[JURIST] The Bosnia and Herzegovina (BiH) war crimes court [official website] ruled [materials] on Thursday that two former Bosnian Serb police officers were guilty of aiding and abetting genocide. The court convicted Dusko Jevic and Mendeljev Djuric for taking part in the killing of 1,000 Muslim men during the 1995 Srebenica massacre [BBC backgrounder; JURIST news archive]. Jevic and Djuric oversaw the transportation of Srebenica's men to execution sites [RFE/RL report]. The court sentenced Jevic to 35 years in jail and Djuric to 30 years. More than 8,000 men and boys were killed during the Srebenica massacre. Bosnian Serb commander Ratko Mladic [ICTY case materials; JURIST news archive] is awaiting trial at The Hague on genocide charges related to the massacre.
Jevic and Djuric were indicted on genocide charges [JURIST report] in January 2010, along with fellow Bosnian Serb police officer Goran Markovic. Jevic served as Deputy Commander of the Special Police Brigade, while Mendeljev Duric and Goran Markovic served as Jahorina Training Center Squad Commanding Officers. Jevic and Djuric were arrested [JURIST report] in October 2009 after an investigation by the Special Department for War Crimes of the Prosecutor’s Office of BiH [official website, in Bosnian] suggested their involvement in the Srebenica massacre.
[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] insisted on Friday that anyone who engaged in violent acts relating to the April 12 coup d'etat in Guinea-Bissau [BBC backgrounder] should be held accountable [press release] for their actions. In the press release, Pillay voiced concern that the unstable situation in Guinea-Bissau following the coup could lead to crackdowns on human rights:
I cannot stress enough the importance of full respect for the fundamental human rights of freedom of movement and expression, as well as peaceful association and assembly. The transitional government has a clear duty to ensure that all human rights are fully respected and protected in the country, including the right to security and safety of those who need to return to their homes. I hope that, with the establishment of a transitional government, the right of individuals to free movement will be guaranteed.
Pillay also urged Guinea-Bissau's military to withdraw a list of 57 individuals who are barred from leaving the country until further notice.
Guinea-Bissau has experienced instability, resulting in several coups, since gaining independence from Portugal in 1974. Two weeks after the coup in April, the UN Security Council [official website] called for constitutional order in Guinea-Bissau [JURIST report]. Pillay hoped to prevent another coup when she urged [JURIST report] the people of Guinea-Bissau in March to refrain from any violence during the upcoming election. The same month, UN Secretary-General Ban Ki-moon [official profile] asked the government, military and civilians to maintain order [text] during the elections. In 2010, the EU discontinued [JURIST report] its EU SSR Guinea-Bissau Mission [official website] that provided assistance to the country's security forces in developing a legal framework, citing the breakdown of law and order in the country. A few months earlier, Ban called on leaders in Guinea-Bissau to respect the rule of law [JURIST report] and maintain constitutional order in the wake of another confrontation between the military and government.
[JURIST] Human Rights Watch (HRW) [advocacy website] criticized the Hungarian government [press release] on Friday for ignoring recommendations by the Council of Europe [official website] to change its media laws that allegedly curtail press freedom. HRW expressed concern that the media laws' requirement for journalists to register with the national government, as well as a mandate of "balanced" reporting would have a chilling effect on investigative journalism. In the press release, Lydia Gall, an HRW researcher, declared that the Hungarian government's efforts to amend the media laws were insufficient:
The Hungarian government has now made clear that it is not serious about protecting media freedom. The changes to media laws do little to address the serious concerns expressed by the Council of Europe and in some case may make matters worse.
The Hungarian parliament, the House of the Nation [official website], approved the amendments to the media laws on Thursday.
Hungary's media laws have come under fire recently. In December, Hungary's Constitutional Court [official website, in Hungarian] struck down [JURIST report] certain provisions of the media laws as an unconstitutional restraint on press freedom. Rights groups had urged Hungary to amend [JURIST report] the media laws. The media laws created the National Media and Communications Authority (NMHH) [official website, in Hungarian], which controls private television and radio broadcasters, newspapers and online news sites. Under the law, the government could impose costly fines on broadcasters, newspapers and news websites if their coverage is deemed unbalanced or immoral by the media authority. The Constitutional Court struck down provisions allowing the NMHH to regulate content in print and online media and limiting the rights of reporters to protect confidential sources.
The four suspects were among six individuals for which the ICC issued summons [JURIST report] last year. In October Human Rights Watch (HRW) [advocacy website] urged the ICC to expand its investigation [JURIST report] into the post-election violence. The ICC claimed jursidction over the case despite Kenya's calls for dismissal [JURIST report]. The Kenyan government argued that they were capable of prosecuting the accused men domestically.
[JURIST] A senior judge for the US District Court for the Southern District of Florida [official website] approved a settlement agreement on Thursday between JPMorgan Chase & Co. (JPMC) [corporate website; JURIST news archive] and more than one million litigants nationwide who sued over excessive overdraft fees. The settlement requires JPMC to pay $110 million to customers in order to resolve the litigation. Judge James Lawrence King, who approved the settlement, stated [Reuters report] that the agreement was fair, reasonable and adequate. Similar overdraft fee settlement agreements involving Royal Bank of Scotland and Toronto Dominion Bank [corporate websites] are still pending approval.
Overdraft fees have been the subject of copious litigation recently. In November King approved a settlement [JURIST report] in a class action suit against Bank of America (BOA) [corporate website] for excessive overdraft fees. The settlement called for BOA to pay $410 million to 13.2 million people who had BOA debit cards between 2001 and 2011. BOA was among more than two dozen US, Canadian and European lenders named as defendants in the class action lawsuit, which consolidated claims across the country in 2009. In their amended complaint [text, PDF], the plaintiffs claimed that BOA's practices were deceptive in that they did not reasonably notify customers that they had the option of opting out of the overdraft scheme and declining transactions. In November 2009, the UK Supreme Court [official website] ruled [JURIST report] that the British government could not challenge the fairness of bank overdraft fees as a matter of law.
[JURIST] A judge for the US District Court for the District of Columbia [official website] on Wednesday ordered [opinion, PDF] the US Department of Defense (DOD) [official website] to turn over three videotapes depicting Kuwaiti Guantanamo Bay [JURIST backgrounder] detainees being forcibly removed from their cells. The ruling came in a Freedom of Information Act (FOIA) [official website] lawsuit [materials] filed in 2008 by the International Counsel Bureau [firm website] on behalf of relatives of several detainees. The government argued that the videos should not be released because it would violate the privacy of the guards seen in the videos. Judge John Bates rejected this argument, ordering the DOD to produce the videos for in camera review by June 11.
[JURIST] A federal judge ruled [order, PDF] on Thursday that California's state pension system must afford same-sex spouses of state workers the same access to long-term care insurance as heterosexual spouses. Judge Claudia Wilken of the US District Court for the Northern District of California [official website] struck down a provision of the Defense of Marriage Act (DOMA) [text; JURIST news archive], declaring that the provision unconstitutionally prevented same-sex couples from getting equal pension benefits. Wilken declared [Mercury News report] that the DOMA provision denying same-sex spouses equal federal benefits was not rationally related to a legitimate government purpose. Wilken's ruling mirrors a holding in another Northern Distict of California case in February by Judge Jeffrey White that struck down DOMA as unconstitutional [JURIST report]. The US Court of Appeals for the Ninth Circuit [official website] is scheduled to hear an appeal of that ruling in September.
Governments across the globe have struggled to define rights for same-sex couples. Last week, the city of Buenos Aires passed a resolution [JURIST report] recognizing same-sex marriages for non-citizens. Two weeks ago, the Israeli Knesset [official website] rejected a bill [JURIST report] that would have legalized civil marriages in the country. Earlier that week Rhode Island Governor Lincoln Chafee signed an executive order [JURIST report] requiring government agencies to recognize same-sex marriages performed out-of-state. Earlier this month, voters in North Carolina passed a constitutional amendment to ban same-sex marriage [JURIST report]. In March, Israel's Ramat Gan Family Court ruled that a lesbian couple can both be recognized as mothers of a child they had together, finding that it would defy logic and common sense to deny parental rights to both women.
Our reports are founded on the simple truth at the heart of the Universal Declaration of Human Rightsthat all people are born free and equal in dignity and rights. Respect for human rights is not a western construct or a uniquely American ideal; it is the foundation for peace and stability everywhere. Universal human rights include the right of citizens to assemble peacefully and to seek to reform or change their governments, a central theme around the world in 2011. As President Obama has said, "History offers a clear verdict: Governments that respect the will of their own people, that govern by consent and not coercion, are more prosperous, they are more stable, and more successful than governments that do not."
It was a very important meeting with President Mugabe, where he recounted to me the past history of Zimbabwe and attributed some of the current problems to the past. I commended the president for making a call that there should be no violence in future elections. I urged him to continue to make such calls. I also urged him to ensure that the future elections will be free and fair and free from violence.
Zimbabwe is scheduled to hold elections within the next year.
The international community has scrutinized Zimbabwe's government recently. Earlier in May, a South African court ordered an investigation [JURIST report] into alleged human rights violations committed by Mugabe's government. The court order derived from legal action brought by human rights groups [JURIST report] attempting to prosecute Mugabe's government for crimes against humanity. In August the BBC reported that Zimbabwe security forces are running illegal mining camps [JURIST report] in the country's Marange area where recruited civilian workers are regularly tortured and forced into labor. According to the report, workers are subject to mauling by dogs, multiple beatings and rape. The camps, one of which allegedly has ties to a personal friend of Mugabe, were reported to have been operating for three years.
One can hardly imagine Congress, whether in approving the IAD or at any other time, empowering a state governor to veto a federal court habeas writ—designed to bring a federally indicted prisoner to federal court for trial on federal charges—because the governor opposed the federal penalty that might be imposed if a conviction followed. If we were now determining Congress' intent afresh, the improbability of such an intention would be apparent. ... Were Pleau and Governor Chafee to prevail, Pleau could be permanently immune from federal prosecution, and the use of the efficient detainer system badly compromised. He is currently serving an 18-year term in Rhode Island prison and, if the writ were denied, might agree to a state sentence of life in Rhode Island for the robbery and murder. Even if Pleau served only his current 18-year term, needed witnesses for federal prosecution could be unavailable two decades from now. Instead of a place of confinement, the state prison would become a refuge against federal charges.
Breyer, as presiding justice over the First Circuit, denied the stay without comment. Chafee maintains he will appeal [Providence Journal report] to the full Supreme Court.
Pleau was sentenced to 18 years in prison for violating his probation after being accused of killing a gas station attendant in the process of a robbery. No state charges were filed, as Rhode Island Attorney General Peter Kilmartin [official website] decided that the US Attorney's Office had jurisdiction for the crime beyond the probation violation. However, should federal proceedings not occur, Pleau has agreed to plead guilty and accept a life sentence without the possibility of parole. Rhode Island was one of the first states to abolish the death penalty, abolishing it in 1852. In April its New England neighbor Connecticut repealed the death penalty [JURIST report]. JURIST Guest Columnist Ben Jones, Executive Director for the Connecticut Network to Abolish the Death Penalty [advocacy website], argued that Connecticut's repeal of the death penalty is the beginning of a national trend of states moving away from capital punishment [JURIST comment].
[JURIST] A court in Bahrain on Thursday sentenced [Gulf Times report] Zainab Al-Khawaja, the daughter of jailed pro-democracy activist Abdulhadi Al-Khawaja [BBC profile; JURIST news archive] to one month in prison for trying to organize an anti-government protest, according to Bahraini opposition groups. The court also fined her $530 on Monday on a separate charge of insulting a government employee. Zainab Al-Khawaja refused to pay the fine [Al Jazeera report] and will face an additional 40 days in prison unless she pays it. Abdulhadi Al-Khawaja has been on hunger strike for three months, expressing opposition to the Bahraini government's ongoing trials of pro-democracy protesters. He was sentenced to life in prison [JURIST report] in June 2011. Zainab Al-Khawaja is scheduled for another hearing on Sunday [AP report] on other protest-related charges.
[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] 6-3 Wednesday in Blueford v. Arkansas [SCOTUSblog backgrounder] that the double jeopardy [Cornell LII backgrounder] clause does not prevent the re-prosecution of a greater offense if a jury deadlocks on a lesser-included offense. In this case, a mistrial was declared after a jury reached a unanimous decision to acquit on capital murder and first-degree murder but was deadlocked on lesser charges, including manslaughter. When the state attempted to retry Alex Blueford, he argued that Double Jeopardy had attached to the greater charges the jury would have acquitted him on. Chief Justice John Roberts, writing for the majority, disagreed, stating that any time in future theoretical deliberations, the jury was free to change its mind on those charges. Thus, no final verdict was ever reached to which Double Jeopardy could attach:
A simple example illustrates the point. A jury enters the jury room, having just been given these instructions. The foreperson decides that it would make sense to determine the extent of the jurors' agreement before discussions begin. Accordingly, she conducts a vote on capital murder, and everyone votes against guilt. She does the same for first-degree murder, and again, everyone votes against guilt. She then calls for a vote on manslaughter, and there is disagreement. Only then do the jurors engage in a discussion about the circumstances of the crime. While considering the arguments of the other jurors on how the death was caused, one of the jurors starts rethinking his own stance on a greater offense. After reflecting on the evidence, he comes to believe that the defendant did knowingly cause the death—satisfying the definition of first-degree murder. At that point, nothing in the instructions prohibits the jury from doing what juries often do: revisit a prior vote. "The very object of the jury system." after all, "is to secure unanimity by a comparison of views, and by arguments among the jurors themselves." A single juror's change of mind is all it takes to require the jury to reconsider a greater offense.
The court affirmed the decision [opinion text] of the Arkansas Supreme Court.
Justice Sonia Sotomayor wrote a dissent, which was joined by Justices Ruth Bader Ginsburg and Elena Kagan. She argued that a clear resolution on the two more major charges was reached, especially considering Arkansas' instructions that decisions must be made in order of the charges' severity. "In ascertaining whether an acquittal has occurred, 'form is not to be exalted over substance.' Rather, we ask whether the factfinder has made 'a substantive determination that the prosecution has failed to carry its burden.' Jurisdictions have different procedures respecting the announcement of verdicts and the entry of judgments, but that diversity has no constitutional significance. ... In this context, the forewoman's announcement in open court that the jury was 'unanimous against' conviction on capital and first-degree murder was an acquittal for double jeopardy purposes. Per Arkansas law, the jury's determination of reasonable doubt as to those offenses was an acquittal 'in essence.'" The Supreme Court granted certiorari in the case in October and heard oral arguments [JURIST reports] in January.
[JURIST] The US Supreme Court [official website] ruled unanimously [opinion, PDF] Wednesday in Freeman v. Quicken Loans Inc. [SCOTUSblog backgrounder] that to prove a violation of Section 8(b) of the Real Estate Settlement Procedures Act (RESPA) [text], a plaintiff must demonstrate that a fee was split between two or more persons, even though there appears to be no ostensible explanation for the fee. The goal of the statute was to prevent kickback and referral fees, but several couples sued under it after charges appeared on their mortgage loan agreements that they could not explain, as the fees indicated services that had never been rendered. Justice Antonin Scalia, writing for the court, rejected petitioners' argument that such charges violated the statute.
Nor is there any merit to petitioners' related contention that §2607(b) should not be given its natural meaning because doing so leads to the allegedly absurd result of permitting a provider to charge and keep the entirety of a $1,000 unearned fee, while imposing liability if the provider shares even a nickel of a $10 charge with someone else. That result does not strike us as particularly anomalous. Congress may well have concluded that existing remedies, such as state-law fraud actions, were sufficient to deal with the problem of entirely fictitious fees, whereas legislative action was required to deal with the problems posed by kickbacks and fee splitting. In any event, petitioners' reading of the statute leads to an "absurdity" of its own: Because §2607(b) manifestly cannot be understood to prohibit unreasonably high fees, a service provider could avoid liability by providing just a dollar's worth of services in exchange for the $1,000 fee. Acknowledging that §2607(b)'s coverage is limited to fee-splitting transactions at least has the virtue of making it a coherent response to that particular problem, rather than an incoherent response to the broader problem of unreasonably high fees.
This ruling affirmed a US Court of Appeals for the Fifth Circuit decision [opinion text].
The Supreme Court granted certiorari in the case in October and heard oral arguments [JURIST reports] in February. Quicken Loans [corporate website], the prevailing party in the case, praised [press release] the decision: "Quicken Loans has won this case at every step and in every court—the U.S. District Court in New Orleans and the US Court of Appeals for the Fifth Circuit—and now before the US Supreme Court. Although we always believed that we were on the right side of the law, it is especially gratifying to have the affirmation of the highest court in the country."
[JURIST] Amnesty International (AI) [advocacy website] on Wednesday published its annual report entitled State of the World's Human Rights [materials], which details the human rights landscape across the world in 2011. Much of the report focuses on the pro-democracy protests and civil unrest that swept the Middle East and Northern Africa in the last year. The report indicates that governmental responses to the protests were repressive, and that arbitrary arrest and detention and the suppression of freedom of expression are ongoing problems. AI Secretary General Salil Shetty contends that many human rights abuses are a result of poor leadership [press release]:
Failed leadership has gone global in the last year, with politicians responding to protests with brutality or indifference. Governments must show legitimate leadership and reject injustice by protecting the powerless and restraining the powerful. It is time to put people before corporations and rights before profits.
The report also highlights areas of progress, including a worldwide trend toward the abolition of the death penalty, as well as the arrests and criminal prosecutions of former Bosnian Serb Army commander Ratko Mladic [ICTY case materials; JURIST news archive] and Goran Hadzic [ICTY backgrounder].
[JURIST] The Supreme Court of Nepal [official website, in Nepali] on Thursday ordered the government to complete the final draft of the nation's new constitution by Sunday. The current administration had requested a three-month extension of the deadline, but the court denied the plea. The Constituent Assembly of Nepal (CA) [official website], the group tasked with creating the document, was elected to a two-year term in 2008, but the term has already been extended four times [AP report]. UN Secretary-General Ban-Ki Moon [official website] called on the CA [press release] and other parties involved to "make urgent efforts to preserve the constitution-making process and the gains they have made thus far." Ban also expressed concern that the CAs term could end before the final draft is adopted. It is unlikely that the administration will finish the constitution by the Sunday deadline.
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