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Legal news from Thursday, August 23, 2012




Russia to request US extradition of notorious arms dealer
Dan Taglioli on August 23, 2012 4:03 PM ET

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[JURIST] The Russian Justice Ministry [official website] announced Thursday that it has filed a formal request with the US government for a copy of the verdict of reputed Russian arms dealer Viktor Bout [BBC profile; JURIST news archive], who in April was sentenced by the US District Court for the Southern District of New York [official website] to 25 years in prison [JURIST report]. The request serves as an overture for a larger request that the US extradite the convicted arms dealer to Russia [Reuters report] to serve out his sentence. Bout, 45, was convicted in November [JURIST report] on four counts of conspiracy relating to his proposed sale of anti-aircraft missiles to drug enforcement informants posing as potential buyers for the guerrilla Revolutionary Armed Forces of Colombia (FARC) [NYT backgrounder], which the US has labeled as a designated foreign terrorist organization. Prosecutors had sought the maximum life sentence, portraying Bout as one of the world's worst criminals, a notorious arms dealer who has profited on war-torn nations since the 1990s. The US can refuse the Russian request, since the 1983 Convention on the Transfer of Sentenced Persons [materials] stipulates that an individual can only be handed over after completion of trial—Bout has maintained his innocence and is preparing an appeal, meaning the judicial process is not over. Bout is currently being held in Marion prison in Illinois.

Bout's trial lasted three weeks, and he was convicted after two days of jury deliberation. Defense counsel accused the US government of entrapment and presented Bout, an ex-Soviet officer and current Russian citizen, as a political prisoner. Russia's foreign ministry has rejected the 25-year sentence, framing the order as political and agenda-driven. Bout pleaded not guilty in November 2010, days after the Thai government extradited him [JURIST reports] to the US to stand trial. A month earlier Bout filed an appeal challenging the Bangkok Criminal Court's decision to dismiss [JURIST reports] money laundering and fraud charges against him, which removed obstacles to his US extradition. According to Bout's lawyer Lak Nitiwatanavichan, the arms dealer was seeking to have these charges reinstated [Bangkok Post report] to avoid extradition to the US. In August of that year an appeals court in Thailand ruled that Bout could be extradited [JURIST report], overturning a decision it issued a year earlier refusing to extradite Bout [JURIST report] on the basis that the accusations made by the US were not cognizable under Thai law. Bout was the subject of the book "Merchant of Death" [Reuters report], which inspired the 2005 movie of the same title, and is suspected of involvement in arms trafficking to conflict zones in Africa, South America and the Middle East.




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Libya sets September trial date for Gaddafi's son
Max Slater on August 23, 2012 3:56 PM ET

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[JURIST] Saif al-Islam Gaddafi [JURIST news archive], the son of former Libyan leader Muammar Gaddafi, will face trial in September, according to Libyan prosecutors. Although the International Criminal Court (ICC) [official website] has issued a warrant for his arrest for crimes against humanity, the militiamen who captured Saif al-Islam are insisting [BBC report] that he be tried in Zintan, Libya, the town where he has been held since last year. A spokesperson for Libyan prosecutors announced [Al Jazeera report] that the prosecutors have completed their investigation of Saif al-Islam's alleged crimes and will soon approve a charge sheet. Saif al-Islam was considered a likely successor to his father before an uprising last year toppled Muammar Gaddafi's regime. If convicted, Saif al-Islam could face the death penalty.

The dispute over who will try Saif al-Islam has soured relations between Libya and the ICC. Earlier this month Saif al-Islam said that he would prefer a trial in the ICC [JURIST report] because he felt he could not get a fair trial in Libya. In June four ICC staff members who traveled to Libya to speak with Saif al-Islam were detained [JURIST report] by Libyan security forces. They were in custody for nearly four weeks. Upon her release [JURIST report], ICC lawyer Melinda Taylor said she did not believe Saif al-Islam would receive a fair trial in the country. Three officials from the ICC and the Australian ambassador to Libya were able to visit [JURIST report] and assess the condition of the four detained ICC staff members after their detention. A judicial source in Libya told reporters shortly after their detention that the four could remain in "preventative" detention [JURIST report] for 45 days while an investigation is conducted. The four staff members were detained after Taylor was accused of attempting to give documents to Saif al-Islam that were from his former aid, Mohammed Ismail, who has been in hiding since the Libyan conflict [JURIST backgrounder] began.




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African Union, Senegal create special tribunal to try former Chad dictator
Dan Taglioli on August 23, 2012 3:23 PM ET

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[JURIST] The African Union (AU) [official website, English] and the government of Senegal on Wednesday signed an agreement creating a special tribunal in Dakar to try 69-year-old ex-Chadian dictator Hissene Habre [JURIST news archive] for killing and torturing thousands of political opponents during his reign from 1982 to 1990. The agreement calls for "Extraordinary African Chambers" to be created inside the existing Senegalese court structure [HRW report] in Dakar that will have sections to handle investigations, trials and appeals. The trial and appellate levels will each have two Senegalese judges and a president from another African country. While Habre is the only individual expected to be tried before the new tribunal, its official mandate will be to prosecute those most responsible for international crimes committed in Chad between 1982 and 1990, including genocide, crimes against humanity and war crimes. A 1992 truth commission report in Chad said that during his time in power Habre presided over up to 40,000 political murders [AFP report] and widespread torture. The newly created tribunal is expected to be operational by the end of the year.

Habre fled to Senegal after being deposed in 1990 and denies charges of killing and torturing tens of thousands of his opponents after coming to power in a bloody coup in 1982. The AU began talks with Senegal to come up with a plan for Habre's trial after the International Court of Justice (ICJ) [official website] ruled [JURIST report] in July that Senegal must either try Habre promptly or extradite him to Belgium for trial. The court's legally binding order also noted that Senegal had failed to make serious efforts to prosecute Habre, who has been been under house arrest there since 2005. In March lawyers for the Belgian government asked [JURIST report] the ICJ to force Senegal to bring Habre to trial in Belgium. In July 2011 Senegal reversed its decision to deport Habre [JURIST report] back to Chad after UN High Commissioner for Human Rights Navi Pillay [official profile] warned of possible torture. That month Pillay issued the plea [JURIST report] to stay Habre's deportation to Chad after the nation's courts sentenced him to death in absentia.




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South Korea court upholds abortion ban
Max Slater on August 23, 2012 3:10 PM ET

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[JURIST] South Korea's Constitutional Court [official website, in Korean] ruled on Thursday that the nation's 59-year-old ban on abortions is constitutional. The eight-judge panel was deadlocked 4-4 [AP report] in deciding whether to uphold the abortion ban, but six votes were needed to overturn it. South Korea banned abortions in 1953 with exceptions for rape, incest and severe genetic disorders. The Constitutional Court also upheld a South Korea law [AFP report] on Monday that punishes midwives and other persons who help administer illegal abortions with a prison sentence of up to two years. The court dismissed a challenge to that law, saying that reducing the punishment would only lead to more abortions being performed.

Abortion rights have been a contentious issue in the international community. Last year voters in Liechtenstein rejected a proposal [JURIST report] to legalize abortion in the country after the acting Head of State expressed displeasure with the law and threatened to veto the proposed change. In 2010 the Center for Reproductive Rights (CRR) [advocacy website] criticized [JURIST report] the restrictive abortion laws of the Philippines as a "human rights crisis," resulting in the death of thousands of women annually. In January 2010 Human Rights Watch [advocacy website] argued that Ireland's restrictive abortion laws increase health risks to women [JURIST report] and expose them to deliberate misinformation about abortion procedures. In July 2009 Amnesty International [advocacy website] called on Nicaragua to end its total ban on abortions [JURIST report], calling for the country to eliminate severe criminal punishments for those who seek or perform abortions.




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ACLU files lawsuit challenging Missouri ban on disturbing worship
Max Slater on August 23, 2012 2:16 PM ET

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[JURIST] The American Civil Liberties Union of Eastern Missouri (ACLU) [advocacy website] filed a lawsuit [complaint, PDF] in the US District Court for the Eastern District of Missouri [official website] on Wednesday challenging the constitutionality of a Missouri law that makes it a crime to disturb a worship service. The ACLU contends [press release] that the law in question, the House of Worship Protection Act (HWPA) [materials] is too vague and undercuts free speech rights under the First Amendment [text]. The HWPA defines "disturbing a worship service" as "intentionally and unreasonably disturbs a building used for religious purposes by using profanity, rude or indecent behavior, or making noise." In the press release, Brenda Jones, the executive director of the ACLU of Eastern Missouri asserted that the HWPA's language is unclear and could easily confuse both law enforcement officials and ordinary citizens:
The House of Worship Protection Act is so vague that our plaintiffs don’t know if their actions will now be considered disruptive under it. Law enforcement officers will also have trouble determining exactly what constitutes profane discourse or rude behavior.
The HWPA is scheduled to take effect on August 28.

The lawsuit was filed on behalf of the Surviors Network of those Abused by Priests (SNAP) and Voice of the Faithful [official websites], two organizations that engage in peaceful protests that the ACLU claims would be illegal under the HWPA. Both organizations have engaged in protests outside of churches that have included leafleting and holding signs. The ACLU alleges that the vague and broad language of the HWPA may prohibit these activities.




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Bahrain rights activist wins appeal of conviction for anti-government comments
Dan Taglioli on August 23, 2012 2:11 PM ET

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[JURIST] A Bahraini appeals court on Thursday overturned a conviction of prominent human rights activist Nabeel Rajab [JURIST news archive]. Bahrain's government attributed the ruling [AP report] to "uncertainty regarding the evidence submitted to support the lawsuit." Rajab, president of the Bahrain Center for Human Rights [advocacy website], was arrested in June and has served half of a three-month sentence [JURIST reports] for posting anti-government comments on his Twitter page [corporate website], where he has over 155,000 followers. His comments suggested [Reuters report] that residents of al-Muharraq district had made a recent show of support for Prime Minister Sheikh Khalifa bin Salman Al Khalifa only for financial gain. Commenting on the ruling [press release], UN Special Rapporteur on human rights defenders [official website] Margaret Sekaggya called on the Bahraini government to "immediately cease its campaign of persecution of human rights defenders in the country." Maina Kiai [official profile], Special Rapporteur on freedom of peaceful assembly and of association, echoed the call, stating that "the exercise of the right to freedom of peaceful assembly should not be subject to prior authorization from the authorities." The UN independent experts called for the immediate release of Rajab [UN News Centre report], who is still in prison on a three-year sentence imposed earlier this month [JURIST report] after he was convicted on three separate counts of taking part in "illegal gatherings" that yielded a one-year sentence each.

Tension between Bahrain's government and protesters has been on the rise since government forces clashed with protesters last year during pro-democracy demonstrations, which have taken place on an almost daily basis since the February 2011 Shiite majority uprising seeking greater political rights from the Sunni monarchy. The Bahrain Information Affairs authority announced last month that they had brought charges against 15 police officers [JURIST report] for alleged "mistreatment of inmates in custody." In June the government announced that it would pay $2.6 million in restitution [JURIST report] to citizens who lost family members during the violent protests to comply with recommendations of an independent commission who concluded that Bahrain authorities had used excessive force and tortured detainees involved in the pro-democracy demonstrations.




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South Korea high court overturns real name requirement for posting online
Dan Taglioli on August 23, 2012 12:41 PM ET

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[JURIST] The South Korean Constitutional Court [official website] on Thursday nullified a 2007 regulation that required South Koreans to use their real names in Internet forums. Under the terms of the regulation online discussion participants had to pass a verification process in order to express their opinions on most websites. The nine-justice court held [WSJ report] that the Real Name Verification Law amounted to prior restraint [Cornell LII backgrounder] that violated citizens' privacy. The court also found that the law did little to curb the anonymous online libel and defamation that it was established to reduce. The law was implemented after several prominent political and entertainment figures were targeted in anonymous online posts, to which authorities attributed several suicides. The Constitutional Court stated that harm resulting from online expression can be remedied through other existing laws providing for financial damages and criminal punishment.

Freedom of expression is an international concern. Earlier this month Human Rights Watch (HRW) [advocacy website] released a report alleging that the government of Angola [BBC backgrounder; JURIST news archive] is responsible for undermining freedom of speech protections [JURIST report] for its citizens, noting that the "political violence, intimidation of protesters, and crackdowns on peaceful demonstrations" might have a detrimental effect on the upcoming parliamentary election this month. In July HRW reported that a draft Iraqi cybercrime law would violate the international standards [JURIST report] protecting due process, freedom of speech and freedom of association, stating that the Information Crimes Law represents a tool for the Iraqi government to suppress dissidents, journalists and other human rights defenders who are increasingly utilizing the Internet for information and resources. Also in July the UN Human Rights Council [official website] passed the its first-ever resolution to protect the free speech of individuals online [JURIST report]. The resolution is written to guarantee Internet freedom, including the free flow of information and freedom of expression.




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Chile urged to ensure justice for victims of enforced disappearances
Max Slater on August 23, 2012 12:35 PM ET

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[JURIST] A panel of UN human rights experts on Tuesday urged Chile to make sure that people who have been convicted of enforced disappearances [AI backgrounder] serve their sentences [observations, in Spanish; press release]. The UN Working Group on Enforced or Involuntary Disappearances (WGEID) [official website] stated that while Chile has made great strides since it transitioned to democracy, many challenges remain. While the WGEID praised Chile for combating human rights violations in recent years, it stated that Chile needs to do more to ensure that justice is served:
Very few of the convicted perpetrators are effectively serving a sentence, due to the low penalties imposed or other benefits granted. The Declaration on the Protection of all Persons from Enforced Disappearance requires that acts of enforced disappearances are sanctioned in accordance with the gravity of the crime.
The WGEID also called on Chile to speed up its judicial process and create a national plan to search for disappeared persons.

Disappearances [JURIST news archive] have been a prevalent legal issue in recent years. In October 2010 a Guatemalan judge sentenced two former national police officers to 40 years in prison for the 1984 forced disappearance of Fernando Garcia [JURIST report]. In June 2010 a Colombian judge issued a landmark judgment [JURIST report] against army colonel Luis Alfonso Plazas Vega for the forced disappearance of 11 people after the 1985 hostage situation at the Palace of Justice in Bogota, sentencing him to 30 years in prison. In November 2009 the Argentine Senate approved a law [JURIST report] that authorizes the government to obtain DNA samples from individuals suspected to have been born to forced disappearance victims of the 1976-1983 "Dirty War" [GlobalSecurity backgrounder; JURIST news archive]. In September 2009 a Guatemalan paramilitary was convicted [JURIST report] and sentenced to 150 years in prison for the enforced disappearance of six indigenous persons during the Guatemalan civil war [GlobalSecurity backgrounder].




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HRW: Thailand army chief blocking criminal investigations
Max Slater on August 23, 2012 11:45 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] urged the government of Thailand [press release] on Thursday to order its army chief to stop obstructing investigations into political violence in 2010 arising from anti-government protests [JURIST news archive]. Last week the army chief, General Prayuth Chan-ocha, told the Thai Ministry of Justice [official website, in Thai] to stop accusing soldiers of killing protesters during government crackdowns in 2010 and not to publicize the findings of its investigations. HRW noted that no Thai soldiers have been held accountable for violence in 2010. In the press release, executive director of HRW's Asia division Brad Adams criticized the Thai government for not taking stronger action against its army chief
Abuses by soldiers took place in full view of the Thai public and the world’s media, yet the Thai army chief is now trying to intimidate investigators and critics into silence. The government should prosecute all those responsible for crimes during the 2010 violence, including members of the military, who should not be above the law.
At least 98 people died during clashes between the army and protesters in 2010.

Earlier in August a Thai court postponed its verdict [JURIST report] in the case against leaders of the "red shirt" [BBC backgrounder; JURIST news archive] movement for violating terms of their bail. Those defendants were among the nine who were released [JURIST report] in February of last year amid organized peaceful rallies calling for the release of the remaining red shirt leaders. A month earlier the red shirts petitioned [JURIST report] the International Criminal Court (ICC) [official website; JURIST backgrounder] to launch a preliminary investigation into whether the government committed crimes against humanity during the 2010 protests. The application for petition [text, PDF] cited specific evidence developing a substantial basis to show that international crimes of murder, imprisonment and other severe deprivation of physical liberty, other inhumane acts and persecution were committed in conjunction with the suppression of red shirt protest. In 2010 the red shirts initiated the protests [JURIST report] against the Thai government calling for elections. The protests ended two months after when protesters surrendered [JURIST report] to the police.




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Legal groups asks US Supreme Court to hear DOMA challenge
Max Slater on August 23, 2012 10:31 AM ET

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[JURIST] A gay rights group urged [cert. petition, PDF] the US Supreme Court [official website] on Tuesday to review a provision of the Defense of Marriage Act (DOMA) [text; JURIST news archive] that denies benefits to married same-sex couples. The Gay & Lesbian Advocates & Defenders (GLAD) [advocacy website] specifically challenged Section 3 of DOMA, which restricts tax, health care and other benefits of marriage to married heterosexual couples. The petitioners in the case are six married same-sex couples and a widower who argue that Section 3 of DOMA unconstitutionally denies same-sex married couples' equal protection rights. Earlier this month Judge Vanessa Bryant of the US District Court for the District of Connecticut [official website] ruled [JURIST report] that Section 3 of DOMA was unconstitutional, as it lacked a rational basis. In the petition, GLAD urged the Supreme Court to hear the DOMA challenge because same-sex couples continue to face economic hardships due to DOMA and the Supreme Court could resolve DOMA's constitutionality once and for all:
[E]ach of the Petitioners demonstrates existing and ongoing economic harms as well as other burdens on their valid and existing marriages. Any continued delay in the resolution of the clear constitutional question presented by this case and this petition for review only exacerbates those harms unnecessarily for these Petitioners and for all other legally married same-sex couples throughout the country.
It is unclear if or when the Supreme Court will decide to hear the petitioners' challenge to DOMA.

Last month Bryant denied a motion by the Bipartisant Legal Advocacy Group (BLAG) to stay the lawsuit [JURIST reports] pending a Second Circuit ruling in another case. Edith Schlain Windsor, 83, successfully sued the US government [complaint, PDF] in the US District Court for the Southern District of New York (SDNY) [official website], which in June also ruled on summary judgment that under a rational basis standard [Cornell LII backgrounder] of judicial scrutiny that DOMA is unconstitutional [JURIST report]. Last month the elderly New York woman petitioned the Supreme Court to expedite her DOMA challenge [JURIST report] and bypass the Second Circuit appeal. That same week a lesbian couple filed a lawsuit in the US District Court for the Central District of California [official website] in a DOMA challenge that seeks to achieve for gay and lesbian couples the same federal immigration rights afforded to heterosexual couples [JURIST report] under the Immigration and Nationality Act [materials]. Also that week 132 members of the US House of Representatives [official website] filed an amicus brief [JURIST report] stressing that the House is "not united on DOMA's validity" and arguing that statutory classifications based on sexual orientation should be subject to heightened judicial scrutiny, but that DOMA should be overturned as unconstitutional under any level of judicial scrutiny. The brief was filed in the appeal of Karen Golinski v. Office of Personnel Management, the landmark case in which the US District Court for the Northern District of California [official website] ruled that DOMA is unconstitutional [JURIST report].




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