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Legal news from Wednesday, July 27, 2011 |
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Niger establishes anti-corruption agency
Maureen Cosgrove on July 27, 2011 3:29 PM ET

[JURIST] The government of Niger announced on Wednesday that it has established a new agency [press release, in French] tasked with combating corruption. The High Authority to Combat Corruption will be comprised of government administration and private sector representatives who will monitor corruption levels, conduct studies and investigations into corrupt behavior and implement measures aiming to deter corruption. The government justified the creation of the agency, arguing that corruption hinders economic growth and social well-being, and increases social inequality and poverty levels. The government also noted that the agency will improve Niger's compliance with the UN Convention Against Corruption [text, PDF; UNODC backgrounder].
Corruption allegations have plagued Niger in recent years. In May, an appeals court in Niger's capital Niamey ordered the release [JURIST report] of former president Mamadou Tandja [BBC profile] after dropping all corruption charges against the ousted leader who has been in custody for 14 months following a military coup [JURIST report] in February 2010. The military junta charged Tandja with corruption [Reuters report] following his removal, based on a junta investigation that found USD $128 million was stolen during Tandja's 10-year presidency. In September 2009, members of Nigerien opposition parties said that police had detained 30 former opposition lawmakers allegedly at the behest of Tandja. The 30 former members of parliament were arrested on charges of embezzlement [JURIST report], but were likely being targeted for their dissidence, as they refused to recognize Tandja's expansion of powers. In February of last year, the United Front for the Safeguard of Democratic Assets (Fusad), a Nigerien rights group, pushed for the prosecution [JURIST report] of Tandja on treason charges and corruption violating the constitution shortly after the coup.


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Ivory Coast President says all responsible for post-election violence will be prosecuted
Zach Zagger on July 27, 2011 3:06 PM ET

[JURIST] Ivory Coast President Alassane Ouattara [BBC profile; political website, in French] said Wednesday that all those responsible for war crimes during the country's post-election violence [JURIST news archive] will be prosecuted and brought to justice regardless of their side. Ouattara said that even his loyalists [Huffington Post report] responsible for the violence will be brought to justice. However, Ouattara said that due to the state of the Ivory Coast legal system that prosecution should be carried out by the International Criminal Court (ICC) [official website]. Last month, Ouattara granted permission [JURIST report] to the ICC to investigate the violence following the presidential elections in which former president Laurent Gbagbo [BBC profile] refused to leave office after losing the election. Ouattara made the statements before meeting with UN Secretary-General Ban Ki-moon [official website] at the UN headquarters in New York. The UN Security Council [official website] Thursday unanimously recommended extending [UN news report] the UN's peacekeeping mandate until July 31, 2012 at its current level of 9,800 troops. Ouattara, earlier this month, set up a commission of inquiry [JURIST report] to investigate crimes and human rights violations that took place during post-election violence. The commission will investigate the abuses and provide recommendations for implementing measures to prevent similar incidents.
The Ivory Coast has already issued international arrest warrants [JURIST report] for Gbagbo aides, most notably for Charles Ble Goude, the leader of Gbagbo's youth militia, accusing him of inciting ethnic violence and attacks against UN workers. Other members of Gbagbo's government also had warrants issued including the government spokesman Ahoua Don Mello, industry minister Phillipe Attey, and the ambassador to Israel Raymond Koudou Kessie. Twenty-one others already in detention were charged for violence and inciting tribalism and xenophobia. In June, ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] officially requested permission from ICC judges [JURIST report] to begin investigation into the Ivory Coast after determining that war crimes and crimes against humanity may have been committed during the violence. Since the Ivory Coast is not a member state of the ICC because it is not a signatory of the Rome Statute [text, PDF], the ICC can only investigate with the Ivory Coast's express permission. In April, Gbagbo was captured and forced from office [JURIST report] after refusing to leave despite losing last November's election to Ouattara, which resulted in months of fighting between Ouattara's and Gbagbo's forces.


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Alabama immigration law challenged in state court
Zach Zagger on July 27, 2011 1:16 PM ET

[JURIST] A group of immigrants in Alabama filed a lawsuit Wednesday in the Montgomery County Circuit Court [official website] to challenge the controversial Alabama immigration law [HB 56 text] as in violation of the state constitution. HB 56, signed into law last month [JURIST report], expands restrictions on undocumented immigrants by allowing law enforcement to detain individuals under "reasonable suspicion" they are undocumented and forces employers to verify the immigration status of potential employees. The five plaintiffs include [Fox News report] two Mexican immigrants, two undocumented immigrants who remain anonymous and another anonymous plaintiff who is married to an undocumented immigrant. This lawsuit differs from the one filed earlier this month [JURIST report] in federal court by rights groups led by the American Civil Liberties Union (ACLU) [advocacy website] because it focuses on violations of state law. Thomas Drake II, the attorney representing the plaintiffs, said that the Alabama constitution is more liberal [The Huntsville Times report] than the US Constitution because it protects a broader variety of rights and that they also plan to join the ACLU lawsuit. The Alabama Constitution [text] says in Article I § 30, "[t]hat immigration shall be encouraged; emigration shall not be prohibited, and no citizen shall be exiled." The ACLU lawsuit argues that HB 56 is preempted by federal law and that, among other constitutional violations, it violates the Fourth Amendment by subjecting citizens and non-citizens with permission to be in the US to unreasonable searches and seizures.
The ACLU and the Hispanic Interest Coalition of Alabama [advocacy website] filed a motion for a preliminary injunction [JURIST report] to block the implementation of HB 56 which is set to take effect on September 1. The rights groups argue that they are entitled to a preliminary injunction because of their substantial likelihood of success on the merits, irreparable injury to plaintiffs and because the injunction would not be adverse to the public interest. Alabama Governor Robert Bentley [official website] signed HB 56 into law last month, just one week after it was passed by the legislature [JURIST reports]. In addition to authorizing detention of individuals on reasonable suspicion they are illegal immigrants, the law provides harsh restrictions on employment for illegal immigrants. Businesses cited multiple times for hiring undocumented workers could lose their business licenses. Furthermore, undocumented immigrants are prohibited from applying for a job, and anyone transporting or harboring undocumented immigrants will be punished by a fine or jail time. Similar laws have been passed in Indiana, Georgia, South Carolina, Virginia, Oklahoma and Utah [JURIST reports]. Federal courts have enjoined laws in Arizona, Indiana, Georgia, Oklahoma and Utah [JURIST reports].


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Rights group urges DRC to arrest war crimes suspect
Maureen Cosgrove on July 27, 2011 12:55 PM ET

[JURIST] Human Rights Watch (HRW) [advocacy website] on Tuesday urged the Democratic Republic of the Congo (DRC) to arrest suspected war criminal Bosco Ntaganda [case materials], a Congolese general wanted [arrest warrant, in French] by the International Criminal Court (ICC) [official website] for war crimes. At a conference at the Holocaust Memorial Museum [official website; DRC conference page] in Washington, advocates called for Ntaganda's arrest prior to the DRC presidential and legislative elections that are scheduled to take place in November. Senior Researcher at HRW Anneke van Woudenberg said that arresting key war crimes suspects like Ntaganda would quell the unrest [RNW report] and "tear away the culture of impunity in Congo."
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. HRW urged the Congolese government to arrest [press release; JURIST report] Ntaganda in October 2010. Ntaganda lives and moves openly in Goma, a city in the eastern bloc of the 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.


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Federal court upholds stem cell research
Julia Zebley on July 27, 2011 11:42 AM ET

[JURIST] The US District Court for the District of Columbia [official website] on Wednesday dismissed [opinion, PDF] an appeal attempting to overturn April's decision [text, PDF; JURIST report] that ended an injunction [JURIST reports] on federal funding of embryonic stem cell [JURIST archive] research. The initial suit, brought by two scientists, was an attempt to stop federal funding for embryonic stem cells so there was more funding for their research on adult stem cells. Their appeal stated that April's decision only considered one of their arguments and that stem cell research is not "research" under the 1996 Dickey-Wicker Amendment [text]. Judge Royce Lamberth disagreed, although he was the judge who issued the original injunction, stating that he stands by the US Appeals Court for the District of Columbia Circuit [official website] decision in April as controlling law. A spokesperson for the White House called the decision a victory [press release], and said: "President Obama is committed to supporting responsible stem cell research and today's ruling was another step in the right direction."
Federal funding for embryonic stem cell research has been a long uphill battle for the Obama administration. In 2009, President Barack Obama [official website] signed [press release] an executive order [text; JURIST report] which removed the previous administration's eight-year restriction on federal funding for human embryonic stem cell research. After the preliminary injunction on stem research was granted last year, the Obama administration appealed [JURIST report] the injunction, arguing that the ruling was overbroad, endangering an array of research across multiple programs and centers while only serving a very attenuated economic interest of the plaintiffs in the case. While the appeals process was underway, the court granted a long-term stay which allowed federal funding to continue [JURIST report] while the court reached a decision.


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Indian couple challenges UK immigration law
Maureen Cosgrove on July 27, 2011 11:04 AM ET

[JURIST] An Indian couple on Wednesday challenged a UK immigration law that contains an English language speaking requirement. The provision [Home Office backgrounder], which was announced in June 2010 by UK Home Secretary Theresa May [official website], requires an immigrant to be able to speak English [Economic Times report] before joining his or her spouse in the UK. The couple's lawyer argued before the High Court in Birmingham that the language requirement violates the European Convention on Human Rights [text, PDF] and called the law "blatantly, admittedly, racially discriminatory." The couple, who have been married for 37 years and have six children, are seeking to live permanently in England after traveling between India and England for 15 years.
Immigration has long been a controversial topic in the UK. The number of UK employers prosecuted for hiring illegal immigrants has spiked [JURIST report] since changes to British immigration laws were implemented in February 2008. In 2006, the Home Office [official website] announced plans to overhaul [JURIST report] Britain's immigration system in a review [text, PDF] outlining how the Home Office's Immigration and Nationality Directorate [official website] will respond to the impact of globalization, changing travel patterns and evolving international crime and terrorism. The Labour Party government of former prime minister Gordon Brown pursued plans to institute a national ID card system [JURIST news archive] as part of the UK's effort to clamp down on illegal immigrants [JURIST report].


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Obama issues sanctions to fight international criminal organizations
Zach Zagger on July 27, 2011 10:25 AM ET

[JURIST] US President Barack Obama issued an executive order [text] Monday imposing economic sanctions to combat international organized crime [JURIST news archive] operations, freezing their US assets, preventing the transfer of property to the organizations and criminalizing providing aid the organizations. The order targets four specific Transnational Criminal Organizations (TCOs), though more could be named in the future: Los Zetas from Mexico, the Yakuza from Japan, the Camorra from Italy and the Brothers Circle based in Eastern Europe. The sanctions were imposed pursuant to the president's authority under the International Emergency Economic Powers Act (IEEPA) [50 USC § 1701 et seq.], which allows the president to exercise authority "to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat." The sanctions are part of an overall strategy outlined in a 25-page report [text, PDF] entitled the "Strategy to Combat Transnational Organized Crime." The report defines TCOs as:those self-perpetuating associations of individuals who operate transnationally for the purpose of obtaining power, influence, monetary and/or commercial gains, wholly or in part by illegal means, while protecting their activities through a pattern of corruption and/or violence, or while protecting their illegal activities through a transnational organizational structure and the exploitation of transnational commerce or communication mechanisms. There is no single structure under which transnational organized criminals operate; they vary from hierarchies to clans, networks, and cells, and may evolve to other structures. The report says that TCOs are able to exploit the "interconnected nature of our modern trading, transportation, and transactional systems that move people and commerce throughout the global economy and across our borders," and admits that the US effort against TCOs has been hampered by "a shift in U.S. intelligence collection priorities since the September 11, 2001." Robert Chesney of the University of Texas School of Law argues [Lawfare op-ed] that the new strategy against TCOs reflects a shift in the use of economic sanctions that recognizes the role of non-state actors in international affairs, similar to the way in which the US is combating foreign terrorist organizations.
Other countries are taking steps to combat organized crime. Last May, Bulgaria passed a bill that allows "civil confiscation" [JURIST report] enabling law enforcement to launch investigations of people who cannot account for their income, a move designed to target organized crime. Last July, Italian police arrested more than 300 individuals [JURIST report] and seized millions of euros worth of assets in a countrywide raid on the 'Ndrangheta [CNN backgrounder] crime organization. The UN Office on Drugs and Crime (UNODC) [official website] released a report last June detailing the globalization of international organized crime [JURIST report] and its threat to international security. The report specifically addressed the global economic impact of human and drug trafficking, sale of illicit firearms, piracy, identity theft and the illegal exploitation of natural resources. The report found that while countries such as Afghanistan and Colombia supply the majority of the world's illegal drugs, the profits from the drugs are primarily found in the countries where the drugs are being sold. Human trafficking is reported to generate a profit of USD $3 billion, with 140,000 victims being exploited in Europe alone. Piracy reportedly doubled over the prior year resulting in an annual income of US $100 million, the majority of which goes to organized crime.


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Rights group urges Bangladesh to ensure fair trials for mutiny defendants
Maureen Cosgrove on July 27, 2011 10:06 AM ET

[JURIST] Human Rights Watch (HRW) [advocacy website] on Wednesday urged [press release] the government of Bangladesh to ensure that those accused of being involved in a February 2009 mutiny [BBC backgrounder; JURIST news archive] are given fair trials. Members of the Bangladesh Rifles (BDR) [official website], a Bangladeshi paramilitary force, have been tried en masse for the mutiny, which left 74 dead. HRW's call comes in response to the mass sentencing of 657 border guards for their part in the mutiny [JURIST report] by a Bangladesh military court, bringing the total number of soldiers jailed for the mutiny to more than 3,000. Asia Director at HRW Brad Adams said that the mass trials are not fair and that the individuals responsible for the mutiny are not being held accountable:It is impossible to try hundreds of people at the same time and expect anything resembling a fair trial. The massacre shocked Bangladesh, but each of the accused should only be found guilty if the government provides specific evidence against them. The BDR mutiny was ugly and brutal, but the current approach appears to be a witch hunt against a group rather than an attempt to identify the individuals responsible for specific crimes. The government should rethink its approach to make sure the masterminds and perpetrators of serious offenses are brought to fair trial, but end the prosecutions of the rank-and-file who were simply in the wrong place at the wrong time. HRW also contends that the trials are being conducted in violation of the International Covenant on Civil and Political Rights, which Bangladesh is obligated to uphold. In addition to due process breaches, many of the detainees have been held without charge and without access to legal counsel.
A judge in the Court of Metropolitan Sessions, a criminal court in Bangladesh, indicted 430 people [JURIST report] last week for their roles in the mutiny. Last January, the civilian trial of 800 soldiers charged [JURIST report] with crimes stemming from their roles in the 2009 mutiny began in the capital city of Dhaka. The trial involves some of the most serious charges with those found guilty facing the death penalty. The trial is expected to last over a year and to include the testimonies of more than 1,000 individuals. In August 2010, a special Bangladeshi military court sentenced [JURIST report] 14 members of the BDR for their roles in the mutiny. The tribunal, led by BDR head Maj. Gen. Mainul Islam, fined each of the men Tk 100 and sentenced [BDNews24 report] them to prison terms ranging from four months to six years, one year short of the maximum possible sentence for rebellion under Bangladeshi law. About 3,500 other soldiers will face lesser charges in military courts.


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Colombia high court sends same-sex marriage question to Congress
Julia Zebley on July 27, 2011 9:58 AM ET

[JURIST] The Constitutional Court of Colombia [official website, in Spanish] ruled [press release, in Spanish] unanimously on Tuesday that same-sex couples are "families" under the law and their relationships cannot be invalidated nor can same-sex marriage be made illegal, but gave the Colombian Congress two years to legislate same-sex marriage rather than declaring it outright constitutional. Without congressional action, same-sex couples will be able to legally wed through a notary public and currently are considered to be in "de facto" unions. The original suit questions Article 113 of the Civil Code, which defines marriage as between a man and a woman. Declaring that regulating marriage is the legislature's responsibility, the court did make a statement in favor of same-sex marriage, arguing that church animosity toward same-sex couples is an unfair bias: "It is based on prejudice against the homosexual choice. There is no evidence that children raised by same-sex couples suffer traumas or problems. It is clear that same-sex couples who love each other succeed in building relationships. So there is no reason to deprive them the right to marry." The president of the Senate, Juan Manuel Corzo praised the decision [El Espectador report, in Spanish] as enshrining the will of the people. Corzo suggested the LGBT community draft a same-sex marriage bill and see if it passes, although he will vote against it. LGBT rights group Colombia Diversa [advocacy website] criticized the ruling [press release, in Spanish], saying the court ignored the "bias in the way the Congress of the Republic of Colombia has handled issues related to same-sex couples and failure of duty of protection of minorities in a deficit democracy like ours."
In 2008, the court held that same-sex couples should be given the same pension and health benefits [JURIST report] as those held by opposite-sex couples. In its decision [court materials, in Spanish], the court said that to exclude same-sex couples from receiving such benefits would undermine their fundamental right to human dignity and equal protection of the laws. The previous year, the Colombian Senate voted against landmark legislation [JURIST report] that would have given same-sex couples who have cohabited for over a period of two years similar rights as persons in heterosexual common law marriages. Earlier, the court ruled [JURIST report] that same-sex couples must be accorded the same property rights as other unmarried couples.


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New York AG files brief challenging federal same-sex marriage ban
Zach Zagger on July 27, 2011 9:07 AM ET

[JURIST] New York Attorney General Eric Schneiderman [official website] filed an amicus curiae brief [text, PDF] challenging the constitutionality of the federal Defense of Marriage Act (DOMA) [text; JURIST news archive] barring recognition of same-sex marriages [JURIST news archive]. The brief was filed [press release] in the US District Court for the Southern District of New York [official website] in the case of Windsor v. United States, arguing that DOMA violates the Equal Protection Clause [Cornell LII backgrounder] by precluding same-sex couples from the same rights and privileges of opposite-sex couples, and that it intrudes on what had previously been the the exclusive right of the states to define marriage. The brief argues that since DOMA discriminates based on sex and/or sexual orientation, it should be subjected to a heightened scrutiny standard and that it fails to meet that standard under the Fifth Amendment [text]. The brief further argues that DOMA violates federalism principles: By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States, and undermines and denigrates New York's law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex. Edith Windsor and Thea Spyer obtained a legal same-sex marriage in Canada in 2007, but Spyer died just two years later. Windsor is challenging the assessment of estate taxes to property transferred to her upon her wife's death that would not have been assessed on such a transfer between married partners of opposite sex. Scheidernman's action comes just days after New York enacted its same-sex marriage law after Governor Andrew Cuomo (D) [official website] signed the bill into law [JURIST report] last month.
US President Barack Obama has expressed support [JURIST report] for the repeal of DOMA and also support for Respect for Marriage Act [text], which was introduced by Congressional Democrats [JURIST report] in February to repeal DOMA. In March, House Speaker John Boehner (R-OH) [official website] announced that he was launching a legal advisory group to defend [JURIST report] DOMA, stating "[t]he constitutionality of this law should be determined by the courts, not by the president unilaterally, and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution." Democrats introduced the Respect for Marriage Act following February's announcement by the US Department of Justice (DOJ) [official website] that it will no longer defend the constitutionality [JURIST report] of Section 3 of DOMA, which restricts the federal definition of marriage to heterosexual couples, in court cases challenging the provision. The announcement came just one month after the DOJ filed a brief [JURIST report] with the US Court of Appeals for the First Circuit [official website] defending the constitutionality of DOMA.


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Ukraine judge refuses to arrest ex-PM Tymoshenko
Julia Zebley on July 27, 2011 9:05 AM ET

[JURIST] Ukrainian Judge Rodion Kireyev on Wednesday rejected a motion to arrest [press release] former prime minister Yulia Tymoshenko [personal website; JURIST news archive] for disruptive courtroom behavior. Kireyev made his decision based on his ability to control his courtroom, although he stated that Tymoshenko had disrespected him by not standing when addressing the court and that her supporters were causing distracting disturbances by protesting her trial. Tymoshenko said that Kireyev did not arrest her out of fear [tweet]. Tymoshenko's ongoing trial includes charges of abuse of office in connection with signing gas import contracts with Russia, misappropriating state funds and abuse of authority [JURIST reports] by purchasing "1000 Opel Combo" medical vans at a 20 percent mark-up during her time as prime minister from 2007-2010. Last week, the court dismissed [JURIST report] Serhiy Vlasenko, Tymoshenko's lawyer. In protest, Tymoshenko appeared without lawyers [Interfax-Ukraine report] Wednesday and filed a motion to remove Kireyev and requested a three-day recess [press release] to find new lawyers. Kirieyev refused to recuse himself in June.
Earlier this month, the Security Service of Ukraine (SBU) [official website, in Ukrainian] announced that they are launching a criminal investigation [JURIST report] into UESU. Last month, Tymoshenko filed a complaint [JURIST report] with the European Court of Human Rights (ECHR) [official website], alleging violations of the European Convention of Human Rights [text, PDF]. The complaint argued that the charges against Tymoshenko are politically engineered by current Ukrainian President Viktor Yanukovych [official website, in Ukrainian], Tymoshenko's political rival. ECHR President Jean Paul Costa refused to comment on the complaint [Korrespondent report, in Russian], but said the matter was before the court. The current combined case against her is not the first time she has been prosecuted. Last May, prosecutors reopened a separate criminal investigation [JURIST report] into allegations that Tymoshenko attempted to bribe Supreme Court judges. Tymoshenko's government was dissolved in March 2010 after she narrowly lost the presidential election to Yanukovych. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election.


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