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Legal news from Wednesday, October 3, 2012




Sixth Circuit upholds Ohio law limiting 'abortion pill'
Jerry Votava on October 3, 2012 3:45 PM ET

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[JURIST] The US Court of Appeals for the Sixth Circuit [official website] on Tuesday affirmed [opinion, PDF] a lower court ruling that permitted an Ohio law [2919.123 text] limiting the use of the "abortion pill." The law requires that the use of the pill, RU-486 [FDA guidelines], conform with federal guidelines, which currently do not allow the pill to be used after seven weeks of pregnancy. The US District Court for the Southern District of Ohio [official website] upheld [JURIST report] the law in May, overturning a 2006 injunction [JURIST report]. The Sixth Circuit was unanimous in affirming the lower court's judgment finding the law constitutional and rejecting the argument by Planned Parenthood of Southwest Ohio [advocacy website] that the law was still vague and forced women to choose surgical abortions.

Oklahoma has also prohibited the use of RU-486 [JURIST report]. Last year the Ohio Senate approved a bill [JURIST report] that would limit the availability of abortions after 20 weeks. Missouri, Indiana, Alabama and Oklahoma [JURIST reports] have each passed legislation which restricts the abortion procedure after 20 weeks of pregnancy. Also last year, a legislative committee in the Ohio House of Representatives advanced [Columbus Dispatch report] the "Heartbeat Bill," [HB 125 text], which would ban abortions after the point at which a fetus's heartbeat becomes detectable in the womb.




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Haiti urged to strengthen rule of law institutions
Sung Un Kim on October 3, 2012 2:33 PM ET

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[JURIST] UN Special Representative for Haiti Mariano Fernandez Amunategui on Wednesday called on Haiti to strengthen its rule of law institutions [press release] such as police and electoral council. UN Secretary-General Ban Ki-moon [official profile] noted in the report [materials] that the country is still subject to "setbacks linked to political instability, lack of respect for the rule of law and unmet social grievances." The report also recommended the extension of the mandate of the UN Stabilization Mission in Haiti (MINUSTAH) [official website]. Amunategui presented to the UN Security Council [official website] a consolidation plan established between the local government and MINUSTAH in order to decrease the UN's military presence in Haiti while gradually transferring the responsibility to the national police forces. The Special Representative also pointed out the need for a permanent electoral council which would lead to the election of government officials.

Haiti is still in the process of improving its rule of law. In June Haitian President Michel Joseph Martelly gave final approval [JURIST report] for amendments to the country's Constitution that will allow dual-citizens to vote and be appointed to administrative positions. Dual-citizens are still barred from running for key political offices, including offices of President, Prime Minister, Senator, and the lower house of Parliament. The US State Department in February dispatched a team of international law experts to Haiti to assess how to reinforce the Haitian judiciary's power and independence. Earlier that month UN independent expert Michel Forst proclaimed that the rule of law is making significant progress in Haiti [JURIST report]. Forst focused on the establishment of judicial offices and the adoption of the International Covenant on Economic, Social and Cultural Rights [text, PDF]. In January a Haitian judge convicted eight police officers [JURIST report] of shooting and killing at least 10 prisoners following the January 2010 earthquake. In December 2011 the UN urged an investigation [JURIST report] into alleged torture and unlawful killings perpetrated by the Haitian National Police (HNP). In September of that year Amnesty International called on Haitian authorities to prosecute Duvalier [JURIST report] for crimes against humanity. In July 2011 a UN rights expert requested that Haiti prosecute Duvalier [JURIST report] and improve its human rights record.




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Former Congo militia leader appeals ICC sentence
Jerry Votava on October 3, 2012 2:22 PM ET

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[JURIST] Former Democratic Republic of Congo (DRC) [BBC backgrounder; JURIST news archive] militia leader Thomas Lubanga Dyilo [case materials] on Wednesday appealed his conviction and sentence from the International Criminal Court [official website]. Lubanga was convicted [JURIST report] in March for the war crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities. As a result of the conviction, he received a 14-year sentence [JURIST report] from the ICC. Lubanga's lawyers are seeking [AFP report] to have the conviction and the sentence replaced with an acquittal. Lubanga has maintained his innocence [JURIST report] throughout the trial.

The Prosecutor v. Thomas Lubanga Dyilo [ICC information sheet] is a landmark case for the ICC because Lubanga was the first prisoner taken into custody [JURIST report] and delivered to the international criminal tribunal in The Hague. The prosecution concluded its case [JURIST report] in July 2009 after presenting 22 weeks of testimony. Lubanga's trial began in January 2009 after being delayed for evidentiary reasons and was then halted soon afterward when one of the child witnesses recanted his testimony [JURIST reports] that Lubanga had recruited him for the militia. He was charged with recruiting child soldiers [JURIST report] in 2006. In March 2006, he was taken into ICC custody [JURIST report], becoming the first DRC war crimes defendant to appear before the ICC.




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Turkish court hands life sentences to guards responsible for activist's death
Sung Un Kim on October 3, 2012 1:42 PM ET

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[JURIST] A Turkish court on Monday sentenced two prison guards and a prison director to life in prison for the torture and death of anti-government activist Engin Ceber while in police custody. With the life sentence, the court also sentenced nine other officials to prison terms of varying length. The re-trial began in February when the Supreme Court of Appeals reversed a previous conviction reasoning that there were clerical errors and defendants did not receive a fair trial because of their representation by a single lawyer. During the re-trial, the life sentence of one police officer was converted to a sentence of two-and-a-half years. Two other police officers were sentenced to seven-and-a-half years and three prison guards to 12-and-a-half years. The verdicts are expected to be appealed in the near future. Amnesty International [advocacy website] welcomed the sentencing [press release] as a "historic verdict."

Following Ceber's death in 2008, the Istanbul 14th High Criminal Court in 2010 initially sentenced [JURIST report] several guards to life in prison. Human Rights Watch (HRW) [advocacy website] reported [press release] that it was the first time a Turkish court had convicted a senior prison official for the conduct of guards under his command. Nineteen defendants were convicted for their role in the activists' torture, including a prison doctor who was sentenced to more than three years for falsifying documents about the health of the inmates. Turkish Justice Minister Mehmet Ali Sahin apologized on behalf of the Turkish government [JURIST report] and suspended the 19 defendants following Ceber's death.




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UN rights office condemns Iran crackdown on dissidents
Keith Herting on October 3, 2012 10:54 AM ET

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[JURIST] Representatives for the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] voiced their concern Tuesday over Iran's recent crackdown on activists speaking out within the nation. The OHCHR is most notably concerned by the September arrest of human rights lawyer Mohammad Ali Dadkhah. According to a statement [press release] by the OHCHR, Dadkhah has been sentenced to nine years in prison for "membership of an association seeking to overthrow the government and propaganda against the system." In addition to his prison sentence, Dadkhah has also received a 10-year ban [UN News Centre report] on legal practice and teaching. Ali Akbar Javanfekr, who had been the press adviser to President Mahmoud Ahmadinejad [BBC profile], was also arrested last week for having "insulted" the Supreme Leader Sayyid Ali Khamenei [official website]. Also last week, government forces shuttered an independent newspaper, the Daily Shargh, and arrested the newspapers director, Mehdi Rahmanian, for its publication of a cartoon that officials claimed "'insulted the values of the revolution." According to Rupert Colville, spokesperson for the OHCHR, "the arrests and harsh sentences imposed on such figures reflect a disturbing trend apparently aimed at curbing freedom of expression, opinion and association, which are guaranteed by the International Covenant on Civil and Political Rights, to which Iran is a State party." Colville also noted the timing of this crackdown is particularly troubling in the buildup to next year's presidential election.

Accusations against Iran for engaging in politically motivated arrests are not new. Last month the daughter of Iran's former president, Faezah Hashemi [The Iranian profile], was detained after being sentenced [JURIST reports] to six months for spreading propaganda. Faezah Hashemi is one of several opposition figures that have been detained and charged in connection with the wave of civil unrest following the disputed re-election of Ahmadinejad. In December Iran's Islamic Revolutionary Court sentenced opposition figure [JURIST report] and former Iranian foreign minister Ebrahim Yazdi to eight years in prison for attempting to act against national security. Yazdi was also banned from civic activities for five years in the closed-door trial reportedly held in early November. Tehran prosecutor Abbas Jafari-Dolatabadi said last year that approximately 100 people imprisoned for their participation in the massive 2009 presidential election protests have been pardoned and released [JURIST report] by Iran's supreme leader Ayatollah Ali Khamenei [official profile]. In March 2011 Iranian opposition leaders Mir-Hossein Mousavi [BBC profile; JURIST news archive] and Mehdi Karroubi [NYT profile; JURIST news archive] and their wives were arrested and jailed [JURIST report].




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Federal appeals court extends stay on order blocking indefinite detention law
Matthew Pomy on October 3, 2012 10:28 AM ET

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[JURIST] The US Court of Appeals for the Second Circuit [official website] on Tuesday extended a stay [opinion, PDF] on a lower court order that barred enforcement of a law allowing the indefinite detention of suspected terrorists. The Second Circuit's order allows certain provisions of the National Defense Authorization Act (NDAA) [text, PDF], specifically Section 1021(b)(2), to remain in force pending appeal. This provision affirms the authority of the president under the Authorization for Use of Military Force (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." The US Department of Justice (DOJ) argued that Judge Katherine Forrest's ruling interpreted the AUMF 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 appeals court panel based their decision on the fact the government (1) clarified the provision to protect overreach, (2) the statute does not affect existing rights of United States Citizens and (3) the district court injunction appears to be overbroad.

The DOJ requested [JURIST report] the emergency stay pending appeal [petition, PDF] in September. 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 Second Circuit in August. US President Barack Obama signed the NDAA into law [JURIST report] in December.




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Ukraine president applauds cancelation of proposed libel bill
Matthew Pomy on October 3, 2012 9:54 AM ET

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[JURIST] Ukrainian President Viktor Yanukovych [official website, in Ukrainian] on Tuesday praised [press release, in Ukrainian] the rejection of a proposed law that would have established harsh penalties for reporters who spread libel. The bill, which passed on its first reading, would have established fines and other punishments, including prison and correctional labor sentences, for spreading false information about another person. After being heavily protested [Kyiv Post report] by Ukrainian journalists and criticized by the international community, the Verkhovna Rada, Ukraine's parliament, voted to rescind [Kyiv Post report] the bill by a wide margin. Yanukovych emphasized [Kyiv Post report] the importance of protecting the freedom of expression and taking public opinion into account when passing legislation, especially leading up to an election.

The law drew criticism [JURIST report] from a media watchdog last month. Ukraine has also sparked other concerns leading up to their elections. Last week, Europe's human rights overseer urged [JURIST report] open and honest elections in Ukraine. In the same statement, he condemned the ongoing imprisonment of former prime minister and opposition party leader Yulia Tymoshenko [personal website; JURIST news archive] whose final appeal was denied [JURIST report] by Ukraine's highest court last month. During the appeal the government denied allegations that the criminal proceedings against Tymoshenko were a measure initiated by Yanukovych to prevent her from participating in the October elections.




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Hamas criminal justice system violating human rights: HRW
Keith Herting on October 3, 2012 9:41 AM ET

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[JURIST] The Hamas [CFR backgrounder] criminal justice system is rife with human rights abuses, Human Rights Watch (HRW) [advocacy website] reported [text, PDF] Wednesday. The report, entitled "Abusive System: Criminal Justice in Gaza," claims that under Hamas rule, people in the Gaza Strip [BBC backgrounder] are subject to numerous rights violations including warrantless arrests and torture. The report includes a list of specific recommendations for Prime Minister Ismail Haniyeh, the Interior Ministry, and the Ministry of Justice that the organization hopes will resolve many of the abuses it believes are currently plaguing the region:
Hamas should ... ensure that members of security services are held criminally liable for abuses against detainees, and it should sanction prosecutors and judges who turn a blind eye to violations, such as by issuing retroactive arrest warrants or accepting evidence that was credibly alleged to have been obtained under torture. Hamas authorities should strengthen oversight and complaints mechanisms intended to keep security services in check, including by allocating more resources to investigating and prosecuting security officers allegedly responsible for abuses.
In an accompanying press release [text], HRW deputy Middle East director Joe Stork claimed, "[a]fter five years of Hamas rule in Gaza, its criminal justice system reeks of injustice, routinely violates detainees’ rights, and grants impunity to abusive security services. Hamas should stop the kinds of abuses that Egyptians, Syrians, and others in the region have risked their lives to bring to an end."

Accusations of human rights violations in the Palestinian territories [UNICEF backgrounder], not just by Hamas but by the Palestinian Authority (PA) and Israel, continue to be of international concern. In August Amnesty International (AI) [advocacy website] said that Israel should investigate the alleged mistreatment [JURIST report] of two Palestinian prisoners detained in Israel. In May the Independent Commission for Human Rights (ICHR) [advocacy website] accused the PA and Hamas of committing torture [JURIST report]. In January UN Special Rapporteur Richard Falk alleged that Israeli authorities continued to commit illegal acts that threaten the viability of the Palestinian state [JURIST report] in the Palestinian territories, including the killing of four Palestinians by Israel Defense Forces (IDF) [official website]. In September 2010 a UN panel of experts [UN materials] criticized [JURIST report] investigations carried out by Israel and Hamas into the 2008-2009 conflict in the Gaza Strip [JURIST news archives], but praised the PA's report, which it said comported with international standards.




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Malaysia court awards damages to former detainees
Maureen Cosgrove on October 3, 2012 9:24 AM ET

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[JURIST] A Malaysian court on Tuesday awarded damages to a group of five opposition politicians and activists who were unlawfully detained pursuant to the country's controversial Internal Security Act of 1960 (ISA) [text, PDF], which permits indefinite detention without trial for terror suspects, dissidents and political opponents. Three politicians and two activists were detained without trial for two years after being arrested in 2001 following anti-government protests. In addition to other damages, the court awarded [Malaysian Insider report] 15,000 ringgit (USD $5,000) per person for each day spent in police custody. The government can appeal the verdict.

The lower chamber of the Malaysian Parliament [official website, in Malay] in April approved a law [JURIST report] aimed at replacing the ISA. Malaysian Prime Minister Najib Razak [official profile] originally announced [JURIST report] that the government would repeal the ISA as well as the Banishment Act of 1959 [text] in September 2011 and initiated the repeal [JURIST report] a month later. Malaysia's internal security laws were heavily criticized in the past by various human rights organizations. In June 2010 the UN Working Group on Arbitrary Detention [official website] recommended [JURIST report] Malaysia repeal or amend its security laws to conform to the Universal Declaration of Human Rights [text]. In 2009 the Abolish ISA Movement [advocacy blog] initiated a demonstration against the law in which 10,000 to 20,000 people participated and resulted in 589 arrests. Of those arrested, 29 were charged [JURIST report] for their involvement in the rallies. The International Federation for Human Rights [advocacy website] had also urged [JURIST report] Malaysia to abolish the ISA in 2008.




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Mississippi voter ID law delayed pending federal review
Maureen Cosgrove on October 3, 2012 8:57 AM ET

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[JURIST] Mississippi Attorney General Jim Hood [official website] announced Tuesday that the state's voter identification law will not take effect [press release] before the November 6 election. The new legislation [HB 921 materials], which would require voters to show photo ID to vote in any election in the state, must be approved by the US Department of Justice [official website] pursuant to Section 5 of the Voting Rights Act (VRA) [Cornell LII backgrounder]. Mississippi requested pre-clearance of the voter ID law for the upcoming election, but the DOJ responded by requesting more information about the proposed changes. Specifically, the DOJ requested data showing that voting rights of minority citizens would not be negatively effected by the law, and that the legislation does not have any discriminatory purpose. Mississippi must also produce a list of all registered voters [Reuters report], identifying each by name, race, birth date, address, Social Security number and driver's license or ID number. Hood said some of this information has already been compiled by state officials.

Voting rights [JURIST backgrounder] remain a contentious issue in the US, particularly in the run-up to the November presidential election. There are now 32 US states [NCSL backgrounder] that require voters to present some form of ID at the polls, but the issue remains controversial. Most recently, a judge for the Pennsylvania Commonwealth Court [official website] issued a preliminary injunction [JURIST report] earlier this week preventing Pennsylvania's voter identification law [HB 943 materials] from taking effect for the upcoming presidential election. Mississippi Governor Phil Bryant [official website] signed [JURIST report] that state's voter ID bill into law in May. The law enacts a constitutional amendment that was approved by 62 percent of Mississippi voters [JURIST report] last year's November election.




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Ukraine lawmakers give preliminary approval to gay propaganda ban
Julia Zebley on October 3, 2012 8:03 AM ET

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[JURIST] The Verkhovna Rada [official website], the Ukrainian parliament, on Tuesday approved [press release, in Ukrainian] a draft law [bill 8711 materials, in Ukrainian] that would ban pro-gay "propaganda" in Ukraine. The bill, roughly translated as the "the law on the protection of children's rights to safe information space" would amend laws to create liability for promoting homosexuality, although it does not specify what constitutes promotion of homosexuality. It would also include a criminal provision for importing, producing or distributing documents that both promote homosexuality and, in some way, promote religious intolerance, national intolerance, racism or discrimination, among other offenses. A representative for Insight Ukraine [advocacy website, in Russian], told Gay Star News that the law is so vague as to be dangerous [GSN report], possibly implicating interviews with the media and public protests. The draft law, initially approved by 289 out of 350 MPs present, will receive a second reading, where the Foreign Ministry of the Ukraine [official website] stated that parliament will consider Ukraine's international obligations [Interfax report] to human rights.

The draft law is modeled off of a law in St. Petersburg, Russia [JURIST report] that imposes fines against people convicted of promoting homosexuality, including gays or lesbians who are open about their sexuality. The first conviction [JURIST report] under the law occurred in April, when a gay rights activist was fined for picketing in front of city hall with a sign that said "homosexuality is not perversion." LGBT rights activists continue to challenge the law [JURIST report]. The Russian parliament introduced a similar law [JURIST report] shortly after the St. Petersburg law passed, but it has yet to pass.




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Supreme Court hears arguments on federal liability for credit card information leak
Julia Zebley on October 3, 2012 7:04 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases [JURIST report] on Tuesday. In US v. Bormes [transcript, PDF] the court heard arguments to determine whether the federal government has sovereign immunity for damages arising from the Fair Credit Reporting Act (FCRA) [text, PDF]. The US Court of Appeals for the Federal Circuit ruled in 2010 that the Little Tucker Act [Cornell LII backgrounder] waived sovereign immunity [opinion] for money claims against the US under the FCRA. The Solicitor General's office argued that the government can only waive its sovereign immunity when it unequivocally expresses the intent to do so, which it does not under the Tucker Act. In the Solicitor General's view, immunity can only be waived when a statute "does not contain its own remedial mechanism" and "substantive obligations in the statute run against [only] the United States." The respondent, an attorney for plaintiff lawyer James Bormes, argued that since the government explicitly retained sovereign immunity in section 1681b of the FCRA, it waived immunity by not explicitly stating that in the Tucker Act.

The court also heard arguments in Kloeckner v. Solis [transcript] to determine appellate jurisdiction in wrongful termination and discrimination cases for federal employees. At issue is whether a party may appeal a case involving both wrongful termination and discrimination claims to the US Court of Appeals for the Federal Circuit or a district court, when the Merit Systems Protection Board (MSPB) [official website] decides the case without determining the merits of a discrimination claim. The petitioner argued for the district court, stating that district courts have jurisdiction over "all mixed cases" and later noted that appeals of the MSPB appear to require de novo review, which the Federal circuit cannot provide. The Solicitor General's attorney argued that 28 USC § 1295 [text] provides that the Federal Circuit has automatic jurisdiction over all MSPB decisions.




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