC profile; JURIST news archive] on Friday filed an appeal challenging the Bangkok Criminal Court's decision to dismiss [JURIST report] money laundering and fraud charges against him, which removed obstacles to his US extradition. According to Bout's lawyer Lak Nitiwatanavichan, the arms dealer is now seeking to have these charges reinstated [Bangkok Post report] to avoid extradition to the US. In August, an appeals court in Thailand ruled that Bout can be extradited [JURIST report] to the US to face charges [indictment, PDF] including conspiracy to kill US nationals and conspiracy to provide material support to a terrorist group. The court's ruling overturned a decision it issued a year earlier, refusing to extradite Bout [JURIST report] on the basis that the accusations made by the US were not cognizable under Thai law. According to the August ruling, Bout must be extradited by November 20 [AP report] to the US or be released.

Bout's situation has created political tension for Thailand. Russia has shown strong support for Bout, claiming that he is an innocent businessman, while the US is seeking to prosecute him for supporting terrorism. Last week, Thai Prime Minister Abhisit Vejjajiva [official website, in Thai; BBC profile] said that, although the case must work its way through the court system, he will make the final decision [AP report] as to whether Bout will be extradited to the US. Lawyers for Bout argue that his safety would be in jeopardy in the US and that he would be unable to receive a fair trial. If convicted in a US court, Bout could be sentenced to life in prison. Bout has been in Thai custody since he was arrested [Interpol press release] in a joint operation carried out by US and Thai authorities in which Bout allegedly sought to sell arms to Revolutionary Armed Forces of Colombia (FARC) [CFR backgrounder].




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China dissident Liu Xiaobo wins 2010 Nobel Peace Prize
Zach Zagger on October 8, 2010 4:02 PM ET

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[JURIST] Chinese human rights activist Liu Xiaobo [BBC profile; JURIST news archive] was announced Friday as the winner of the 2010 Nobel Peace Prize [press release], "for his long and non-violent struggle for fundamental human rights in China." Liu has been one of China's most prominent dissidents. He spent two years in prison following the Tiananmen Square [BBC backgrounder] uprising, has long challenged China's one-party rule and co-authored Charter 08 [text], a petition calling for political reforms in the country. He is currently serving an 11-year prison sentence [JURIST report] in China for inciting subversion. US President Barack Obama, last year's award recipient, praised the Nobel Committee's decision and called on China to release Liu [statement]:
By granting the prize to Mr. Liu, the Nobel Committee has chosen someone who has been an eloquent and courageous spokesman for the advance of universal values through peaceful and non-violent means, including his support for democracy, human rights, and the rule of law. ... We call on the Chinese government to release Mr. Liu as soon as possible.
Chinese Ministry of Foreign Affairs [official website, in Chinese] spokesperson Jiang Yu denounced the decision [press release, in Chinese], calling it "contrary to the purpose of the Nobel Prize." Chinese authorities have censored the announcement [CNN report], blocking internet searches and international broadcasts about it and even turning off phones of people who text messaged the news.

In February, a Chinese appeals court upheld [JURIST report] Liu's 11-year prison sentence despite calls for his release from US and EU officials. Liu was tried [JURIST report] in December on subversion charges in a trial that lasted only two hours and was closed to foreign diplomats. Liu was formally arrested in June and charged [JURIST reports] in December, but he has been in detention since December 2008, shortly before the petition's release. In June 2009, rights groups marked the twentieth anniversary of the 1989 uprising in Beijing's Tiananmen Square, calling for the government to investigate the incident [JURIST report] and implement changes called for by Charter 08.




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Europe Parliament votes not to ban deepwater drilling
Matt Glenn on October 8, 2010 2:11 PM ET

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[JURIST] The European Parliament [official website] voted Thursday to support increased government scrutiny [resolution text] of deepwater drilling off Europe's coasts, but voted not to ban the practice as the Environmental Committee had urged [press release]. The resolution [AFP report], passed in response to April's Deepwater Horizon oil spill [BBC report; JURIST news archive] in the Gulf of Mexico calls on the European Commission (EC) [official website] to review current laws and procedure to prevent similar accidents and increase Europe's preparedness to deal with a similar disaster. The resolution also urges the EC to ensure that all liability for any pollution from drilling lies with the polluter. On October 13, EC Energy Commissioner Guenther Oettinger [official website] is expected to propose a temporary moratorium [Reuters report] on offshore drilling until the EC has a chance to study the effects of the Deepwater Horizon spill and decide which changes, if any, Europe should make in its safety requirements.

Last week, US Secretary of the Interior Ken Salazar [official profile] announced new drilling guidelines [JURIST report] designed to increase safety and reduce the likelihood of another catastrophic oil spill. Last month, a federal judge denied [JURIST report] the government's motion to dismiss a lawsuit filed by several drilling companies challenging the latest offshore drilling moratorium. The ruling held that there were "no substantial changes" between the July 12 directive and its predecessor, issued on May 28, that the new moratorium did nothing to amend or prevent the wrongs found in the first and that the wrongful behavior alleged in the original order could reasonably be expected to occur as a result of the more recent iteration. The US District Court for the Eastern District of Louisiana [official website] rejected a request to reinstate [JURIST report] the May 28 ban in July, weeks after the US Court of Appeals for the Fifth Circuit [official website] similarly declined [JURIST report]. The US Department of Justice (DOJ) [official website] originally asked the appeals court to stay the preliminary injunction [JURIST report] in June, on the basis that another deepwater spill could overwhelm the ongoing efforts to clean up the BP Deepwater Horizon oil spill with catastrophic results. Lawyers for the DOJ also claimed that the district judge abused his discretion in issuing the injunction.




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Ninth Circuit upholds Washington ban on felon voting
Brian Jackson on October 8, 2010 1:16 PM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Thursday upheld [opinion, PDF] Washington's ban on voting by felons, reversing a prior ruling by a three-judge panel. That ban is enshrined in Article VI of the state constitution [text], which bars from voting, "All persons convicted of infamous crime unless restored to their civil rights." The plaintiffs, convicted felons who have lost their right to vote under the Washington Constitution, argued that such a ban violates section 2 of the Voting Rights Act (VRA) [materials], which forbids laws that deny the right to vote based on race. In overturning the ruling of the three-judge panel [JURIST report], the court noted that other circuits have disagreed with the panel's original ruling, finding that felon disenfranchisement laws have long been part of US history, and Congress would have taken those laws into account when it crafted the VRA. The full court then proceeded to set a high bar for individuals bringing a VRA challenge to a disenfranchisement law, saying in its per curiam opinion:
[W]e hold that plaintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a state's criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent. Our ruling is limited to this narrow issue, and we express no view as to any of the other issues raised by the parties and amici. We also leave for another day the question of whether a plaintiff who has made the required showing would necessarily establish that a felon disenfranchisement law violates section 2.
Washington Attorney General Rob McKenna expressed satisfaction [press release] with the ruling and reiterated the state's belief that those convicted of the most serious crimes should not be permitted to vote.

Washington is in the majority of states in terms of voting rights for convicted felons, as only two states, Maine and Vermont, permit those individuals to vote [San Francisco Chronicle report] without any conditions. The American Civil Liberties Union (ACLU) [advocacy website], a significant force in the area, released a report in 2008 showing widespread disenfranchisement [JURIST report] among ex-convicts, including a lack of knowledge of state laws regarding voting rights. Earlier that year, the ACLU filed suit [JURIST report] challenging additions to Alabama's felon voting disenfranchisement law made by the state's attorney general. In February 2008, the ACLU filed suit [JURIST report] alleging that a Tennessee law requiring ex-convicts to pay all outstanding legal obligations before being granted the right to vote violates the Fourteenth Amendment.




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Myanmar high court to consider hearing Suu Kyi appeal
Matt Glenn on October 8, 2010 1:13 PM ET

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[JURIST] Myanmar's Supreme Court announced Friday that it will hold a hearing October 18 to decide whether to consider an appeal [JURIST report] filed in May by pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive] challenging her continued house arrest. The hearing will occur [AFP report] less than a month before November 13, when Suu Kyi's house arrest is scheduled to end [JURIST report], six days after Myanmar holds its first national elections since 1990. On Thursday, Myanmar's Supreme Court agreed to hear an appeal [Mizzima report] filed by Suu Kyi [JURIST report] the day before challenging the dissolution of her National League for Democracy (NLD) [party website] under a controversial election law that bars political prisoners [JURIST reports] from participating in elections.

In June, an independent UN human rights expert called for the release [JURIST report] of Suu Kyi and other political prisoners in Myanmar, claiming their continued detention "contravenes international human rights law and casts a long shadow over planned elections in the country." Suu Kyi originally challenged the election law [JURIST report] dissolving the NLD in April, but her suit was rejected. In March, the NLD announced that it would not take part in the nation's first elections in 20 years after the Myanmar Supreme Court rejected [JURIST reports] a lawsuit brought by the NLD to repeal the election laws preventing Suu Kyi from participating. In February, the Myanmar Supreme Court dismissed an appeal filed by Suu Kyi challenging an 18-month extension to her house arrest imposed last August after Suu Kyi was found to have violated the terms of her house arrest [JURIST reports] after an American swam across a lake to her home.




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ICC to continue proceedings against Congo militia leader Lubanga
Drew Singer on October 8, 2010 12:43 PM ET

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[JURIST] The appeals chamber of the International Criminal Court (ICC) [official website] ruled Friday that proceedings can continue [press release] against accused Congolese militia leader Thomas Lubanga Dyilo [case materials; JURIST news archive]. The trial chamber had ordered Lubanga's release in July after previously ordering a stay [JURIST reports] in the proceedings until the prosecution complied with a directive to provide certain information to the defense. The prosecution appealed the decision [text, PDF; JURIST report] to release Lubanga, arguing that it was unlikely he would be able to be located and re-detained upon resumption of the trial. The appeals chamber concluded [judgment, PDF] that the trial chamber erred in staying the proceedings without first imposing sanctions. The court reversed the release order [judgment, PDF] and ordered proceedings to continue.

Lubanga is accused of war crimes for allegedly recruiting child soldiers to fight in the Democratic Republic of the Congo (DRC) in 2002-2003. His trial began in January 2009 but was halted soon after when one of the child witnesses recanted his testimony [JURIST report] that Lubanga had recruited him for the militia. The prosecution concluded its case [JURIST report] last July after presenting 22 weeks of testimony. Lubanga maintains he is innocent [JURIST report] of the charges against him. He became the first war crimes defendant to appear before the ICC, formed in 2002, after he was taken into custody [JURIST report] in March 2006.




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Rwanda genocide tribunal seeks UN assistance in relocating acquitted men
Brian Jackson on October 8, 2010 12:26 PM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] on Thursday requested UN assistance in relocating former Rwandan transportation minister Andre Ntagerura [ICTR materials]. Ntagerura is presently living in Tanzania, with the ICTR paying for his accommodations. He was acquitted in 2004 of charges of playing a role in the 1994 genocide [JURIST news archive. The ICTR has been searching, unsuccessfully, for a country to offer to take him in since the acquittal was upheld in 2006. Ntagerura's situation is not unique, as a number of acquitted individuals are currently living with the support [AFP report] of the ICTR, including the brother-in-law of former Rwandan president Juvenal Habyarimana, Protais Zigiranyirazo [Trial Watch profile], who was acquitted [JURIST report] in 2009, and General Gratien Kabiligi [Trial Watch profile], acquitted in 2008.

The ICTR, formed pursuant to UN Security Council Resolution 955 [materials], is charged with investigating and bringing to justice perpetrators of crimes of genocide that occurred in Rwanda in 1994. That mission has continued 16 years after the tribunal's formation, and the results have been a mix of successes and challenges [JURIST op-ed]. Last month, the ICTR opened the trial of a former Kivumu mayor [JURIST report], charged in connection with deaths at a church in that town in April 1994. The tribunal has faced adversity since its creation, including the shooting death [JURIST report] of one of the senior defense lawyers in July.




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Bolivia newspapers protest proposed racism law
Megan McKee on October 8, 2010 10:55 AM ET

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[JURIST] The majority of Bolivian newspapers engaged in a joint protest Thursday against a proposed anti-racism law [text, PDF; in Spanish] that they claim would damage freedom of expression. The newspapers shared one message on their front page, "There is no democracy without freedom of expression," in response [Los Tiempos report] to a decision by President Evo Morales [official profile, in Spanish; BBC profile] to maintain certain provisions of the legislation. Article 16 of the bill currently being discussed by the Senate, and which was already passed by the Chamber of Deputies [official website, in Spanish], would establish economic sanctions and allow for media outlets that publish information considered by the government to be racist or discriminatory to be closed. Bolivia's journalists and media outlets maintain that they support the struggle against racism but that they cannot accept provisions that would limit freedom of expression. They worry that the bill could be used for political ends to censor unfavorable opinions.

The legislation comes as part of a wider campaign by Morales to advance the interests of the majority indigenous community, which has been a theme of his presidency [JURIST report]. In June, the Bolivian National Congress approved [JURIST report] legislation [text, PDF; in Spanish] that will create an independent justice system for indigenous communities. The Law of Judicial Authority, is attempting to create a system of "communal justice" that would expedite the settlement of disputes and end the colonization of justice, according to supporters. Opponents in congress criticized the bill as a way in which to get more people from the indigenous population on the courts, regardless of merit. In March 2009, Morales began redistributing land to indigenous farmers under power given to him by the country's new constitution [text, in Spanish]. Bolivia's new constitution went into effect [JURIST report] in February 2009, after being approved [JURIST report] by national referendum the previous month with a 59 percent majority. It is intended to place more power in the hands of the country's indigenous. The constitution is intended to remove traditional colonial elites from power and to challenge US influence. It also creates seats in Congress for minority indigenous groups.




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Federal judge upholds health care law
Megan McKee on October 8, 2010 9:22 AM ET

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[JURIST] A judge for the US District Court for the Eastern District of Michigan [official website] ruled [opinion, PDF] Thursday that a provision of the recently enacted health care reform law [HR 3590 text; JURIST news archive] requiring all individuals to maintain health insurance or pay a penalty is constitutional. The suit [complaint, PDF], filed in March by conservative public interest group the Thomas More Law Center [advocacy website], on the same day President Barack Obama signed the bill into law [JURIST report], argued that the mandate that all individuals carry health insurance was unconstitutional. Judge George Steeh found that Congress has the constitutional authority to require all individuals to buy health care insurance through the Commerce Clause:
There is a rational basis to conclude that, in the aggregate, decisions to forego insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance. The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers. The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. These are the economic effects addressed by Congress in enacting the Act and the minimum coverage provision.
Steeh also found that a penalty against those who do not have health insurance would not be an unconstitutional direct tax. The Thomas More Law Center plans to appeal [press release].

The Obama administration is also facing various other health care lawsuits. In June, the National Federation of Independent Businesses (NFIB) [association website], a small business lobby group, joined a lawsuit [complaint, PDF; JURIST report] challenging the constitutionality of the health care reform law. The NFIB joined 20 states in a legal battle that began in March when a complaint seeking injunction and declaratory relief was filed in a Florida federal court. In May, the Obama administration filed a brief [text, PDF] urging the dismissal [JURIST report] of a lawsuit brought by the state of Virginia challenging the constitutionality of the law, but, in August, a federal judge announced he would allow the case to proceed [JURIST report].




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Rights group claims France police illegally collecting Roma DNA
Daniel Makosky on October 8, 2010 8:11 AM ET

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[JURIST] The League of Human Rights (LDH) [advocacy website, in French] on Thursday accused French authorities of improperly collecting DNA samples from Roma migrants [JURIST news archive]. French police may collect samples of genetic material from indicted individuals, though the organization contends that police have subjected the Roma to such procedures without being either arrested or charged [France24 report]. The allegations come shortly after reports that the country's Central Office for the Fight Against Itinerant Delinquency (OCLDI) [materials, in French] has maintained a database [Le Monde report, in French] of illegal documents pertaining to Roma families, their ethnic origins and their "specialties." The Ministry of the Interior [official website, in French] denied knowledge [press release, in French] of such a database, except for a similar one deleted in 2007, and ordered an investigation into its existence. Categorizing demographic data by ethnicity is illegal [Telegraph report] in France, punishable by up to five years imprisonment and fines.

Last month, the European Commission [official website] warned France that the country would face disciplinary proceedings [JURIST report] and potential legal action if it did not follow EU regulations in its relations with Roma migrants. Also in September, Amnesty International (AI) [advocacy website] urged EU members to stop forcibly deporting Roma migrants to Kosovo [JURIST report]. The UN Committee on the Elimination of Racial Discrimination (CERD) [official website] expressed concern [JURIST report] in August with France's recent expulsion policy for Roma migrants, a day after the EU Parliamentary Group of the Progressive Alliance of Socialists & Democrats [official website] labeled the policy a violation of EU law [JURIST report]. France defended its handling of the Roma [Telegraph report], saying only few cases result in forced deportation and that France was helping those displaced reintegrate into their countries of origin. In July, French President Nicolas Sarkozy [official website, in French] ordered measures against illegal Roma communities in France and announced legislation [JURIST report] that would make deportation easier. At the time, the French government aimed to dismantle half of illegal Roma camps within three months and to immediately deport all those found to have broken the law.




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India authorities issue warrants for Mumbai terror attack suspects
Daniel Makosky on October 8, 2010 6:57 AM ET

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[JURIST] India's National Investigation Agency (NIA) [official website] announced [press release, PDF] on Thursday that it has secured INTERPOL [official website] red notices [official backgrounder] for five Pakistani citizens, including two military officials, for their suspected involvement in the 2008 Mumbai terror attacks [BBC backgrounder; JURIST news archive] that killed 166. The red notices stem from NIA's investigation into US citizen David Headley, who pleaded guilty [JURIST report] to his role in the attack in a US court in March. The investigation led an Indian court to issue arrest warrants in July, on which the notices are based, for Abdur Rehman Hashim, Sajid Majid, Illyas Kashmiri, and Majors Iqbal and Sameer Ali. Hafiz Muhammad Saeed [Global Jihad profile], head of the fundamentalist terrorist group Lashkar-e-Taiba (LeT) [CFR backgrounder], and senior LeT commander Zaki-ur-Rehman Lakhvi were also subjects of the inquiry, though notices against them have been issued previously.

Last month, the Bombay High Court allowed an appeal by Mohammad Ajmal Amir Kasab [NDTV profile], the lone gunman to survive the three-day siege. Kasab, who was tried alongside two alleged accomplices of Indian descent that were acquitted on all charges, announced in June that he would appeal his May conviction and death sentence [JURIST reports]. In May, Pakistan's Supreme Court [official website] declined to incarcerate [JURIST report] Saeed, citing insufficient evidence to link him to the Mumbai attacks or al Qaeda [JURIST news archive]. It was feared that the ruling could strain the already fragile relationship between India and Pakistan, which had recently begun peace talks. Pakistan had previously placed Saeed under virtual house arrest [JURIST report] in September 2009, though the Lahore High Court (LHC) [official website] ordered his release [JURIST report] weeks later, also for a lack of evidence.




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France constitutional court approves burqa ban
Megan McKee on October 7, 2010 3:32 PM ET

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[JURIST] The French Constitutional Council [official website, in French] ruled [judgment, PDF; in French; press release, in French] Thursday that a bill [materials, in French] making it illegal to wear the Islamic burqa [JURIST news archive], niqab or other full face veils in public, conforms with the Constitution. Under the legislation, women who wear the veil can be required by police to show their face, and, if they refuse, they can be forced to attend citizenship classes or be charged a USD $185 fine. The legislation also makes it a crime to force a woman to cover her face, with a penalty of one year in prison and a fine of USD $18,555. The bill was approved by the National Assembly in July and by the Senate [JURIST reports] in September. Those that oppose the legislation, such as Amnesty International (AI) [advocacy website], may still challenge the law in the European Court of Human Rights in Strasbourg, which has the ability to render a binding opinion on France. It is thought the law will come into force [CNN report] sometime this spring.

Legislation banning the use of Islamic burqas has been a point of contention recently in many countries. Last week, Dutch politician Geert Wilders [personal website, in Dutch] said that the Netherlands will ban the burqa [JURIST report] as part of the government's plan to form a minority coalition. In August, Austria's conservative Freedom Party [official website, in German] called for a special vote [JURIST report] on whether to ban face veils and the construction of minarets, two of the most visible symbols of the Islamic faith. In July, Spain's lower house of parliament rejected a proposal [JURIST report] to ban the burqa and other full face veils by a vote of 183 to 162 with 2 abstaining. Also in July, UK Immigration Minister Damian Green [official profile] indicated in an interview that Britain's coalition government would not seek or support a British law banning the burqa or other face coverings in public. Green stated that banning the burqa would not be consistent with British society, where mutual respect for differences among cultures is important.




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US announces record number of deportations in 2010
Andrea Bottorff on October 7, 2010 11:21 AM ET

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[JURIST] US Department of Homeland Security (DHS) [official website] Secretary Janet Napolitano [official profile] and US Immigration and Customs Enforcement (ICE) [official website] Director John Morton [official profile] announced Wednesday that the US government has deported a record number of illegal immigrants [news release] during 2010. About half of the more than 390,000 illegal immigrants deported allegedly have criminal records. Napolitano explained the deportation figures:
This administration has focused on enforcing our immigration laws in a smart, effective manner that prioritizes public safety and national security and holds employers accountable who knowingly and repeatedly break the law. Our approach has yielded historic results, removing more convicted criminal aliens than ever before and issuing more financial sanctions on employers who knowingly and repeatedly violate immigration laws than during the entire previous administration.
According to ICE reports, there has been an 70 percent increase in criminal convict deportations since 2008. The increase may be attributed to the Secure Communities Initiative [ICE backgrounder], a $1.4 billion ICE effort to find and deport criminals who are residing illegally in the US.

Mounting emphasis on enforcement of existing immigration laws under the Obama administration has seen a sharp rise in deportations [JURIST report] by the ICE, with government resources funding deportations of convicted criminals and raids on corporations suspected of employing illegal immigrants. In July, a Syracuse University study indicated that backlogs at US immigration courts are up by more than 30 percent [JURIST report] in the previous 18 months. As of January 2009, there were an estimated 10.8 million illegal immigrants in the US, one million less than in 2007, according to the DHS. In that same period, deportations have more than doubled. Federal authorities have indicated that the workload would continue to grow since the implementation of Arizona's controversial new immigration law [SB 1070 materials; JURIST news archive], which criminalizes illegal immigration and requires police officers to question an individual's immigration status if the officer has a "reasonable suspicion" to believe an individual is in the country illegally.




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ACLU suing South Carolina prison over banned books
Drew Singer on October 7, 2010 9:54 AM ET

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[JURIST] The American Civil Liberties Union [advocacy website] filed a lawsuit [complaint, PDF; press release] Wednesday challenging a South Carolina detention center rule that bans all books, including magazines and newspapers, from being sent to prisoners. The lawsuit was filed on behalf of the Prison Legal News [advocacy website] against the Berkeley County Detention Center [official website] in Moncks Corner for First and Fourteenth Amendment [texts] violations. The publication provides information about legal issues such as court access, disciplinary hearings, prison conditions, excessive force, mail censorship, prison and jail litigation, visitation, telephones, religious freedom, prison rape and the death penalty. It also distributes various books aimed at fostering a better understanding of criminal justice policies and allowing prisoners to educate themselves in areas such as legal research, how to write a business letter and health care in prison. In addition to seeking injunctive and declaratory relief, the ACLU is seeking punitive damages:
Punitive damages are warranted as to this claim because each Defendant's conduct was motivated by evil motive or intent, involved reckless or callous indifference to the federally protected rights of Plaintiffs, intentionally violated federal law, or involved ill will, a desire to injure, and malice. Defendants' conduct is of the sort that calls for deterrence and punishment over and above that provided by compensatory awards.
The Prison Legal News has attempted to mail its publication to inmates at least nine times since 2008, but none was delivered. The correction center's policy provides an exception for soft-cover copies of the Bible.

The constitutional rights of prisoners are somewhat limited. Last year, the US Court of Appeals for the First Circuit ruled [opinion text] that a Massachusetts regulation prohibiting prisoners from receiving sexually explicit mail is constitutional [JURIST report]. The petitioners challenged the portions a statute that regulates the receipt of sexually explicit pictures in the mail and the display of sexually explicit or suggestive images, as violating the First Amendment freedom of speech provision. In 2007, the US federal Bureau of Prisons (BOP) said that it will reshelve all religious material taken from prison chapel libraries originally determined to fall outside the approved list of material [JURIST report]. The BOP made the decision to temporarily end the Standardized Chapel Library Project in light of growing criticism from a wide spectrum of religious and secular leaders. The BOP says it produced the list of limited material based on a 2004 report by the US Department of Justice Office of the Inspector General, which provided recommendations for curbing violence and derogation related to Muslim extremism in the wake of the 9/11 terrorist attacks.




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Former Guantanamo detainee suing US government over torture allegations
Jay Carmella on October 7, 2010 8:49 AM ET

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[JURIST] A former Guantanamo Bay [JURIST news archive] detainee filed a lawsuit [complaint, PDF] Wednesday against the US military alleging that he was subjected to torture. Abdul Rahim Abdul Razak Al Ginco, a Syrian national who prefers the surname Janko, filed suit in the US District Court for the District of Columbia [official website], the same court that ordered his release last year, claiming that US military officials repeatedly tortured him [WP report] during his nearly seven-and-a-half years at Guantanamo. The suit names 26 current or former members of the military who are allegedly responsible for the tortuous acts, such as urinating on Janko, slapping him, threatening him with loss of fingernails, sleep deprivation, extreme cold and stress positions. Janko was released [order, PDF; JURIST report] in June 2009 when Judge Richard Leon found that he could no longer be classified as an "enemy combatant" and that the government's argument against him defied common sense. Prior to being detained by the US military, Janko was imprisoned and tortured by al Qaeda [JURIST news archive] for 18 months over suspicions that he was an American spy.

Several other Guantanamo detainees have also filed lawsuits alleging torture. In July, the UK High court allowed [JURIST report] a lawsuit filed by former Guantanamo Bay detainees alleging that the UK government was complicit in their torture to proceed. In April, former Guantanamo Bay detainee Adel Hassan Hamad [advocacy website] filed a lawsuit [JURIST report] in the US District Court for the Western District of Washington [official website] against the US government and more than a dozen government officials, claiming he was tortured.




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Nations unveil draft of international anti-counterfeiting pact
Erin Bock on October 7, 2010 8:14 AM ET

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[JURIST] The Office of the US Trade Representative (USTR) [official website] and other participating countries on Wednesday released a draft [text, PDF] of the Anti-Counterfeiting Trade Agreement (ACTA) [USTR backgrounder], an international pact to defend intellectual property rights from counterfeit and piracy. The draft was released after three years [JURIST report] and 10 rounds of negotiations among the ACTA parties, which include the EU, Japan, Canada, Australia, Mexico and Korea, representing more than 50 percent of world trade. The agreement would establish a framework for combating counterfeiting and piracy of commercial goods that encourages international cooperation as well as strong enforcement practices. The draft agreement lays out provisions regarding both civil and criminal remedies such as imprisonment, administrative penalties, injunctions and payment of damages. The draft also contains provisions relating to border control, which include giving customs authorities the right to suspend shipments of suspect goods and destroy counterfeit goods. The agreement would ensure that the framework regarding infringement protection and enforcement is also applicable to trade in the digital environment. US Trade Representative Ron Kirk [official profile] applauded the agreement [statement] as "a significant victory":
This text reflects tremendous progress in the fight against counterfeiting and piracy - a global crime wave that robs workers in the United States and around the world of good-paying jobs and exposes consumers to dangerous products. The leadership shown by our ACTA partners ... should send a strong message to pirates and counterfeiters that they have no place in the channels of legitimate trade.
The most recent round of revisions to the agreement took place last week in Tokyo. Participating countries agreed to further examine the document and plan to finalize the text of the agreement as soon as possible. The agreement will undergo a final review before it is opened for signatures. Notably, China, a source of many of the world's counterfeit goods, is not a participant [Reuters report] in the agreement or discussions.

In May, Canada and Mexico, both parties to the agreement, were named two of the worst countries [JURIST report] for protecting copyrighted information by the Congressional International Anti-Piracy Caucus [official website]. The USTR also named Canada as one of the countries on its Priority Watch List [JURIST report] for not adequately protecting intellectual property rights. US-based company eBay [corporate website] has recently come under international fire for its trading practices and has been accused of trafficking counterfeit products. In February, a French district court ordered the company [JURIST report] to pay LVMH Moet Hennessy Louis Vuitton [corporate website] USD $275,000 in damages for paying search engines to direct customers to counterfeit Louis Vuitton products. Last month, a French appeals court upheld a 2008 decision [JURIST reports] against the company for its role in selling counterfeit goods, but reduced the amount of damages. In April, the US Court of Appeals for the Second Circuit [official website] ruled that the online auction house is not required to actively monitor its website [JURIST report] for the sale of counterfeit goods.




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Hungary police initiate criminal investigation into chemical spill
Dwyer Arce on October 7, 2010 7:00 AM ET

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[JURIST] Hungarian police on Wednesday initiated a criminal investigation into the circumstances surrounding the Ajka chemical spill [CNN backgrounder] to determine whether to bring charges against the plant owners for criminal negligence. The spill occurred Monday, releasing more than 20 million cubic feet of chemical waste [BBC report], causing four deaths and 120 injuries, in addition to extensive ecological damage. The spill is expected to take more than a year to clean up [Guardian report], according to Hungarian Interior Minister Zoltan Illes. Under EU law, if negligent, the plant owner could be held liable [CTV report] for the damage. MAL Rt [corporate website, in Hungarian], the Hungarian company that owns the plant, has argued that there were no indications of the impending spill and that the chemical waste is not hazardous by EU standards. The spill is considered one of the worst ecological disasters in decades, and has gained the attention of EU officials, who have expressed concern over the waste reaching the Danube river, which would cause environmental damage throughout eastern Europe. The Hungarian government declared a state of emergency [NYT report] on Tuesday in several cities in the area surrounding the spill.

Companies have been charged with criminal negligence in the context of other chemical spills in the past, the most notable of which are in relation to the 1984 Bhopal chemical spill disaster [BBC backgrounder]. In August, the Indian Supreme Court announced that it will reconsider [JURIST report] a 1996 ruling allowing former employees of US chemical producer Union Carbide accused in relation to the 1984 chemical spill to be charged with negligence instead of culpable homicide. Seven men were convicted in June [JURIST report] on charges of "death by negligence" and sentenced to two years in prison and ordered to pay USD $2,100. The convictions were the first related to the Bhopal disaster in which nearly 3,800 people were killed when toxic gas was accidentally released in the middle of the night by a chemical plant owned by a Union Carbide subsidiary company. Upwards of 15,000 others later died from exposure to the gas, and 50,000 were left permanently disabled.




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Supreme Court hears arguments on military funeral protests
Jaclyn Belczyk on October 6, 2010 2:33 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in the highly controversial case of Snyder v. Phelps [oral arguments transcript, PDF; JURIST report] on protests at military funerals. Reverend Fred Phelps and members of the Westboro Baptist Church [WARNING: readers may find material at this church website offensive; JURIST news archive] have been traveling around the country picketing military funerals in recent years, claiming US soldiers have been killed because America tolerates homosexuals. The suit was brought [JURIST report] by the family of Marine Lance Corporal Matthew Snyder after Phelps and members of his church picketed his funeral. A federal judge awarded the family [JURIST report] almost $11 million in damages, but the US Court of Appeals for the Fourth Circuit reversed, holding [opinion, PDF] that Phelps' speech was protected under the First Amendment [text]. Counsel for the petitioner, Albert Snyder, opened his argument by stating:
We are talking about a funeral. If context is ever going to matter, it has to matter in the context of a funeral. Mr. Snyder simply wanted to bury his son in a private, dignified manner. When the Respondent's behavior made that impossible, Mr. Snyder was entitled to turn to the tort law of the State of Maryland.
Counsel for the church argued that, because Snyder had turned his son's funeral into a public event, the church's actions were protected because they were speaking on a matter of public concern.

In Connick v. Thompson [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether imposing failure-to-train liability on a district attorney's office for a single Brady violation contravenes the rigorous culpability and causation standards or undermines prosecutors' absolute immunity. Prosecutors hid exculpatory evidence in violation of defendant John Thompson's rights under Brady v. Maryland [opinion text]. The US District Court for the Eastern District of Louisiana entered a judgment [text, PDF] in favor of Thompson, and the US Court of Appeals for the Fifth Circuit denied the motion for a new trial. Counsel for the petitioners argued that the district court misapplied the Supreme Court's rule, ignoring the "distinction between a single incident and pattern liability." Counsel for Thompson argued that court should not "write into section 1983 a per se rule that the only way ... a civil rights victim can ever establish the deliberate indifference of a district attorney is if he can prove a prior significant history of assistant prosecutors violating other citizens' constitutional rights."




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Federal judge bars key witness in trial of ex-Guantanamo detainee
Sarah Miley on October 6, 2010 1:30 PM ET

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[JURIST] A federal judge on Wednesday barred key US government witness Hussein Abebe from testifying in the trial against former Guantanamo Bay [JURIST news archive] detainee Ahmed Ghailani [GlobalSecurity profile; JURIST news archive]. Judge Lewis Kaplan of the US District Court for the Southern District of New York (SDNY) [official website] held that prosecutors could not use Abebe's testimony because it was the product of statements made by Ghailani to the Central Intelligence Agency (CIA) [official website] under duress. While being detained by the CIA, Ghailani was subjected [AFP report] to what the government refers to "enhanced interrogation," which Ghailani's lawyers have described as torture. Kaplan postponed the trial until Tuesday to allow the prosecutors time to appeal his decision.

In July, Kaplan refused to dismiss charges [JURIST report] against Ghailani ruling that his Sixth Amendment [text] right to a speedy trial was not violated. Ghailani's lawyers had sought a dismissal of charges, arguing that he was denied the right to a speedy trial [JURIST reports] while being detained for nearly five years in CIA secret prisons and later at Guantanamo Bay. Earlier that month, Kaplan ruled that Ghailani is not suffering from post-traumatic stress disorder (PTSD), and is therefore fit to stand trial [JURIST report]. The issue of Ghailani's psychological state arose after he requested to be exempt [JURIST report] from prison strip searches because it triggers his PTSD, which he allegedly acquired while being interrogated at an overseas CIA detention camp. In May, Kaplan refused to dismiss criminal charges [JURIST report] against Ghailani, despite his lawyer's claims that he had been tortured in prison. Ghailani was the first Guantanamo detainee to be brought to the US for prosecution. Having been held at the Guantanamo facility since 2006, Ghailani was transferred [JURIST report] to the SDNY in June to face 286 separate counts, including involvement in the bombings and conspiring with Osama bin Laden and other members of al Qaeda to kill Americans worldwide. He pleaded not guilty [JURIST report] at his initial appearance.




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Suu Kyi files challenge to Myanmar dissolution of opposition party
Sarah Miley on October 6, 2010 1:01 PM ET

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[JURIST] Pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive] filed an appeal Tuesday in Myanmar's Supreme Court challenging the dissolution of her opposition National League for Democracy (NLD) [party website] under a controversial election law [JURIST report]. Suu Kyi is asking the court to annul the part of the election law that bars political prisoners [JURIST report] from participating in elections and also to establish a parliament of lawmakers who won in the 1990 elections. Myanmar's military government formally abolished [BBC report] the NLD in May for failing to register for elections, which will take place in November. Suu Kyi originally filed suit with the court in April, but her claim was rejected [JURIST report]. The NLD is boycotting the upcoming elections on the basis of corruption.

In March, the NLD announced that it would not take part in the nation's first elections in 20 years after the Myanmar Supreme Court rejected [JURIST reports] a lawsuit brought by the NLD to repeal the election laws preventing Suu Kyi from participating. Myanmar also faced a bevy of criticism that month, with the UN Human Rights Council [official website] adopting a resolution [A/HRC/13/L.15 materials] condemning the country for rights violations and urging [JURIST report] the ruling junta to conduct fair and free elections. UN Secretary-General Ban Ki-moon [official website] said that Myanmar's election laws do not meet international standards [JURIST report], and Human Rights Watch [advocacy website] has said [press release] "[the new law] continues the sham political process that is aimed at creating the appearance of civilian rule with a military spine."




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Ethiopia opposition leader released from prison
Andrea Bottorff on October 6, 2010 11:15 AM ET

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[JURIST] The Ethiopian government on Wednesday released former judge and political opposition leader Birtukan Mideksa [Reuters profile] from an Addis Ababa prison where she had been serving a life sentence. The Ethiopian Justice Ministry said that Mideksa, leader of Unity for Democracy and Justice [party website], asked the government for a pardon last month, a claim that she later confirmed in an interview [Bloomberg report]. Mideksa's release comes one day after the Ethiopian House of Representatives [official website] re-elected incumbent Prime Minister Meles Zenawi [BBC profile] for another five-year term in office [press release]. Critics argue that the announcement is meant to address international criticism [Al Jazeera report] of the country's spring elections, which prompted opposition parties to file suit claiming illegal use of intimidation and voter fraud [JURIST report]. Mideksa was originally jailed for protesting against the government.

Both the US and EU criticized the results following Zenawi's election in May. The US State Department (DOS) [official website] noted that Ethiopian election laws heavily favor the party in power [press briefing] and that Ethiopia must take direct, concrete steps to further democracy if its relationship with the US is to progress. An EU spokesman stated that the election process failed to meet international standards [BBC report] and that the ruling party clearly had an advantage in the election process. The 2005 Ethiopian elections were also marred by allegations of fraud, which led to violent demonstrations [JURIST reports]. The National Electoral Board (NEB) [official website] ordered new elections [JURIST report] in 20 districts after an investigation into the fraud allegations found evidence of abuse at more than 100 polling stations. Several Ethiopian opposition members were convicted and sentenced for their roles in the protests, although many asked for and eventually received pardons [JURIST reports].




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UN forces arrest rebel leader for DRC mass rapes
Ann Riley on October 6, 2010 9:19 AM ET

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[JURIST] Commander of the rebel Mai Mai Cheka [GlobalSecurity backgrounder] Lieutenant Colonel Sadoke Kokunda Mayele was arrested [UN News Centre Report] Tuesday by UN peacekeepers and Democratic Republic of Congo (DRC) [BBC backgrounder; JURIST news archive] government forces for allegedly leading rebel groups in mass rapes in the DRC. The UN Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) [official website] arrested Mayele under the mandate [materials] of the mission to support the DRC in bringing justice to humanitarian crimes. Mayele has been charged with crimes against humanity, rape and looting [press release]. UN Special Representative for Sexual Violence in Conflict Margot Wallstrom [EU profile], who is currently visiting the DRC, called for a swift, rigorous and open process of justice:
This is very good news for the people of the Democratic Republic of Congo. It is a victory for justice, especially for the many women who have suffered rapes and other forms of sexual violence. The numerous criminal acts committed under 'Lt. Col' Mayele's command cannot be undone, but let his apprehension be a signal to all perpetrators of sexual violence that impunity for these types of crimes is not accepted and that justice will prevail.
UN representatives allege that armed Congolese rebel groups Mai Mai Cheka, the Democratic Liberation Force of Rwanda (FDLR) [GlobalSecurity backgrounder], and rebels close to leaders previously connected to the National Congress for the Defense of the People (CNDP) [website, in French] raped between 150 and 200 women and children [NYT report] in a small cluster of villages in eastern DRC between July 30 and August 3 of this year. The attackers allegedly blocked all communication [BBC report] from the villages, preventing villagers from alerting UN peacekeepers stationed nearby.

Last week, the UN released a report on war crimes [text, PDF; JURIST report] and human rights abuses in the DRC. The report, originally expected to be released in September [JURIST report], lists 617 of the most serious violations of human rights, including violence against children, genocide and mass rape, committed between 1993 and 2003. Last month, the UN Security Council [official website] issued a statement condemning the recent mass rapes [text; JURIST report] and calling for justice for the victims. Also last month, the UN Special Representative for Sexual Violence in Conflict called for perpetrators of mass rapes, including heads of DRC militias, to face war crimes charges [JURIST report]. In August, members of the Security Council expressed "outrage" [JURIST report] over the recent mass rapes calling for justice for the victims. In December, HRW urged the UN Organization Mission in DR Congo (MUNOC) [official website] to stop funding military groups [JURIST report] in the country that are committing human rights abuses. In December 2008, AI reported that rape and sexual warfare have been employed [JURIST report] by both the DRC military and by rebel forces.




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East Timor rights situation improving despite abuses: UN report
Dwyer Arce on October 6, 2010 8:23 AM ET

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[JURIST] The human rights situation in East Timor has continued to improve over the last year, despite the need for further reform, according to a report [text, PDF; press release] released Tuesday by the UN Integrated Mission In Timor-Leste (UNMIT) [official website]. The report, Facing the Future, chronicles the human rights situation in the country between July 2009 and June 2010. In it, UNMIT pointed out several areas in which the Timorese security forces and judiciary have improved in accountability and respect for human rights, despite the need to improve to fully meet international standards. UNMIT also pointed to several pieces of recently enacted legislation to emphasize the improvement in the rights situation, including that against domestic violence, providing for the protection of witnesses and creating commissions to deal with corruption and children's rights. The report also lauded the conduct of Timorese authorities during the trials of those accused of staging attacks against the president and prime minister in 2008, which "conformed to human rights standards and upheld the rights of the defendants," despite highlighting several weaknesses in the process. In describing the human rights situation in East Timor, the press release stated:
Timor-Leste was doing far better than average in a number of human rights areas and that continues to be the case. For example, we recorded no cases of torture or enforced or involuntary disappearances during this reporting period. This is something that all citizens, including members of the security forces and the national human rights institution, ... can be proud of. ... The challenge remains of ensuring effective accountability for the small percentage of police officers and military personnel who continue to use excessive force against their fellow citizens.
Despite these improvements, the report also found several areas that still require improvement, including the ongoing reliance on international officials in running the judiciary and the continued issue of bringing to account those responsible for gross human rights abuses while East Timor was under Indonesian control. Additionally, UNMIT cited the slow progress of cases against members of the security forces for rights abuses and the limited ability of victims to bring the perpetrators of past violations to justice.

In March, a Timorese court sentenced 24 individuals [JURIST report] for the attempted assassination of the country's president and prime minister in 2008. The individuals, former government and military officials displaced after civil unrest resulted in a change in government in 2006, had been accused of attacking President Jose Ramos-Horta and Prime Minister Xanana Gusmao [BBC profiles]. The attempted assassinations led to the declaration of a state of emergency [JURIST report] in the country, in an attempt to quell the long-standing tension between the government and former members of the military. Much of the conflict within East Timor stems from the country's attempts to gain independence from Indonesia in 1999, following a 25-year occupation. In August 2009, Horta, who won the 1996 Nobel Peace Prize for his work in attempting to resolve the Timor-Indonesian conflict, rejected a call for a criminal tribunal [JURIST report] to investigate abuses during the Timorese bid for independence, saying that such a tribunal would harm reconciliation between the two nations.




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