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Legal news from Wednesday, April 20, 2011




Supreme Court hears arguments on attorney-client privilege
Jaclyn Belczyk on April 20, 2011 2:41 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 United States v. Jicarilla Apache Indian Nation [oral arguments transcript, PDF] on whether the attorney-client privilege entitles the US to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe. The US Court of Appeals for the Federal Circuit held [opinion, PDF] that the government cannot deny the tribe's request to discover such communications, adopting a fiduciary exception in tribal trust cases. Counsel for the petitioner, the US government argued that the tribal trust context does not meet the parameters for recognizing a private trust fiduciary exception. Counsel for the respondent noted:
The Jicarilla Apache Nation has sued the government for mismanaging millions of dollars of its trust monies. No trustee in this situation, including the government, is entitled to withhold the legal advice that it has received about managing the beneficiary's money. The beneficiary is entitled to see that legal advice, so that it can determine whether the trustee followed the advice.
Chief Justice John Roberts expressed concerns over the policy implications of the respondent's position in terms of the impact it would have on the attorney-client privilege.



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UK court upholds controversial online copyright infringement act
Daniel Makosky on April 20, 2011 1:08 PM ET

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[JURIST] The UK High Court on Wednesday upheld [judgment, PDF] the nation's Digital Economy Act (DEA) [text and materials], aimed at the prevention of online copyright infringement. Justice Kenneth Parker dismissed four of the five challenges [claim, PDF] brought in July by UK Internet service providers (ISPs) BT Group PLC and TalkTalk Telecom Group PLC [corporate websites], including claims that the bill was not given adequate scrutiny before its passage and that it may require certain amendments in order to comply with EU rules on privacy and policing by ISPs. Parker sustained the remaining challenge, which questions a provision that requires ISPs to pay 25% of the monitoring costs. The ruling allows the DEA to proceed toward entering effect, though officials are expected to reevaluate the funding sources. The court agreed to review [JURIST report] the matter in November.

Last year, the UK Parliament [official website] approved legislation [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. It calls on 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. The bill, known as a three-strikes law, imposes stricter penalties on repeat digital offenders than had previously existed, and has received a great deal of public criticism. Despite the controversy over the legislation, MPs who support it say that it is a necessary step to protect the creators of digital content. In November, UK Prime Minister David Cameron [official website] announced that Britain's intellectual property laws would undergo a review [JURIST report] with an eye towards modernization, in an effort to encourage innovation and small business. Cameron suggested that the law may be reformed in order to allow for increased use of copyright material without the owner's permission. The announcement, seen as an attempt to restore balance after the controversial DEA, was cheered by Internet freedom campaigners and small businesses alike.




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India high court urges end to practice of honor killing
Sarah Posner on April 20, 2011 12:53 PM ET

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[JURIST] The Supreme Court of India [official website] on Tuesday urged an end [judgment, PDF] to the practice of "honor killing" [AI backgrounder], calling the customary ritual "wholly illegal." The court said that officials who are aware of the practice before or after it occurs and do not report it will face criminal charges. Officials who fail to report perpetrators of the practice will be held directly or indirectly responsible for the crime. Additionally, criminal proceedings will be initiated against individuals who participate in honor killing. The case involved an altercation between two individuals regarding the proper method of tying bullocks. After a verbal insult was directed towards him by the victim, the accused assaulted the victim with sticks causing a fracture on his head. The two parties belong to different castes in India. The court stated:
There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.
The practice of parents killing their children is most common [Reuters report] when the person enters into a relationship with a member of a different caste or religion.

Last June, the Supreme Court of India ordered the central government and seven state governments to explain the steps they have taken to reduce honor killings [JURIST report]. The order came in response to a petition filed by Shakti Vahini [advocacy website], a non-governmental human rights organization seeking the implementation of stricter laws against the perpetrators of honor killings.




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Italy deports former Guantanamo detainee to home country of Tunisia
Dan Taglioli on April 20, 2011 12:35 PM ET

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[JURIST] Italy deported a Tunisian national and former Guantanamo Bay [JURIST news archive] detainee Wednesday for his connections to an extremist group that had planned various acts of terrorism in the country. Accompanied by Italian officials, Abdel Ben Mabrouk [NYT materials] was taken by plane to his native country under an agreement with Tunisian diplomats [AP report] brokered in Rome. Mabrouk was transferred to Italy in 2009 as part of US efforts to shut down the prison at Guantanamo, where he spent eight years as a suspected terrorist after being captured in Afghanistan in 2001. Having lived in Italy before traveling to Afghanistan, Mabrouk was returned to the Italian government, which imposed a two-year suspended sentence [JURIST report] for terrorist association. The judge based the sentence on recommendations from Mabrouk's lawyer and prosecutor Armando Spataro, finding that Mabrouk's time served at Guantanamo and the year he spent in an Italian prison were sufficient punishment. Italian intelligence broke up the group with which Mabrouk was associated after thwarting several of its terrorist plots, including a plan to blow up the famous Milan Cathedral with a car packed with explosives.

The continued operation of Guantanamo Bay remains controversial. Human Rights Watch (HRW) [advocacy website] criticized US President Barack Obama in January for failing to shut down the facility, as Obama's stated desire to close the Guantanamo prison [JURIST reports] has faced heavy opposition in Congress. Earlier in January, Obama signed a bill barring the transfer of Guantanamo detainees [JURIST report] to the US for trial. The legislation authorized funding for defense interests abroad, military construction and national security-related energy programs and barred the use of funds to transfer detainees into the US and limited funds available for transfers to foreign countries. The number of detainees at Guantanamo has been significantly reduced as the administration continues to transfer detainees to a growing list of countries including Germany, Italy, Spain, Maldives, Georgia, Albania, Latvia, Switzerland, Slovakia, Somaliland, Palau, Belgium, Afghanistan and Bermuda [JURIST reports].




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Supreme Court rules prisoners may not seek monetary damages for violation of rights
Aman Kakar on April 20, 2011 11:11 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday ruled [opinion, PDF] 6-2 in Sossamon v. Texas [Cornell LII Backgrounder] that states do not consent to waive their sovereign immunity to private suits for money damages under the Religious Land Use and Institutionalized Persons Act (RLUIPA) [42 USC § 2000cc, text]. Petitioner Harvey Sossamon sought injunctive and monetary relief from the state of Texas under RLUIPA for prison policies that prohibited him from using the prison chapel for worship. Justice Clarence Thomas, writing for the majority, rejected Sossamon's argument that the words "appropriate relief" in RLUIPA unambiguously waives the state's immunity from damages. Thomas stated that because "appropriate" is context dependent, "appropriate relief" is open-ended and ambiguous about the relief it includes. The court declined to consider a state to have waived its sovereign immunity where a statute can be inferred to have several plausible interpretations. Thomas also rejected Sossamon's contention that because RLUIPA § 3 was enacted pursuant to the Spending Clause [text] of the US Constitution, the states were on notice that they would be liable for damages because Spending Clause legislation operates as a contract, and damages are always available for breach of contract:
Applying ordinary contract principles here would also make little sense because contracts with a sovereign are unique: They do not traditionally confer a right of action for damages to enforce compliance. More fundamentally, Sossamon's implied-contract remedy cannot be squared with the rule that a sovereign immunity waiver must be expressly and unequivocally stated in the relevant statute's text.
The court also rejected Sossamon's attempt to apply § 1003 of the Rehabilitation Act Amendments of 1986's express waiver of state sovereign immunity for violations of any federal statute prohibiting discrimination by recipients of federal financial assistance. Thomas argued that RLUIPA § 3, which prohibits substantial burden on religious exercise, is not unequivocally a statute explicitly prohibiting discrimination within § 1003's meaning. Justice Sonia Sotomayor wrote for the dissent, and maintained that monetary damages are the usual remedy for violation of a legal right under the general remedies principles and included in the phrase "appropriate relief." Justice Elena Kagan took no part in the decision.

The court's ruling affirms the decision [opinion, PDF] by the US Court of Appeals for the Fifth Circuit [official website] that Sossamon was barred from suing for monetary damages because the language in RLUIPA did not provide clear notice to Texas that it was waiving its rights to sovereign immunity from monetary damages. The court heard oral arguments [oral argument transcript, PDF; JURIST report] in the case last year. At oral arguments counsel for Sossamon argued that damages were an appropriate remedy. Counsel for the US government argued as amicus curiae on behalf of the petitioner. Counsel for Texas argued that the ambiguous phrase "appropriate relief" does not permit damages.




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Ex-Rwanda prosecutor arrested in Belgium on genocide charges
Matt Glenn on April 20, 2011 9:31 AM ET

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[JURIST] Belgian prosecutors announced Wednesday that police in Belgium arrested Rwandan Mathias Bushishi Monday for his involvement in the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. Police arrested Bushishi [RFI report] on an international arrest warrant [Interpol warrant] that includes charges of war crimes and genocide. Bushishi is accused of using his role as prosecutor to assist in the extermination of Tutsis in the city of Butare during the genocide. Belgian law allows the government to prosecute Belgian residents for war crimes and genocide committed in other countries, meaning Bushishi may be tried in Belgium. Bushishi will appear in court [De Standaard report, in Dutch] Friday.

Last month, the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] sentenced former Murambi Commune mayor Jean-Baptiste Gatete to life in prison [JURIST report] after finding him guilty of committing genocide. In January, the ICTR began trying former Rwandan military official Idelphonse Nizeyimana and Germany started trying former mayor Onesphore Rwabukombe [JURIST reports]. Both men are accused of committing war crimes and genocide against Tutsis during the civil war. Belgium has previously tried and convicted four people in connection with the Rwandan genocide. In 2007, a Belgian court convicted former military official Bernard Ntuyahaga of premeditated [JURIST report] homicide for killing 10 Belgian peacekeepers during the conflict.




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UN urges Nepal to punish war crimes, increase women's rights
Julia Zebley on April 20, 2011 8:36 AM ET

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[JURIST] UN Deputy High Commissioner for Human Rights Kyung-wha Kang [official profile] spoke Tuesday to the Constituent Assembly of Nepal (CA) [official website] about several human rights issues in the country, including a reluctance to prosecute war crimes and insufficient progress increasing women's rights [texts, PDF]. The Office of the High Commissioner for Human Rights (OHCHR) and Human Rights Watch (HRW) [JURIST reports] have both previously appealed to the government of Nepal [BBC backgrounder] to investigate human rights violations allegedly committed during its civil war. Among Kang's recommendations were to establish a Disappearances Commission and a Truth and Reconciliation Commission to investigate allegations of disappearance, torture and other crimes:
Post-conflict amnesties cannot be granted to prevent prosecution of egregious human rights violations, including through pardons or the withdrawal of criminal charges. Transitional justice, and criminal justice, should work in a complementary fashion. In this regard, there are a number of cases currently pending in Nepal, for which police investigations, and judicial proceedings, should continue regardless of the fact the establishment of transitional justice mechanisms remains a priority. It is deeply troubling that to date in Nepal no-one has been held accountable for crimes committed during the conflict. Criminal investigations have not moved forward, some perpetrators have even been promoted, and little action has been taken to address and redress the grievance of the victims.
Although Kang was pleased that Nepal is considering criminalizing untouchability practices, she decried that "a number of current draft provisions do not protect basic rights, such as the right to equality. Here, I note particularly gender-based discrimination ... and inadequate respect for the rights of non-citizens." Kang and others are reportedly considering extending [Himalayan Times] the OHCHR-Nepal [official website] presence in the country for two additional years.

The decade-long Maoist guerrilla insurgency that left more than 13,000 people dead ended [JURIST report] in late 2006 when the Nepalese government signed a peace agreement that established the CA. In November, the CA announced it will finish drafting a new constitution [JURIST report] within 18 months. Last May, the CA voted to abolish the monarchy [JURIST report], giving King Gyanendera 15 days to abandon his royal palace, which cleared the way for Maoists to serve in government. As part of the peace accord, the CA was elected [JURIST report] in April 2008, an organization dominated by members of the Communist Party of Nepal - Maoists (CPN-M) [party website].




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