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Legal news from Friday, September 16, 2011




Netherlands to propose burqa ban
Michael Haggerson on September 16, 2011 3:01 PM ET

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[JURIST] Dutch Prime Minister Mark Rutte [official profile] announced on Friday that the government will propose legislation to ban burqas [JURIST news archive] and other face coverings. The proposal is being submitted in cooperation with conservative politician Geert Wilders [official website, in Dutch; JURIST news archive] and the Party for Freedom [party website]. The government contends that the proposed legislation does not represent a restriction on religious freedom but rather is an attempt to promote gender equality [Reuters report]. Wilders announced his plans to ban burqas [JURIST report] last October.

A similar ban on burqas recently took effect in Belgium [JURIST report] in July. The French Constitutional Council [official website, in French] approved another similar bill making it illegal to wear burqas [JURIST report] in public last October, and the burqa ban went into effect in April [JURIST report]. A French Muslim couple filed a challenge to the burqa ban [JURIST report] in the European Court of Human Rights [official website] in June. In August 2010 Austria's conservative Freedom Party [party website, in German] called for a special vote [JURIST report] on whether burqas and the construction of minarets should be prohibited. In July 2010 Spain's lower house of parliament, the Congress of Deputies [official website, in Spanish] rejected a proposal to ban burqas and other face veils [JURIST report]. The Parliamentary Assembly of the Council of Europe [official website] voted unanimously to reject [JURIST report] any general prohibition on the wearing of the burqa or other religious clothing.




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ICC opens hearing for DRC war crimes suspect
Sarah Posner on September 16, 2011 2:39 PM ET

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[JURIST] The International Criminal Court (ICC) [official website] on Friday opened the confirmation of charges hearing against accused war criminal Callixte Mbarushimana [case materials]. Mbarushimana, former leader of the Democratic Forces for the Liberation of Rwanda (FDLR) [GlobalSecurity backgrounder], is charged with 13 counts of war crimes and crimes against humanity committed in the Democratic Republic of the Congo (DRC) [BBC backgrounder] in 2009. In September 2010, the ICC issued a warrant [text, PDF] for Mbarushimana's arrest on charges including attacks against civilian population, murder, torture, rape, inhumane acts, inhumane treatment and persecution. On Thursday, ICC Judge Sanji Mmasenono Monageng decided [decision, PDF] that the prosecution could not disclose to the defense the name of the villages referenced by two witnesses or refer to this information at the confirming hearings. During the public confirming hearing, the ICC's Pre-Trial Chamber decides which, if any, charges will brought against Mbarushimana by the prosecution.

In August, Judges for the ICC postponed [JURIST report] the opening of Mbarushimana's confirmation of charges hearing, originally set for August 17, until September 16. In postponing the hearing, the judges wrote, "that disclosure related issues raised just prior to the confirmation have rendered it impossible to fairly conduct the confirmation hearing on the scheduled date." No further reasons were given. Mbarushimana's lawyer, Nick Kaufman, expressed disappointment with the decision. Mbarushimana made his initial appearance [JURIST report] before the ICC in January and denied the charges against him.




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Obama signs patent reform bill
Michael Haggerson on September 16, 2011 1:15 PM ET

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[JURIST] US President Barack Obama [official website] signed the America Invents Act [text, PDF; HR 1249 materials] into law on Friday. The Senate [official website] approved the bill earlier this month [JURIST report], and the House of Representatives [official website] approved the bill in June [JURIST report]. The act represents the first change to the American patent system since 1952 [CNN report]. Major differences include changing the patent system from first-to-invent to first-to-file, allowing the US Patent & Trademark Office (USPTO) [official website] to keep all of the fees generated from patent filing rather than having them diverted by Congress, allowing third parties to introduce relevant material to patent examiners during the patent application review process and removing the "best mode" requirement from patents. The changes are intended to give the USPTO greater autonomy, increase funding so the USPTO can address the substantial patent application backlog [USPTO materials] and decrease the amount of patent litigation. The Coalition for Patent Fairness [advocacy website] stated [press release] that the America Invents Act "is an important step forward for the nation's patent system" and that it will "harmonize America's patent system and allow us to continue to compete in the international marketplace."

Patent holding firms, dubbed "patent trolls" [Filament backgrounder], have been a controversial [Patently-O report] subject for the US patent system to address. Noted patent holding companies include Intellectual Ventures and Asure Software [corporate websites]. Many patent holding companies generate their revenue solely by suing other companies for patent infringement and do not produce anything of their own. The America Invents Act attempts to address the "patent troll" problem by decreasing the number of "junk" patents that are issued via increasing funding to the USPTO and allowing third parties to submit relevant materials during the patent review process. Patent litigation by and against patent holding firms has been especially rampant in the mobile phone business. Last month Google purchased 1,023 patents from IBM [corporate websites] in order to defend itself against smartphone patent-infringement lawsuits [Bloomberg report]. Earlier that month Google also purchased Motorola [corporate website] for USD $12.5 billion, primarily for Motorola's patent library [GeekWire report]. Other recent patent reform includes separate rulings by the US Supreme Court [official website] in June that patents will only be invalidated if the challenging party meets the "clear and convincing evidence" standard [JURIST report] and that the Bayh-Doyle Act [35 USC §§ 200-212], which vests patent rights to universities for inventions from federally funded research, did not give Stanford University [academic website] superior rights to the invention of its employee [JURIST report].




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Spain court sentences former Basque separatist leader for terrorism
Alexandra Malatesta on September 16, 2011 11:19 AM ET

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[JURIST] The Spanish National Court on Thursday sentenced [text, PDF, in Spanish] a former Basque separatist to 10 years in prison for terrorism and trying to resurrect a banned political wing of Euzkadi Ta Askatasuna (ETA) [GlobalSecurity backgrounder; JURIST news archive]. The court found [El Pais report, in Spanish] that Arnaldo Otegi acted on orders from ETA to create an organization that would replace Batasuna [BBC backgrounder; JURIST news archive] and serve as a political tool for ETA [AP report]. Otegi, who continues to be vocal about his ETA support, served 15 months in prison prior to his recent conviction for an ETA-related offense.

The Spanish government continues to actively pursue charges against ETA. In March 2010, the court sentenced a former Basque separatist party leader to two years in prison for promoting terrorism [JURIST report]. Earlier in the month, the court accused [JURIST report] the Venezuelan government of aiding ETA in a plot to assassinate members of the Colombian government in Spain. In February, the Interior Ministry of Spain said [JURIST report] that it took into custody the suspected ETA leader, along with two other people who are believed to be senior members of the group. In January, Spanish Judge Fernando Grande-Marlaska ruled [JURIST report] that ETA had tried three times to assassinate former Spanish prime minister Jose Maria Aznar in 2001 but had failed. In June 2009, the European Court of Human Rights (ECHR) upheld [JURIST report] Spain's ban of Basque political groups Batasuna and Herri Batasuna for their alleged ties to ETA.




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UK passes law limiting arrests under universal jurisdiction
Alexandra Malatesta on September 16, 2011 10:35 AM ET

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[JURIST] The UK Parliament [official website] on Thursday approved the Police Reform and Social Responsibility Bill [materials], making it more difficult for ordinary citizens to obtain arrest warrants for suspected war criminals present in the UK. The controversial act [AP report] removes the exclusive power of granting arrest warrants from local magistrates, requiring that all such warrants receive approval from the Director of Public Prosecutions (DPP) [official profile]. Justice Secretary Kenneth Clarke of the UK Ministry of Justice said [press release] about the bill, "[w]e are clear about our international obligations and these new changes to existing law will ensure the balance is struck between ensuring those who are accused of such heinous crimes do not escape justice and that universal jurisdiction cases are only proceeded with on the basis of solid evidence that is likely to lead to a successful prosecution." The amendment is seen as a move by the UK government to improve relations with foreign countries such as China and Israel, after several government officials were forced to cancel trips to the UK out of fears of being arrested. The bill states:
Where a person who is not a public prosecutor lays an information before a justice of the peace in respect of an offense to which this subsection applies, no warrant shall be issued under this section without the consent of the Director of Public Prosecutions. ... Subsection (4A) applies to (a) a qualifying offense which is alleged to have been committed outside the United Kingdom, or (b) an ancillary offense relating to a qualifying offense where it is alleged that the qualifying offense was, or would have been, committed outside the United Kingdom.
The bill was proposed [JURIST report] last December.

UK officials had promised Israel that a change in the law was coming for some time. Former UK attorney general Patricia Janet Scotland gave a speech early this year at the Hebrew University of Jerusalem, stating that UK officials were working to resolve the issue [press release] and protect senior officials traveling to the UK. In December 2009, former Israeli foreign minister Tzipi Livni [official website, in Hebrew] canceled a UK trip [JURIST report] after a British magistrate court issued, and later revoked, an arrest warrant for her on war crimes charges relating to Israel's Gaza offensive [JURIST news archive]. In October 2009, Vice Prime Minister Moshe Yaalon called off [JURIST report] a scheduled trip to the UK after legal advisers from the Israeli Ministry of Foreign Affairs [official website] said that he may be arrested over his involvement in a 2002 airstrike that killed a Hamas leader and 14 civilians.




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House GOP members attempting to delay 'Don't Ask Don't Tell' repeal
Hillary Stemple on September 16, 2011 9:06 AM ET

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[JURIST] Two Republican Congressmen have sent a letter [text; PDF] to Defense Secretary Leon Panetta [official profile] asking to delay the repeal of "Don't Ask, Don't Tell" (DADT) [10 USC § 654; JURIST news archive], scheduled to go into effect next Tuesday. Congressman Buck McKeon (R-CA), the Chairman of the House Armed Services Committee, and Congressman Joe Wilson (R-SC) [official websites], Chairman of the Military Personnel Subcommittee, indicated that they have requested copies of the regulations and procedures being applied to the law's repeal but have not yet received the information. They state that the failure to meet the committee's request leads them to believe that the policies and regulations to implement repeal are either incomplete or inaccurate. McKeon and Wilson also noted that they find it "unconscionable" that the policies and regulations surrounding repeal of DADT remain unpublished. According to the letter, some of the regulations necessary for repeal must go through a notice and comment period which is not scheduled to begin until September 20. McKeon and Wilson indicate that allowing repeal to go forward before the notice and comment period has been completed would contravene the July certification of the repeal [JURIST report]. The letter asks Panetta to delay the effective date of the DADT repeal until "[Department of Defense] managers have fully resolved all the questions emerging from the review and comment process."

Earlier this month, lawyers for the US Department of Justice (DOJ) asked the US Court of Appeals for the Ninth Circuit [official websites] to overturn a ruling that the DADT policy is a violation of service members' constitutional rights, arguing that the impendency of repeal renders the original court decision moot. In July, the Ninth Circuit ruled that DADT would remain partially in effect [JURIST report] during the 60 days prior to its newly-scheduled repeal. The court effectively reiterated its order issued [JURIST report] the previous week, in which it reinstated DADT but explicitly ordered the military to refrain from investigating, penalizing or discharging any of its members as originally provided for under the policy. Hours earlier, President Barack Obama [official website], Panetta and the Joint Chiefs of Staff certified DADT's repeal, scheduling the policy to end September 20. Obama signed the bill to repeal DADT [JURIST report] in December. The Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials] was approved in the Senate in December after being passed [JURIST reports] by the House of Representatives the week before. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.




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Egypt court sentences former Mubarak associates on corruption charges
Hillary Stemple on September 16, 2011 8:14 AM ET

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[JURIST] An Egyptian criminal court on Thursday sentenced three associates of former president Hosni Mubarak [JURIST news archive] to prison and ordered them to pay fines after they were found guilty on charges of corruption that occurred under the Mubarak regime. Ahmed Ezz, a steel tycoon and former ranking member of the now-dissolved National Democratic Party [JURIST report], was accused of obtaining low cost materials necessary to the steel industry by illegally manipulating [LAT report] state-owned businesses. The former head of Egyptian industrial development, Amr Assal, was accused of collaborating with Ezz and granting licenses [Ahram online report] to steel companies that were without merit. Former trade minister Rachid Mohamed Rachid, was also sentenced for collaborating with Ezz by granting licenses without receiving payment and for misusing public funds [Reuters report]. Rachid was also sentenced to prison in June for squandering public funds and profiteering [JURIST report]. Ezz and Assal were both ordered to serve 10 years in prison and were ordered to pay fines totaling USD $111 million. The sentencing judge indicated that Ezz and Assal's fine represented the public funds they had wasted. Rachid was sentenced in absentia to a 15-year prison term and was ordered to pay a USD $237 million fine. The men do have the option of appealing their sentences to the Court of Cassation.

The men's sentences were handed down as Egyptians await the outcome of the trial against Mubarak. Mubarak's trial began on August 3 [JURIST report] with Mubarak and his sons pleading not guilty to all charges of corruption and murder. Presiding Judge Ahmed Rifaat last month decided to end live TV broadcasts [JURIST report] of subsequent proceedings amid protests from the families of victims and praise from several courtroom lawyers who opposed the broadcasts. Officials chose a new location for Mubarak's trial for security reasons after reporting [JURIST reports] that the trial would take place at a convention center in downtown Cairo. In July, an Egyptian criminal court postponed the trial [JURIST report] of former interior minister Habib el-Adly, who also faces murder charges in relation to the pro-democracy demonstrations, so it would coincide with Mubarak's trial. In March, a commission of Arab and Egyptian human rights groups accused Mubarak [JURIST report] and the police of murdering protesters during the demonstrations in Egypt. Mubarak could face the death penalty [JURIST report] if convicted of ordering attacks on protesters. Amnesty International (AI) [advocacy website] reported that at least 840 people were killed [JURIST report] and more than 6,000 injured during the Egyptian protests.




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Federal judge blocks Florida law restricting doctors from asking patients about firearms
John Paul Putney on September 16, 2011 7:03 AM ET

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[JURIST] A judge for the US District Court for the Southern District of Florida [official website] on Wednesday temporarily enjoined [ruling, PDF] a Florida law restricting what physicians can ask or say about firearms to their patients as violative of the doctors' First Amendment rights. Under the Firearm Owners' Privacy Act (FOPA) [text], violating doctors risk losing their medical license and up to a $10,000 fine for "asking questions concerning the ownership of a firearm" or "unnecessarily harassing a patient about firearm ownership." Judge Marcia Cooke rejected Florida's argument that the law was about protecting Second Amendment [text; JURIST news archive] rights:
This case concerns one of our Constitution's most precious rights—the freedom of speech. "Open speech by a private citizen on a matter of public importance lies at the heart of expression subject to protection by the First Amendment." Courts have also emphasized the importance of the free flow of truthful, non-misleading information within the doctor-patient relationship. The State has attempted to inveigle this Court to cast this matter as a Second Amendment case. Despite the State's insistence that the right to "keep arms" is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights. The right to keep arms refers to the right to "retain," "to have in custody," and "to hold" weapons, including firearms. A practitioner who counsels a patient on firearm safety, even when entirely irrelevant to medical care or safety, does not affect nor interfere with the patient's right to continue to own, possess, or use firearms. The Act—directed at ensuring patients' privacy rights concerning firearm ownership—does not implicate rights that the Second Amendment protects.
The American Academy of Pediatrics (AAP) [advocacy website], also a party to the lawsuit to block the law, welcomed [press release, PDF] the ruling. FOPA took effect in June and is the first law of its kind in the US [AP report]. The temporary injunction seems likely to become permanent [Reuters report].

Gun control laws remain a contentious issue across the US. Previously, states took more or less restrictive approaches to gun control based on local state legislation. In June 2008, however, the US Supreme Court [official website] ruled in District of Columbia v. Heller [opinion, PDF; JURIST report] that the Second Amendment protects the right to possess a handgun for the purpose of self-defense, overturning the District of Columbia's restrictive firearms law. Two years later, in June 2010, the US Supreme Court ruled in McDonald v. Chicago [opinion; JURIST report] that the Second Amendment applies to states and municipalities as well as the federal government, thereby overturning Chicago's ban on handguns and raising considerable uncertainty about what amount of regulations of firearms was permissible. In July 2010, just four days after the Supreme Court's ruling in McDonald, the Chicago City Council [official website] unanimously approved a new gun control ordinance that bans gun shops in Chicago and prohibits gun owners from stepping outside their homes, including porches and garages, with a handgun. Shortly thereafter, a group of Chicago citizens, supported by both the National Rifle Association and the National Association of Firearm Retailers [advocacy websites], filed suit against the city [JURIST report] claiming the new gun control ordinance infringes on their constitutional rights.




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