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Legal news from Tuesday, March 15, 2011




UN urges Turkish government to respect freedom of expression
Andrea Bottorff on March 15, 2011 2:29 PM ET

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[JURIST] A spokesperson for the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] on Tuesday urged Turkish officials to respect journalists' freedom of expression [UN News Centre report]. The international concern increased after the Turkish government arrested nine journalists earlier this month based on accusations that the journalists were members of the political dissent group Ergenekon [BBC backgrounder; JURIST news archive] and had conspired to overthrow the government. The OHCHR spokesperson called for transparency in the arrests:
If there are genuine reasons to suppose that any journalists have committed crimes outside the scope of their journalistic work, then those reasons should be transparent to the journalists themselves, to their defence lawyers and to the rest of us.
Otherwise, the spokesperson said, the arrests appear to be "politically motivated" and are in violation of the International Covenant on Civil and Political Rights (ICCPR). Thousands of activists gathered in Istanbul on Sunday, protesting the arrests [AFP report] and calling for more protection of freedom of speech.

Turkey continues to face controversy regarding media freedom. In November, a Turkish Magistrate Court in Ankara reinstated [JURIST report] the nearly three-year ban on YouTube [media website; JURIST news archive] only days after the ban had been lifted. The court ordered access to YouTube blocked after video of former opposition leader Deniz Baykal in a bedroom with a female aide surfaced on the site. In September, the European Court of Human Rights (ECHR) [official website] ruled [JURIST report] that Turkey failed to protect the life of well-known Turkish-Armenian writer and journalist Hrant Dink [BBC obituary; JURIST news archive] and failed to adequately investigate his murder and infringed on his right of freedom of expression. Dink, editor of the newspaper Agos [media website], was shot and killed [JURIST report] in Istanbul in January 2007. Prior to his death, Dink was tried and then put on retrial [JURIST report] for "insulting Turkishness" by writing about the killing of Armenians during the Ottoman Empire.




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UN rights chief urges independent probe into Ivory Coast violence
John Paul Putney on March 15, 2011 2:27 PM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] called for an independent investigation into post-election violence in the Ivory Coast [JURIST news archive] on Monday as part of a report [text, PDF] to the UN Human Rights Council (UNHRC) [official website]. The report indicated that the human rights situation was deteriorating rapidly in the wake of the refusal by incumbent president Laurent Gbagbo to leave office after his defeat by challenger Alassane Ouattara [BBC profiles] in November:
With the political stalemate now going into its third month, the human rights situation in Cote d'Ivoire is becoming more precarious. Almost 300 people have been confirmed killed since the beginning of the crisis, and there are continuing reports of abductions, illegal detention and attacks against civilians. More than 35,000 people have been forced to flee their homes and seek refuge elsewhere, including in neighbouring countries. There are reports of thousands of youths being forcibly recruited and armed, presumably in preparation for violent conflict. The propagation of hatred and violence through the media remains a serious concern.
The report details information surrounding allegations of attacks on political opponents and unarmed civilians as well as sexual violence. Although the report includes events up until January 31, the OHCHR also presented recent developments, including ongoing attacks on political demonstrators, lack of basic services such as electricity and water, and rampant political propaganda.

In January, UN Secretary General Ban Ki-moon [official website] rejected the proposed recount [JURIST report] of November's Ivory Coast presidential runoff election results as a "grave injustice and unfortunate precedent." Also in January, UN officials expressed "grave concerns" [JURIST report] on continued post-election violence in the Ivory Coast, cautioning that genocide could be imminent. In December, UN officials urged all parties to the disputed presidential election in the Ivory Coast to honor the country's commitment to prevent genocide [JURIST report], crimes against humanity and ethnic cleansing under the 2005 World Summit Outcome Document [text, PDF]. Also in December, the Economic Community of West African States (ECOWAS) [official website] urged Gbagbo to step down, threatening the use of force [JURIST report] if he attempts to maintain power. Gbagbo has refused to cede power to president-elect Ouattara, who won the November 28 runoff election according to international observers.




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Uzbekistan government closes local HRW office
Maureen Cosgrove on March 15, 2011 1:23 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] reported Tuesday that the Uzbekistan government has ordered the closure [press release] of the advocacy group's Uzbek office. HRW learned from the Uzbekistan Supreme Court [official website, in Russian] on March 10 that, after maintaining a presence in the country for 15 years, it would have to vacate its offices in Tashkent. In a prior correspondence, the Uzbek Justice Ministry [official website] claimed that HRW ignored Uzbek legislation and lacked experience in the region. Uzbek authorities have provided no additional grounds for the order to vacate. According to HRW, the Uzbek government has obstructed its attempts to work in the country by denying or delaying visas and accreditation to HRW representatives and threatening criminal charges against one staff member. Several human rights activists and independent journalists are currently being detained in Uzbek prisons [Telegraph report], which have been criticized for allegedly subjecting prisoners to torture and dismal conditions. The executive director of HRW, Kenneth Roth [HRW profile], criticized the Uzbek government for its decision:
With the expulsion of Human Rights Watch, the Uzbek government sends a clear message that it isn't willing to tolerate critical scrutiny of its human rights record. ... The Uzbek government's persistent refusal to allow independent rights groups to carry out our work exacerbates the already dire human rights situation in the country, allowing severe abuses to go unreported, and further isolating the country's courageous and beleaguered human rights community.
This is the first time HRW has been forced out of a country in the group's 33-year history.

Uzbekistan has been criticized regularly for its poor human rights record. In April, UN Secretary-General Ban Ki-moon [official website] gave a speech [text], calling on Uzbekistan to deliver on promises as a signatory to various international treaties banning torture and civil rights violations in order to improve its human rights record. The rapidly growing Central Asian nation has long faced accusations from the West of rampant political oppression and a litany of human rights abuses, including the use of torture on its prisoners [HRW report]. The UN Human Rights Committee [official website] in March demanded [JURIST report] that Uzbekistan conduct an independent investigation of May 2005 clashes [BBC backgrounder; JURIST news archive] between protesters, soldiers and police in the city of Andijan that rights groups estimate left as many as 500 people dead [JURIST report]. The committee urged [report, DOC] Uzbekistan to comply with previous recommendations and supply the UN with information on Uzbek policies regarding police use of firearms on civilians. The report was the first to be issued [Reuters report] on Uzbekistan by the Committee since the Andijan clashes, which were sparked when thousands of protesters gathered [JURIST report] after rebels stormed a prison and freed a group of businessmen on trial for alleged Islamic extremism. In October 2009, the European Union (EU) announced that it would lift the last of the sanctions [JURIST report] it imposed on the country in November 2005 for its refusal to investigate the Andijan incident.




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Iraq to close controversial detention center over abuse claims
Sarah Posner on March 15, 2011 1:17 PM ET

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[JURIST] Iraq's Justice Ministry announced Monday that it will close a Green Zone detention center because of alleged human rights violations. Justice spokesperson Haidar al-Saad said this decision was made after last month's investigation [AP report] into the prison's living conditions. The prison population in the detention facility known as "Camp Honor" will be transferred to various other Iraqi prisons. Recently, human rights groups, including Amnesty International (AI) and Human Rights Watch (HRW) [advocacy websites], have responded to reports of detainee torture in Iraq, pressing for the Iraqi government to close detention centers that commit human rights abuses.

Last month, AI reported [text, PDF] that the Iraqi government is operating secret prisons [JURIST report], and suspects held in Iraqi custody have been systematically tortured since before the 2003 US invasion. The Central Criminal Court of Iraq (CCCI) [JURIST news archive], according to the report, regularly convicts defendants based on confessions extracted with the use of torture and ill-treatment. In September, AI published a report [text, PDF] alleging that the Iraqi government is unlawfully detaining and torturing [press release; JURIST report] thousands of detainees. In June, UN Special Representative to Iraq Ad Melkert urged the Iraqi government [JURIST report] to ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [text]. Melkert stated that Iraq had made several advances in recognizing human rights violations, but the government's policy implementation still faces several obstacles.




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Proposition 8 supporters argue for standing to appeal
Ashley Hileman on March 15, 2011 12:40 PM ET

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[JURIST] Proponents of Proposition 8 [text; JURIST news archive], California's same-sex marriage ban, on Monday urged the Supreme Court of California [official website] to allow them to defend the measure [brief, PDF] when state officials refuse to do so. Last month, the court announced that it would decide the critical procedural issue [JURIST report] to determine if the pending federal appeal of the invalidation of Proposition 8 can continue. The US Court of Appeals for the Ninth Circuit [official website] in January asked [JURIST report] the California Supreme Court to weigh in before proceeding with the appeal of the August ruling [JURIST report] by the US District Court for the Northern District of California [official website]. The uncertainty surrounding the proponents' standing is enhanced by the California Constitution's silence on the issue. In their argument for standing, the proponents emphasize the amount of work they have done to enact, support and defend the proposition up until this point, contending that this creates a "personal, particularized interest in the validity of their initiative entitling them to defend the initiative as real parties in interest if it is challenged in court." Moreover, they argue their entitlement is also derived from state law:
It is well settled under California law that official proponents, unlike mere political, ideological, or philosophical supporters of initiatives, may intervene to defend the initiatives they have sponsored if they are challenged in court. Indeed, this Court's precedent and established principles of California constitutional law make clear that allowing official proponents to intervene to vindicate the People's interest in successful initiatives when public officials will not do so is necessary to preserve the People's initiative power, a power that must be jealously defended by the courts.
California state officials have consistently declined to defend the initiative, and, in September, a California appeals court held [JURIST report] that they are not required to do so. If the California Supreme Court rules that state law does not allow the proponents take up the defense, the court of appeals will likely dismiss the case.

Earlier this month, California Attorney General Kamala Harris [official website] requested [JURIST report] that the US Court of Appeals for the Ninth Circuit lift the stay order prohibiting gay couples from marrying while the appeal is pending. Harris argued that the appeal is unlikely to succeed in light of the aforementioned jurisdictional concerns and the recent US Department of Justice (DOJ) decision to stop defending the constitutionality [JURIST report] of portions of the Defense of Marriage Act (DOMA) [text; JURIST news archive] on the grounds that laws concerning sexual orientation should be subject to a higher standard of review. Harris also questioned the rationality of continuing to enforce the stay, noting that the measure's supporters would not be subjected to harm if the order was lifted, whereas same-sex couples seeking to marry may face violations of their constitutional rights so long as the stay remains effective. A three-judge panel for the Ninth Circuit issued the stay [JURIST report] last August.




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Bahrain king declares 3-month state of emergency amid widespread protests
Zach Zagger on March 15, 2011 11:46 AM ET

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[JURIST] Bahraini King Hamad bin Isa Al Khalifa [official website] declared a three-month state of emergency [decree text, in Arabic] Tuesday in response to growing unrest in the island nation. The announcement of the martial law style system was made in state-run media and gives the military commander "authority to take measures and procedures necessary for maintaining the integrity of the homeland." More than 10,000 protesters stormed the Saudi Arabian embassy [NYT report] in Manama, the nation's capital, denouncing the monarchy. Foreign troops from Saudi Arabia and other surrounding nations have also moved into the country as a sign of the growing social and political tension in the Middle East and North Africa [BBC backgrounder]. Iran issued a statement saying the influx of foreign troops is unacceptable, but Bahrain's government has defended the move [AP report] as shield force reflecting a common regional destiny.

The state of emergency comes just days after a group of 22 Bahraini lawmakers, part of an independent pro-government bloc, called Sunday on the King to impose martial law under articles 36 and 123 of the Bahraini Constitution [text, PDF]. Last week, the member states of the Gulf Cooperation Council (GCC) [official website], which includes Bahrain, Saudi Arabia, Kuwait, Oman, Qatar and the UAE, deployed troops to Bahrain [BBC report] for the purpose of guarding oil installations and financial institutions. The Bahraini government's response to the ongoing protests have prompted international concern. In February, UN Secretary-General Ban Ki-moon [official profile] called for an end to violence against protesters [JURIST report] in the country, referencing attempts to quell protests sweeping across the region. Ban said that he is "disturbed by all these violent means of trying to disperse demonstrators, the freedom of expression, freedom of access to information, particularly the journalists."




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Obama administration urges Supreme Court to reject expedited health care review
Matt Glenn on March 15, 2011 9:21 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] filed a brief [text, PDF] with the Supreme Court [official website] Monday urging the court not to take a case challenging the constitutionality of the 2010 health care reform law [HR 3590 text; JURIST news archive] until a federal appeals court reviews the case. The DOJ argues that the case is ineligible for early review under Supreme Court Rule 11 [text, PDF] which prevents the court from taking a case pending before a circuit court of appeals absent "a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court." The DOJ filed the brief in response to a February petition for a writ of certiorari [JURIST report] filed by Virginia Attorney General Ken Cuccinelli [official website] seeking to send the case, which declared the Patient Protection and Affordable Care Act (PPACA) unconstitutional [opinion, PDF; JURIST report], directly to the Supreme Court. Despite the case's public importance, those challenging the law seek only to have the individual mandate, which takes effect in 2014, declared unconstitutional, and, argues the DOJ, "[t]here will be ample time before 2014 for this Court to decide whether to grant review in the normal course and, if it does so, to issue a decision." The brief notes that three circuit courts have already agreed to hear expedited challenges and that, should the circuit courts be bypassed, there is no guarantee the Supreme Court will hear the case any sooner since the court will not have time to hear the case until next term at the earliest. The DOJ seeks to distinguish this case from other cases the court had heard early, claiming that, unlike the others, allowing this to go through the normal appeals process does not threaten to cause irreparable harm. The US Court of Appeals for the Fourth Circuit [official website] is scheduled to hear the case [Commonwealth v. Sebelius materials] in May.

Earlier this month, the US Court of Appeals for the Eleventh Circuit [official website] agreed to expedite its review [JURIST report] of a case challenging the PPACA but did not decide whether it will hear the case en banc. The DOJ filed a brief [JURIST report] with the Fourth Circuit last month urging the court to overturn the district court decision striking down the individual mandate, arguing that the Constitution's Commerce Clause and taxing power gave Congress the ability to pass the mandate. Cuccinelli announced his intention to appeal directly to the Supreme Court [JURIST report] earlier in February, citing the exceptionally far-reaching policy implications of the PPACA. There are currently 28 cases challenging the constitutionality of the PPACA. Federal courts in Washington, DC, Virginia and Michigan have upheld the law, while a federal court in Florida [JURIST reports] has also ruled the the individual mandate in unconstitutional, striking down the law in its entirety.




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Guatemalans file class action suit over US medical experiments
Aman Kakar on March 15, 2011 8:17 AM ET

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[JURIST] Seven Guatemalans filed a class action lawsuit [complaint, PDF] on Monday with the US District Court for the District of Columbia alleging that they had been the subject of non-consensual human medical experimentation by the US Public Health Service (PHS) [official websites]. The suit was brought on behalf of all individuals who were subjected to experimentation in Guatemala or were infected to be used as vehicles to infect test subjects for the venereal disease experiments. The complaint alleges that the PHS conducted the human medical experiments in Guatemala to test whether penicillin could also be used as a prophylaxis immediately following exposure to the syphilis bacteria. The plaintiffs seek to establish similarities between their case and the "Tuskegee Study of Untreated Syphilis in the Negro Male" in the complaint. The complaint further alleges:
Once the PHS learned what it wished from each Guatemalan subject's induced exposure, it may have provided penicillin to presumably cure the infection. However, the PHS provided little follow-up to ensure that the subjects were actually cured of their infection. How long the study continued and how long treatment, if any, was provided to those affected is not clear.
The plaintiffs seek relief under the Alien Tort Statute [28 USC § 1350], the Fifth Amendment and the Eighth Amendment [materials]. The complaint asks the court to declare that their human rights were violated, award plaintiffs compensatory and punitive damages, and permanently enjoin the defendants from further engaging in human rights abuses against plaintiffs and the people of Guatemala.

Evidence of the PHS program [report] was discovered by Professor Susan Reverby [academic profile]. US President Barack Obama [official website] apologized [BBC report] to Guatemalan President Alvaro Colom for the testing. Reverby's study shows that the PHS infected more than 700 people in Guatemala with syphilis and gonorrhea. The patients were prisoners and people suffering from mental health problems and were unaware they were being tested.




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Federal court sentences convicted Somali pirates to life
Aman Kakar on March 15, 2011 7:12 AM ET

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[JURIST] The US District Court for the Eastern District of Virginia [official website] sentenced five Somali pirates to life sentences on Monday for attacking the USS Nicholas [official website]. Maritime piracy [JURIST archive] carries a mandatory sentence of life in prison [AFP report]. The men received an additional 80 years each for firearms and other piracy-related charges. US Attorney for the Eastern District of Virginia [official website] Neil MacBride expressed approval [press release] of the tough sentencing:
Today's sentences should send a clear message to those who attempt to engage in piracy: Armed attacks on U.S.-flagged vessels carry severe consequences in U.S. courts. Modern-day pirates not only threaten human lives but also disrupt international commerce by extorting hundreds of millions of dollars in ransom payments. It is believed that between 650 to 800 people are held hostage by Somali pirates and that the global cost of piracy is as high as $12 billion annually.
Last week, US District Judge Mark Davis rejected an appeal by the men to overturn their convictions [AP report]. The defense had argued that the men did not board or rob the frigate and cited a Congressional Research Service [official website] report that suggested that the 1819 definition of privacy may be outdated. Davis rejected this argument, citing that the report did not contain any original substantive legal analysis.

The five men were convicted on charges of piracy [JURIST report] in November, the first such conviction in the US in nearly 200 years. The men were found guilty on charges of piracy, attacking to plunder a maritime vessel and assault with a dangerous weapon for their roles in an April attack on the USS Nicholas, which was deployed to combat piracy in waters off the eastern coast of Africa. Last week, the US District Court for the Eastern District of Virginia indicted 14 suspects [JURIST report] for overtaking a yacht containing four Americans. The case involves the first US citizen to die in recent wave of international piracy. In January, the UN Secretary-General's special adviser on maritime piracy Jack Lang [official profile] proposed an international piracy court [JURIST report]. Due to the lack of such a court, several nations have been conducting piracy trials. A German court began the trial [JURIST report] of 10 suspected Somali pirates in that country's first piracy trial in 400 years in November. A Yemeni court sentenced [JURIST report] a group of 10 Somali pirates to five years in prison. Prior to these trials, Kenya was conducting the bulwark of piracy trials. However, the high court of Mombasa ruled that Kenya does not have jurisdiction [JURIST report] outside of its national waters, releasing nine suspected Somali pirates. Other nations that have conducted such trials include the Netherlands, Seychelles, Mauritius, Somalia, and Spain [JURIST reports].




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