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Legal news from Friday, March 4, 2011 |
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France burqa ban to take effect April 11
John Paul Putney on March 4, 2011 4:20 PM ET

[JURIST] French Prime Minister Francois Fillon [official profile, in French; BBC profile] confirmed in the Official Journal [official website, in French] Thursday that the controversial law [materials, in French] banning the burqa [JURIST news archive] and other face coverings in public places takes force April 11. Violators wearing a face covering may be fined up to 150 euros and/or required to attend citizenship classes. In contrast, anyone convicted of forcing a woman to cover her face may be fined up to 30,000 euro and jailed for one year [AFP report, in French], and the penalties double if that woman is a minor. The ban is not exclusive to the burqa, prohibiting any covering of the face in a public place [Metro report]. Controversy has surrounded the definition of "public place" [Guardian report], including streets, buses, trains, shops, banks, restaurants, theaters, libraries, museums, hospitals and while picking up children from school. The few exceptions include places of worship, the home and while traveling as a passenger in a car. Critics of the ban have accused French President Nicholas Sarkozy [official profile, in French; BBC profile] of pandering to right-wing voters [UPI report] in anticipation of the upcoming regional elections.
In October, the French Constitutional Council [official website] ruled [JURIST report] that the ban conforms with the Constitution. The bill was approved by the National Assembly in July and by the Senate [JURIST reports] in September. Legislation banning the use of Islamic burqas has been a point of contention recently in many European countries. In October, 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.


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Canada court sentences 'Toronto 18' member to life without parole
Drew Singer on March 4, 2011 1:33 PM ET

[JURIST] The Ontario Superior Court of Justice [official website] on Friday sentenced Shareef Abdelhaleem, a member of the Toronto 18 [Toronto Star backgrounder; JURIST news archive] terrorist group, to life in prison without parole. Justice Fletcher Dawson said that Abdelhaleem still posed a substantial risk to the public [Toronto Star report] and has not shown remorse for his part in the failed terrorist plot to enact a series of violent attacks on civilians, public officials and government buildings. Abdelhaleem, the first adult of the group to be tried, allegedly planned to profit from the attacks [Toronto Star report] by buying and selling certain stocks before the bombings. Before being convicted in January 2010, Abdelhaleem pleaded not guilty [JURIST report], arguing that he was entrapped by Shaher Elsoheny, his former classmate who worked as a police informant and provided intelligence [National Post report] against Abdelhaleem and others that eventually led to the arrests.
The accused leader of the terrorist group, Zakaria Amara, pleaded guilty [JURIST report] in 2009 to charges of planning to bomb three targets in Ontario. The same month, another member of the group, Ali Mohamed Dirie, was sentenced to seven years in prison [JURIST report] for his part in the plot, while another, Saad Gaya, pleaded guilty. In September, the first of the group to plead guilty, Saad Khalid, was sentenced to 14 years in prison [JURIST report], though the Canadian government is seeking to alter that sentence for time already served. The first of the suspects to be convicted under Canada's post-9/11 terrorism law was sentenced and released [JURIST reports] in May, with the court citing time served. The Toronto 18 were arrested [JURIST report] in 2006.


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Sierra Leone war crimes court to hear defense closing arguments
LaToya Sawyer on March 4, 2011 12:47 PM ET

[JURIST] The appeals chamber of the Special Court for Sierra Leone (SCSL) [official website] ruled [judgment, PDF] Thursday that the trial can accept the final brief of former Liberian president Charles Taylor [case materials; JURIST news archive] and that his lawyers can make closing arguments. The SCSL postponed [JURIST report] closing arguments last month in order to let the defense appeal a ruling that denied admission of a defense document due to untimely filing. The court's decision to postpone closing arguments was preceded by a boycott of the proceedings [JURIST report] by Taylor and his lawyers in protest of the court's decision to refuse to accept a written defense brief that was filed 20 days late. The appeals chamber decision rests on the concern that Taylor did not understand that the legal consequence of his lawyer's decision to walk out of the trial was a waiver of his right to give closing arguments. The court expressed its concerns for fundamental fairness and justice if it could not be establish that Taylor "knowing[ly], intellig[ibly] and voluntar[ily]" waived his right to present a closing argument:Had it been established that the Accused understood and agreed with the representations of the actions of his Counsel ... then there would have been no error in concluding that the Accused has forfeited his opportunity to file a final trial brief. ... However, in the face of the silence of the Accused, ... the conclusion that the Accused had waived his right to have his final argument considered was an error of fact, which, if uncorrected, could occasion a miscarriage of justice. To rule otherwise would be to disadvantage the uninformed Accused for the actions of his Counsel, which would be unfair, particular as there are other means by which the Trial Chamber can sanction Counsel without affecting the Accused's fundamental rights. Taylor's lawyer now faces disciplinary sanctions for last month's walkout and, arguably, for his misrepresentation of Taylor's instructions to do so. The appeals chamber also instructed the trial court to expeditiously set a date for the closing arguments.
Taylor is charged with 11 counts of war crimes and crimes against humanity and has denied all allegations [JURIST report] against him. Charges include [indictment, PDF] murder, rape, sexual slavery and acts of terrorism, all stemming from from a "campaign to terrorize the civilian population" of Sierra Leone. Taylor's defense lawyers, who began presenting their case [JURIST report] in July 2009, have claimed that he could not have commanded rebel forces in Sierra Leone while acting as the president of Liberia. His trial continued after the court denied his motion for acquittal [JURIST report] in May 2009. Although Taylor's trial is coming to an end, prosecutors previously expressed concern that the defense's list of 256 witnesses could make the trial last up to four additional years [JURIST report].


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South Dakota legislature passes bill requiring 72-hour waiting period for abortions
Brian Jackson on March 4, 2011 12:05 PM ET

[JURIST] The South Dakota State Senate on Wednesday passed a bill [roll call] that would require women to wait 72 hours after consulting with a doctor to have an abortion. In addition to the waiting period, HB 1217 [legislative materials] would require that pregnant women receive consultation at a "pregnancy help center" and that the women's doctors verify that this consultation occurred by asking the women for the name of the counselor and the name, address and phone number of the center. The bill also mandates that the content of the consultation be to, "inform her about what education, counseling, and other assistance is available to help the pregnant mother keep and care for her child, and have a private interview." The bill additionally allows for such centers to be listed on a South Dakota Department of Health [official website] registry, provided that one of the principal missions of the center be, "to educate, counsel, and otherwise assist women to help them maintain their relationship with their unborn children." The bill has drawn the ire of pro-choice groups [KDLT report] in the state and around the country, which have called the proposed law [ACLU press release] an "outragreous and extreme measure" and a "detriment to women's healthcare." South Dakota Governor Dennis Daugaard [official website] has indicated that he will review the bill, but is inclined to sign the measure [KSFY report].
South Dakota's proposed law is just one of many new laws regulating abortion that have appeared at both the state and federal levels in recent months. In late February, the Kansas House of Representatives passed a bill [JURIST report] that would restrict abortions after the 20-week time point. Nebraska had passed a similar bill [JURIST report] in April 2010. Earlier last month, the US House of Representatives proposed a budget which would deny all funding to Planned Parenthood [Boston Globe report]. In May 2010, the Oklahoma Senate passed a bill [JURIST report] requiring women seeking an abortion to complete a questionnaire, including their reasons for seeking the abortion. Oklahoma's governor vetoed that bill, but both chambers of the state legislature voted to override the veto [JURIST report].


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Austria police arrest former Bosnian general on war crimes charges
Andrea Bottorff on March 4, 2011 10:10 AM ET

[JURIST] Austrian authorities announced Friday they have arrested former Bosnian general Jovan Divjak under a 2008 international warrant issued by Serbian officials that accuses Divjak of war crimes. Divjak was arrested Thursday night at Vienna International Airport while traveling from Sarajevo to Italy, and he appeared Friday morning before a local judge who placed him in extradition custody [Tanjug report, in Serbian]. Under Austrian law, Divjak will remain in custody for 14 days [ORF report, in German] while the court reviews evidence and determines whether to allow extradition. Serbian officials believe that Divjak was involved in a May 1992 attack that killed up to 40 retreating soldiers [RFE/FL report] during the 1992-1995 Bosnian civil war [JURIST news archive]. In a unique situation, Divjak, who is ethnically Serbian, left the Yugoslav army during the war and enlisted with the Bosnian forces. He has since gained popularity [AP report] in Bosnia and Herzegovina (BiH) for his belief in a "multiethnic Bosnia" and his charity work for children. Some commentators predict that Serbia will have difficulty extraditing Divjak from Austria, drawing parallels to the country's failed extradition [JURIST report] last year of former Bosnian president Ejup Ganic [Trial Watch profile] from the UK to stand trial for alleged war crimes in Serbia.
Divjak's arrest is part of Serbian officials' ongoing effort to apprehend those responsible for the atrocities that occurred in the region during the 1992-95 civil war. Last month, French authorities arrested [JURIST report] Milorad Momic, a suspected former member of the Serbian paramilitary group, the Scorpions [JURIST news archive], which took part in the 1995 Srebrenica massacre [JURIST news archive] in Bosnia, where a total of 8,000 Bosnian Muslims were killed. Since his arrest, both Croatian and Serbian officials have requested his extradition [JURIST report] to face trial for war crimes charges filed against him in each country. Suspected BiH war criminal Dragan Crnogorac was arrested [JURIST report] in November in connection with the Srebrenica massacre. In August, the Court of BiH [official website] issued genocide charges [JURIST report] against four former Bosnian Serb soldiers, accusing them of participating in the murder of more than 800 Bosnian Muslims during the massacre.


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Federal judge stays earlier injunction against health care reform act
Carrie Schimizzi on March 4, 2011 8:46 AM ET

[JURIST] A judge for the US District Court for the Northern District of Florida [official website] on Thursday granted [order, PDF] the Obama administration's petition to stay his previous order [JURIST report] declaring the health care reform law [HR 3590; JURIST news archive] unconstitutional [order, PDF], on the condition that an appeal is filed within the next week. In January, Judge Roger Vinson voided the entire Patient Protection and Affordable Care Act (PPACA) upon ruling that requiring all Americans over the age of 18 to have health insurance violated the Constitution by exceeding Congress' Commerce Clause [Cornell LII backgrounder] power. The stay will allow the administration to continue its implementation of the law in other states until after appellate review. The administration had not formally sought a stay on the injunction, but rather had requested Vinson to "clarify" [JURIST report] his earlier judgment in order to determine its "potential impact" on the implementation of the Act. In his clarification order, Vinson reprimanded the administration for not filing a formal motion, but agreed to stay the injunction in order to expedite the appellate review:In the time since [the litigation was filed], the battle lines have been drawn, the relevant case law marshaled, and the legal arguments refined. Almost everyone agrees that the Constitutionality of the Act is an issue that will ultimately have to be decided by the Supreme Court of the United States. It is very important to everyone in this country that this case move forward as soon as practically possible. The administration must file its notice of appeal and seek an expedited review from the US Court of Appeals for the Eleventh Circuit [official website] before March 10.
The health care reform law is the subject of numerous legal challenges across the country. There are currently cases in 28 states challenging the provisions of the PPACA and the lower court rulings on issues surrounding the legislation have been mixed. Last month, Virginia Attorney General Kenneth Cuccinelli [official website] filed a petition [JURIST report] for a writ of certiorari [text, PDF] with the US Supreme Court [official website] asking the court to rule on the constitutionality of the law on an expedited basis, before the US Court of Appeals for the Fourth Circuit [official website] rules on the issue. In January, a judge for the US District Court for the Western District of Virginia [official website] dismissed [JURIST report] a lawsuit challenging a provision of the health care reform law. In October, a federal judge in Michigan ruled [JURIST report] 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.


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