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Legal news from Monday, February 7, 2011




Former Pennsylvania judge goes on trial over juvenile sentencing scandal
Megan McKee on February 7, 2011 3:04 PM ET

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[JURIST] Prosecutors and defense attorneys in the US District Court for the Middle District of Pennsylvania [official website] on Monday began selecting the jury in the corruption trial of former Pennsylvania judge Mark Ciavarella for his role in a juvenile sentencing scandal [JURIST news archive]. Ciavarella, a former judge in Pennsylvania's Luzerne County Court of Common Pleas, is accused of receiving kickbacks for sentencing teenagers to two private juvenile detention facilities in which they had a financial interest. Ciavarella is charged [UPI report] with 39 counts of honest services fraud, racketeering, money laundering, wire fraud, bribery, extortion and tax evasion. Opening statements are scheduled to begin Tuesday.

In July, Judge Edwin Kosik accepted [JURIST report] a plea agreement [text, PDF] with former Pennsylvania judge Michael Conahan for his involvement in the juvenile sentencing scandal. Conahan now faces a 20-year prison sentence, a fine of up to $250,000 and disbarment. Kosik had previously rejected [JURIST report] joint plea agreements [text, PDF] from Conahan and Ciavarella, finding that plea bargaining to honest services fraud and tax evasion charges demonstrated that the men did not accept responsibility and that the disbarment and 87-month prison sentences were too lenient [JURIST op-ed]. In October 2009, the Supreme Court of Pennsylvania [official website] overturned about 6,500 convictions [JURIST report] handed down by Ciavarella between 2003 and 2008, but gave prosecutors permission to seek retrial of more than 100 youths who were still under court supervision. Conahan and Ciavarella were indicted in September of 2009, following a withdrawal of the guilty pleas they entered [JURIST reports] in February 2009.




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UK did not pressure Scotland to release Lockerbie bomber: report
Erin Bock on February 7, 2011 2:49 PM ET

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[JURIST] The UK's top civil servant reported [text, PDF] Monday that the previous administration "[did] all it could" to facilitate a Libyan appeal to allow for the release of convicted Lockerbie [BBC backgrounder] bomber Abdelbaset Ali Mohmet al-Megrahi [BBC profile; JURIST news archive] from a Scottish prison, but that the decision-making power was solely within the province of the Scottish Government. Megrahi, a former Libyan intelligence official, was released from custody [JURIST report] in August 2009 on compassionate grounds after being diagnosed with terminal cancer and subsequently returned to his native Libya. Libyan officials began lobbying for Megrahi's release after his diagnosis in September 2008, stating that allowing Megrahi to die in Scottish custody would be the equivalent of a death sentence. The officials threatened "severe ramifications to UK interests" if Megrahi was not released. Prime Minister David Cameron [official profile; JURIST news archive] commissioned Cabinet Secretary Gus O'Donnell [BBC profile] to review government documents and correspondence to determine the previous UK government's involvement in Megrahi's release. O'Donnell determined that there was no evidence the previous government "pressured or lobbied" the Scottish government to transfer or release Megrahi, but also stated that the previous government had an "underlying desire" of which the Scottish Government was aware to have Megrahi released.
Although it is likely that the Scottish Government was aware of this desire, there is no record that it was communicated or that UK interests played a part in Mr. Megrahi's release by the Scottish government on compassionate grounds. When the matter came to the then Prime Minister ... he did not seek to exercise any influence on the First Minister or the Scottish Government. Mr. Megrahi's release on cmpassionate grounds was a decision that Scottish Ministers alone could - and did - make.
This "underlying desire" was fueled by a policy adopted after Megrahi's diagnosis "based upon an assessment that UK interests would be damaged if Mr. Megrahi were to die in a UK jail." The motivating factor was "normalizing relations" with Libya and avoiding harm "to UK nationals, to British interests and to cooperation on security issues." One British interest that weighed heavily on this policy was British Petroleum (BP) [corporate website; JURIST news archive], which was engaged in contract negotiations to explore drilling in Libya and was suffering "significant financial loss" while these contracts remained unsigned. Doctors predicted Megrahi had only three months to live when released, but he is still living today in his native Libya.

Last August, the Obama administration urged Libyan authorities to return Megrahi to a Scottish prison [JURIST report] to serve the remainder of his sentence. Also in August, the opposition Scottish Labour Party [party website] called for the publication of all medical evidence [JURIST report] related to Megrahi's release. In July, US lawmakers called for an investigation [JURIST report] into the role that BP may have played in Megrahi's release. Megrahi's release was controversial, with both US officials and the Scottish Parliament [JURIST reports] condemning it. Megrahi was convicted in 2001 of the Pan Am bombing and sentenced to 27 years in prison, which he subsequently appealed. Libya made its final compensation payment [JURIST report] to a US fund for victims' families in November 2008 after agreeing to accept responsibility for the 1988 airline bombing over Lockerbie, Scotland that killed all 259 on board [memorial website] including 180 Americans.




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UN rights experts call for end to female genital mutilation
LaToya Sawyer on February 7, 2011 1:56 PM ET

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[JURIST] UN rights experts called Monday for all global communities to participate in the effort to end [press release] female genital mutilation (FGM) [WHO backgrounder; JURIST news archive]. The statement, marking the International Day of Zero Tolerance for Genital Mutilation and Cutting, encourages abandonment of the practice that has long-term health effects and is, according to the UN officials, a clear violation of girls' and women's fundamental human rights. The officials, UN Population Fund (UNFPA) Executive Director, Dr. Babatunde Osotimehin, and UN Children's Fund (UNICEF) Executive Director, Anthony Lake, head a program formed by the two organizations that is designed to eliminate this practice. The goal of the program, started in 2008, is to encourage voluntary abandonment of practicing FGM and avoid condemnation of nations involved in that participate in this cultural practice. The officials said the joint program was making significant progress in many nations around the world:
All girls deserve to grow up free from harmful practices that endanger their health and well-being. ... Governments, non-governmental organizations, religious leaders and community groups are making real progress. Three years into the programme, more than 6,000 communities in Ethiopia, Egypt, Kenya, Senegal, Burkina Faso, the Gambia, Guinea and Somalia have already abandoned the practice. Social norms and cultural practices are changing, and communities are uniting to protect the rights of girls.
To further promote the effort to preserve women's and girls' human rights, the program will be represented in an event, organized by the Inter-African Committee (IAC) [official website], called "Building Bridges between Europe and Africa." The event will include representatives of governments in Africa, Europe and Latin America, several UN agencies, other international groups and women who have undergone FGM.

As many as 140 million women and girls worldwide have undergone some form of FGM, which is defined by the World Health Organization (WHO) [official website] as "all procedures involving partial or total removal of the external female genitalia or injury to the female genital organs for nonmedical reasons." Efforts in several countries, however, have sought to eliminate or reduce the practice. In 2009, Uganda unanimously outlawed FGM [JURIST report] and imposed harsh penalties anyone who conducts the procedure to face imprisonment. Last year, Human Rights Watch (HRW) [advocacy website] called on the government of Iraqi Kurdistan [JURIST report] to outlaw female genital mutilation and to develop a comprehensive legislative plan to reduce FGM in the region.




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Sudan president accepts South's vote for independence
Ann Riley on February 7, 2011 1:53 PM ET

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[JURIST] A total of 98.83 percent [SSRC materials] of nearly 3.8 million southern Sudanese voters voted in favor of secession in last month's Southern Sudan's Independence Referendum, according to the final polling results released Monday by the Southern Sudan Referendum Commission [official website]. After the official results were announced in the northern capital of Khartoum, Sudanese President Omar al-Bashir [BBC profile; JURIST news archive], who campaigned against secession, issued a formal decree [NYT report] accepting the result of the referendum. In an address [Reuters report] on state television, al-Bashir said that he welcomed the results because they represent the will of the southern people. Experts had feared that the ruling National Congress Party (NCP) [party website] of al-Bashir would try to stop the election because, depending on where the border is drawn, it could result in as much as 80 percent of the nation's oil reserves landing in the new southern state. Last month, preliminary results revealed [JURIST report] an overwhelming majority of voters voted in favor of secession. With the South's secession from the North, the world's 193rd country will be announced on July 9 in Juba, the capital of Southern Sudan.

In September, a human rights expert told the UN that Sudan was not prepared [JURIST report] for the referendum. Mohamed Chande Othman, a Tanzanian judge and independent expert on the Sudan human rights situation, presented a report [text, PDF] to the UN Human Rights Council [official website] in Geneva warning that Sudan did not have the necessary infrastructure in place and cited major setbacks, including the suppression of free speech and of the press, restrictions on other civil and political rights, and inadequate protection of society due to a lack of well-trained police officers, prosecutors and judges. The report also stated that there are unresolved issues, including border demarcation, residency and voter eligibility, as well as the lack of a referendum commission in the contentious region of Abyei in southern Sudan. According to the 2005 Comprehensive Peace Agreement (CPA) [UN report], the 10 states of Southern Sudan may form a new nation if voter turnout for the referendum exceeds 60 percent and 50 percent of voters approve of independence.




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Dutch politician's trial for anti-Islamic statements begins before new judges
Ashley Hileman on February 7, 2011 1:09 PM ET

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[JURIST] The Amsterdam District Court began the new trial of right-wing Dutch politician Geert Wilders [personal website; JURIST news archive] Monday after replacing the previous panel of judges. The replacement panel will now hear the case [BBC report] against Wilders, which stems from charges that he made inflammatory statements against Islam, calling the religion "fascist" and comparing the Koran to Hitler's book Mein Kampf. An independent appeals panel dismissed the original judges [JURIST report] in October amidst allegations of bias against Wilders that his lawyer argued was illustrated by their refusal to allow the defense to recall a witness. Wilders' initial trial was scheduled to conclude in November, and he intends to call witnesses and present evidence that was barred during that trial. If convicted on the charges, he faces fines or a maximum sentence of one year in prison.

Prior to their dismissal, the panel members heard the prosecution's case, which culminated in a request that Wilders be acquitted on all charges [JURIST report]. The prosecutors based their request on determinations that the politician's statements were directed at Islam and not Muslims themselves and additionally, that the evidence failed to establish that he intended to incite violence. The presentment of the prosecution's case followed an order from a panel of Dutch judges to resume the trial after rejecting claims of judicial bias [JURIST report]. The trial had previously been suspended [JURIST report] after a lawyer representing Wilders accused one of the judges of making a statement which cast him in an unfavorable light to the jury. Prior to the start of his trial, Wilders announced [JURIST report] that the Dutch government would 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.




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UK urged to withdraw from Europe rights court
Zach Zagger on February 7, 2011 11:43 AM ET

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[JURIST] UK think tank Policy Exchange [think tank website] called Monday for the UK to withdraw [text, PDF] from the European Court of Human Rights (ECHR) [official website] in favor of a domestic high court. Senior UK judge, Lord Leonard Hoffman, wrote the foreword, saying the "Strasbourg court has taken upon itself an extraordinary power to micromanage the legal systems of the member states," pointing specifically to a controversial ruling [JURIST report] that the UK could not take away convicted prisoner's right to vote. The report, written by former government adviser Dr. Michael Pinto-Duschinsky, explains that the ECHR has gradually grown in power. It calls for the UK to try to negotiate reforms with the court to limit its jurisdiction, and, if unsuccessful, states "the UK should consider withdrawing from the jurisdiction of the European Court of Human Rights in Strasbourg and establishing the Supreme Court in London as the final appellate court for human rights law." The UK currently incorporates the European Convention on Human Rights [text, PDF] into its law, but the ECHR has the final interpretation. The report suggests that, if the UK pulls out, a domestic court would be final arbiter on human rights issues, and there would be no right to appeal to the ECHR. Still, some legal experts in the UK say that severing ties with the European court would harm its commitment [BBC report] to protecting human rights and to the Council of Europe and the EU [official websites].

The ECHR and the UK have also clashed over the issue of extradition of terror suspects. Last month, the UK government's independent reviewer of terror laws published a report [JURIST report] saying that rulings from the ECHR made it difficult to remove foreign terror suspects from Britain. The ECHR refused to grant the government's request that a terror suspect be required to show that it is more likely than not that he would be subject to ill-treatment. The ruling lowered the suspect's burden of proving that he would be faced with ill-treatment upon returning to his home country. Last July, the ECHR stayed the extradition of four terrorism suspects [JURIST report] from the UK to the US, holding that potential punishment could violate Convention's provisions on the prohibition of torture and inhumane or degrading treatment.




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Rights groups urge Bush prosecution under torture convention
Dwyer Arce on February 7, 2011 10:13 AM ET

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[JURIST] The Center for Constitutional Rights (CCR) and the European Center for Human Rights (ECCHR) [advocacy website] on Monday urged the signatory states of the UN Convention Against Torture (CAT) [text] to pursue criminal charges [press release] against former US president George W. Bush [JURIST news archive]. The call came as the rights groups announced that two criminal complaints [text, PDF] were to be filed on Tuesday in Switzerland against Bush before he canceled his February 12 trip to the country. Swiss law requires the defendant to be in the country before an investigation can be opened. The complaint was to be accompanied by extensive supporting documents [materials, PDF]. The groups claimed that Bush canceled his trip due to the impending indictment, an assertion that Bush has denied [Guardian report], and called on other signatory states to begin similar investigations against Bush. The groups urged that he is not entitled to any immunity as a former head of state under the CAT, and argued that Bush "bears individual and command responsibility for the acts of his subordinates which he ordered, authorized, condoned or otherwise aided and abetted, as well as for the violations committed by his subordinates which he failed to prevent or punish." The CCR explained that CAT signatories, which comprise 147 countries including the US, are obligated to pursue charges:
While the US has thus far failed to comply with its obligations under the Convention Against Torture to prosecute and punish those who commit torture, all other signatories, too, are obligated to prosecute or extradite for prosecution anyone present in their territory they have a reasonable basis for believing has committed torture. If the evidence warrants, as the Bush Torture Indictment contends it does, and the US fails to request the extradition of Bush and others to face charges of torture there, CAT signatories must, under law, prosecute them for torture.
The indictment cites Bush's recent memoir Decision Points as establishing his individual responsibility. In the book, Bush admits to the personal authorization of waterboarding and other so-called "enhanced interrogation techniques." Criminal investigations against Bush are ongoing in Germany, France and Spain under those countries' universal jurisdiction statutes.

Other calls to investigate the criminal culpability of Bush and officials in his administration have been rejected consistently by US officials [JURIST report]. In November, the American Civil Liberties Union (ACLU) [advocacy website] urged US Attorney General Eric Holder to investigate Bush for violation of the federal statute prohibiting torture [18 USC § 2340A]. Also citing his memoir, the ACLU argued that the use of waterboarding has historically been prosecuted as a crime in the US. The letter also argued that failure to investigate Bush would harm the US's ability to advocate for human rights in other countries. Bush's secretary of defense Donald Rumsfeld [JURIST news archive] has also faced possible criminal charges in Europe, when, in 2007, a war crimes complaint was filed against him [JURIST report] in Germany for his involvement in detainee treatment. The case was later dismissed [JURIST report].




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Lebanon tribunal meets to define 'terrorism' for Hariri case
Sarah Paulsworth on February 7, 2011 10:00 AM ET

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[JURIST] The UN Special Tribunal for Lebanon (STL) [official website; JURIST news archive] met on Monday to define key terms related to the assassination of former Lebanese prime minister Rafik Hariri [BBC profile; JURIST news archive]. In particular, the STL is seeking to define the term "terrorism" [AP report] in order to determine which laws to apply in the case against persons accused of involvement in the February 2005 truck bomb that killed Hariri and 22 other people. To date, there is no international consensus on what constitutes the crime of terrorism. This process marks the beginning of the judicial process [Al Jazeera report], after a lengthy investigation. Indictments could be unsealed later this month, with the trial starting in a year. The STL is the first international court with jurisdiction over the crime of terrorism [AFP report].

Last month, STL Prosecutor Daniel Bellemare filed [JURIST report] a sealed indictment [statement, PDF; press release] with the tribunal's pretrial judge charging an unknown number of people for their roles in Hariri's assassination. The names of those indicted will be kept confidential [Lebanon Daily Star report] until the pretrial judge reviews and approves the indictment, but many believe that the indictment names members of Hezbollah [CFR backgrounder]. In August, Hezbollah submitted evidence to the STL [JURIST report] linking Israel with the bombing. The STL asked for the evidence [JURIST report] a week earlier after Hezbollah Secretary General Hassan Nasrallah [BBC profile] claimed to have proof that Israel was behind the bombing. Last February, the head of the STL reassured [JURIST report] the Lebanese public that the investigation is on track. When asked about the progress of the investigation into the death of Hariri, the head of the STL "underlined the fact that the Tribunal already has in place all the legal and administrative instruments necessary for its work, and is fully operational so that justice may be dispensed with complete independence and impartiality in accordance with the highest international standards." The STL was established 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.




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