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Legal news from Tuesday, September 18, 2012




Second Circuit grants emergency stay allowing enforcement of indefinite detention law
Jerry Votava on September 18, 2012 3:34 PM ET

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[JURIST] Judge Raymond Lohier of the US Court of Appeals for the Second Circuit [official website] on Monday ordered a stay [order, PDF] of a permanent injunction [opinion, PDF; JURIST report] that blocked portions of the National Defense Authorization Act (NDAA) [text, PDF], allowing for their enforcement pending appeal. The order came after the US Department of Justice (DOJ) [official website] filed a motion for emergency stay [JURIST report] earlier in the day. The DOJ contended that Judge Katherine Forrest's ruling incorrectly interpreted the Authorization for Use of Military Force (AUMF) [text] and may have done "irreparable harm to national security and public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict." The order permits the DOJ to file an oversized motion against the permanent injunction.

Forrest issued an injunction against the law in May, and clarified in the following weeks that her injunction should be interpreted broadly [JURIST reports]. Several civil rights groups have praised her decision and have circulated petitions [advocacy website] arguing that the government should not appeal the injunction. Lawyers for the government filed their appeal [JURIST report] with the US Court of Appeals for the Second Circuit [official website] in August. US President Barack Obama signed the NDAA into law [JURIST report] on December 31, 2011.




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Thailand truth commission releases report about 2010 unrest
Jerry Votava on September 18, 2012 3:01 PM ET

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[JURIST] The Truth for Reconciliation Commission of Thailand (TRCT) [official website, in Thai] on Tuesday released a report [materials, in Thai] detailing the unrest and deaths caused by the 2010 anti-government protests [JURIST news archive] led by the "red shirt" [BBC backgrounder; JURIST news archive] movement. The protests were said to have killed 92 people and injured around 1,700. The report renounced the military tactics used to engage the protesters, but also pointed out that at times, protesters attempted to blend into civilian crowds to avoid detection. The report also called for the guarantee of fundamental rights for demonstrators in the justice system and warned of the possibility of continued unrest if conciliatory measures are not the top priority of all stake holders.

Investigations have been ongoing since the unrest. In February 2011, 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 deprivations 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 later when protesters surrendered [JURIST report] to the police.




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Arizona governor, DOJ suggest wording for immigration law enforcement
Cynthia Miley on September 18, 2012 2:38 PM ET

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[JURIST] Lawyers for Arizona Governor Jan Brewer and the US Department of Justice (DOJ) on Monday presented Judge Susan Bolton of the US District Court for the District of Arizona [official websites] with a joint filing suggesting wording for a court order permitting police to enforce the provision of the state's immigration law [SB 1070, PDF] requiring law enforcement officials to check the immigration status of suspects. Bolton had initially enjoined several provisions [JURIST report] of SB 1070 in July 2010, including this provision. Although striking down [JURIST report] several provisions of the law, the US Supreme Court upheld the provision requiring police to check immigration status, clearing the way for Bolton to uphold [JURIST report] the law last week after a request for preliminary injunction. Attorneys for Brewer and the federal government have agreed [AP report] that the initial 2010 order blocking enforcement should be lifted once Bolton signs a new order.

Immigration law [JURIST backgrounder] has became a hot button issue as many states, Arizona being the first, have passed laws giving state and local officials more power to police illegal immigration. In August the US Court of Appeals for the Eleventh Circuit [official website] struck down [JURIST report] several provisions of Alabama's controversial immigration law [HB 56, PDF], upheld a few sections of the law and rejected part of Georgia's immigration law [HB 87, text]. That same month, the US Court of Appeals for the Third Circuit [official website] heard arguments [JURIST report] on two anti-illegal immigrant laws enacted in 2006 by the city of Hazleton, Pennsylvania, which deny permits to businesses that employ illegal immigrants and fine landlords who extend housing to them. In July a judge for the US District Court for the District of South Carolina [official website] declined to lift an injunction [JURIST report] against South Carolina's controversial immigration law [SB 20 materials], despite the Supreme Court's ruling in Arizona v. United States.




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Ethiopia initiates investigation into prisoner rights abuses
Sung Un Kim on September 18, 2012 1:15 PM ET

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[JURIST] The Ethiopian Human Rights Commission (EHRC) [official website] on Monday announced that it has implemented measures to monitor detention centers at federal and regional levels to ensure human rights protection according to the country's constitution. The EHRC will dispatch investigators [AllAfrica report] who have the responsibility to interview prison officials and detainees and then file a report based on those findings. The investigation team will focus on whether human rights abuses in the 119 prisons are taking place. The investigative measure followed after numerous reports of abuses in prisons were reported.

Ethiopia has been criticized by the international community for its human rights record. In August Human Rights Watch [advocacy website] urged the government to release [JURIST report] 17 prominent Muslim leaders who were arrested in July in the Ethiopian capital, Addis Ababa, arguing that the Ethiopian government has used its anti-terrorism law [Anti-Terrorism Proclamation of 2009, text] as a tool to crack down on dissent, particularly dissent amongst the nation's Muslims, who constitute 30 percent of Ethiopia's population. In July UN High Commissioner for Human Rights Navi Pillay [official profile] expressed concern that Ethiopia is intimidating journalists [JURIST report]. Earlier that month Amnesty International [advocacy website] criticized [JURIST report] the imprisonment of 20 activists in Ethiopia under the nation's anti-terrorism law. In June the Ethiopian Federal High Court [official website, in Amharic] convicted [JURIST report] 24 journalists, political opposition leaders and others under the anti-terrorism law.




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Europe rights court rules England, Wales indeterminate sentences unlawful
Sung Un Kim on September 18, 2012 12:19 PM ET

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[JURIST] The European Court of Human Rights [official website] ruled [judgment] Tuesday that England and Wales' indeterminate sentences for protection of the public (IPP) [BBC backgrounder] without the means for inmates to prove their rehabilitation are arbitrary and unlawful. The IPP requires an inmate to demonstrate to the Parole Board [official website] that he or she is no longer a threat to society to become eligible for release after serving a minimum sentence. The ruling originated from applications filed by three inmates, Brett James, Nicholas Wells and Jeffrey Lee. They argued that their detention even after the expiry of their tariff sentence was unlawful. The government has argued that the tariff element of the IPP sentence achieved the punishment purpose while the post-tariff element addressed the need of public protection. The court however, held that there was a violation of Article 5, Section 1 [text] of the Convention for detaining applicants during the period between the expiry of their tariffs and steps taken to provide them with rehabilitative courses. In addition, the court criticized the lack of rehabilitation resources denying applicants chances of getting their tariffs reduced or eliminated. Since the basis for continued detention after expiry of tariffs is risk to the public, the court held that this is arbitrary and thus, unlawful. With the finding of a violation, the court also demanded the government pay the applicants compensation totaling €53,200. The new justice minister Chris Grayling [official website] announced that he plans to appeal the decision. There are currently more than 6,000 prisoners serving under the IPP in England and Wales.

In 2007, the Queen's Bench Division of the England and Wales High Court ruled [JURIST report] in a similar way in the case of two inmates who were serving indeterminate prison sentences without the means to prove their rehabilitation. Even after serving their minimum sentence, the two inmates were detained because they could not show any evidence of rehabilitation due to lack of such programs. IPP sentences were introduced as part of the Criminal Justice Act 2003 [Sec. 225 text] and became effective in April 2005.




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Pakistan PM to allow Switzerland to reopen corruption charges against president
Sarah Paulsworth on September 18, 2012 9:51 AM ET

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[JURIST] Pakistan Prime Minister Raja Pervez Ashraf announced on Tuesday that he will allow Switzerland to reopen corruption charges against President Asif Ali Zardari [official website]. Appearing before the Supreme Court [official website] in connection with the ongoing standoff between Pakistan's judiciary and executive officials regarding Zardari's case, Ashraf agreed to draft a letter [Dawn report] to Switzerland by September 25 that will enable the case to be reopened. The corruption case is thought to involve approximately USD $60 million. In June the Supreme Court ordered Ashraf to reopen the case [JURIST report] by writing the letter to Swiss authorities. However, at the end of August, Ashraf appeared in court to explain why the Supreme Court should not charge him with contempt [JURIST report] for failure to write the letter.

These proceedings in Pakistan exemplify the mounting tension in the country between the judicial and executive branches of government. In August the Supreme Court granted Ashraf three additional weeks [JURIST report] to urge Switzerland to reopen the old corruption case against Zardari. Some have argued that the judiciary in Pakistan is becoming too powerful. The former prime minister Yousef Raza Gilani [BBC profile] was disqualified from being a member of Parliament after an April contempt conviction [JURIST reports] and removed from office when he declined to follow the same court order that has been given to Ashraf. In early August the government announced that it will petition the high court to review its decision nullifying [JURIST reports] the Contempt of Court Bill 2012 which was passed to shield the country's new prime minister from contempt charges. The bill was passed by the upper [AFP report] and lower houses of the national parliament and signed [JURIST reports] by Zardari in July. The court had ordered [JURIST report] the new prime minister in late June to investigate the corruption allegations against the president. Ashraf, like his predecessor, has argued that the president is immune from prosecution under the country's constitution.




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Bahrain police officers charged with torturing protesters
Sarah Paulsworth on September 18, 2012 9:04 AM ET

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[JURIST] Seven police officers in Bahrain have been charged with torturing and mistreating medical professionals who were detained during opposition protests held in March 2011, authorities said Monday. The police officers were trying to coerce the medical professionals into confessing that they committed misdemeanor assault and slander [Gulf News report]. The police officers' trial is scheduled to start [BBC report] on October 1. The two police officers who are accused of committing the most serious infractions will be tried in the High Criminal Court [Al Jazeera report], while the others will be tried in the Lower Criminal Court. Ten other officers remain under investigation. In June, a Bahrain Court overturned or reduced the sentences [JURIST report] for most of the 20 medical professionals convicted last September of participating in the country's pro-democracy protests against the ruling regime. The 13 doctors, one dentist, nurses and paramedics who were jailed for providing treatment to injured protesters all worked at the Salmaniya Medical Complex [official website] in Manama, which was stormed by security forces in March after they drove protesters out of the nearby Pearl Square.

Protests and demonstrations in Bahrain have been ongoing since February 2011 [JURIST report]. Earlier this month the government of Bahrain announced that it would pursue legal proceedings [JURIST report] against the al Wefaq [official website, in Arabic] political party, which it labels an opposition group, for engaging in anti-government protests in the face of a ban [JURIST report] of those activities. Also this month, a civilian court in Bahrain upheld lengthy prison sentences [JURIST report] for 20 opposition and human rights activists, including eight life sentences. At the end of August a Bahraini appeals court overturned the conviction [JURIST report] of prominent human rights activist Nabeel Rajab [JURIST news archive]. In July Amnesty International [advocacy website] urged the government [JURIST report] of Bahrain to release all prisoners of conscience [press release] immediately. The Bahrain Information Affairs authority announced in July 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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DOJ requests emergency stay to continue enforcement of indefinite detention law
Julia Zebley on September 18, 2012 8:32 AM ET

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[JURIST] The US Department of Justice [official website] on Monday filed a motion for an emergency stay [text] in the US Court of Appeals for the Second Circuit [official website] in an attempt to lift last week's permanent injunction [opinion, PDF; JURIST report] of portions of the National Defense Authorization Act (NDAA) [text, PDF]. The DOJ argued that Judge Katherine Forrest's ruling interpreted the Authorization for Use of Military Force (AUMF) [text] unnecessarily and may have done "irreparable harm to national security and public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict." The DOJ also argued that "[t]his is a suit brought by a handful of journalists and activists, who, based on their stated activities, are in do danger whosoever of ever being captured and detained by the US military" and thus could suffer no harm. The motion called the injunction to limit the president's military powers "unprecedented" and stated that any act of Congress should be presumed Constitutional until the US Supreme Court [official website] reviews it. Section 1021(b)(2) of the NDAA affirms the authority of the president under the AUMF to detain indefinitely any "person who was a part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." Forrest struck down the law as vague and ambiguous in its terms as well as "unconstitutionally overbroad" in that it "purports to encompass protected First Amendment activities."

Forrest issued an injunction against the law in May, and clarified in the following weeks that her injunction should be interpreted broadly [JURIST reports]. Several civil rights groups have praised her decision and have circulated petitions [advocacy website] arguing that the government should not appeal the injunction. Lawyers for the government filed their appeal [JURIST report] with the US Court of Appeals for the Second Circuit [official website] in August. US President Barack Obama signed the NDAA into law [JURIST report] on December 31, 2011.




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HRW calls on Morocco to release jailed activists
Julia Zebley on September 18, 2012 7:33 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Monday urged Morocco to release five prisoners [press release] who were allegedly convicted based on false confessions obtained through torture. Six activists were convicted last week in Casablanca for assaulting and insulting police officers during anti-monarchy protests held in July. When released from police custody, the group stated that they had been tortured until they signed false confessions, which were then used as the only evidence against them. None of the officers the group allegedly attacked testified, nor were they present at the hearing.
The five male defendants steadfastly denied the contents of their "confessions" made before the police. Four said they signed them under torture; Kartachi had refused to sign his, explaining at the trial that he had refused to sign because the police had never interrogated him about the events of that evening. Nassimi told Human Rights Watch that she signed her statement without reading it because she did not have her glasses, and learned only later that in it she had confessed to biting and hitting a police officer, a statement she denies making and that she denied in court. The case file included written statements by police officers that they had been injured while dispersing the demonstration, with medical reports to support their claims. However, the officers in these reports did not identify the individuals who they say assaulted them, except for the officer who accused Nassimi of biting him, Messaoudi and Bendjelloun said.
The defense also had three witnesses testify on their behalf that an assault never took place. Leila Nassimi, the female defendant in the group, was given a suspended sentence, while her five male cohorts were sentenced to at least eight months in prison. All six were fined. They plan to appeal.

By law a judge cannot admit a statement made under coercion, but judges in Morocco have had difficulty maintaining independence from the other branches of government. In May a group of Moroccan judges signed a petition urging judicial independence [JURIST report] from Morocco's monarchy and parliament. Despite constitutional reforms to weaken the monarchy's power over the government, Moroccans continue to question [JURIST reports] the amount the monarchy controls the other branches.




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