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Legal news from Monday, October 22, 2012




Italy scientists found criminally negligent for understating dangers of earthquake
Brandon Gatto on October 22, 2012 4:36 PM ET

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[JURIST] A court in Abruzzo, Italy, on Monday found that six Italian scientists and an ex-government official were negligent in their evaluation of the dangers posed by a 2009 earthquake that killed more than 300 people in the town of L'Aquila. Specifically, sole judge Marco Billi found [Reuters report] that the members of the country's Commissione Nazionale dei Grandi Rischi [official website, in Italian], or National Commission for the Forecast and Prevention of Major Risks, committed malpractice when they understated the risks facing the ancient town, which was filled with fragile buildings and had been partially ravaged by earthquakes on three prior occasions. The controversial outcome of the decision, however, is that Billi found all seven guilty of criminal manslaughter and causing criminal injury, and, although the prosecution requested only four years imprisonment, the judge felt that the crimes warranted a harsher sentence of six years in jail [Corriere della Sera report, in Italian]. Several international science organizations, including the American Geophysical Union [official website], have proffered that a miscommunication of science should not subject responsible scientists to prison time, as such drastic repercussions of litigation may deter scientists from working with governments in the future. While prosecutors admitted that they did not expect a precise forecast from the accused, they argued that the scientists gave incomplete, imprecise, and contradictory information regarding the significance of the low-level tremors felt throughout L'Aquila leading up to the earthquake, as well as the potential dangers of the much larger earthquake.

Italy is one of the most earthquake-prone countries in Europe and endures continual criticism related to its disaster preparedness. The most recent earthquake occurred in May [BBC report] when a series of tremors reaching a 5.8 magnitude killed 16 people and injured hundreds of others in the Emilia Romagna region. The ancient town of L'Aquila was struck [BBC report] by a 6.3 magnitude earthquake at 3:32AM on April 6, 2009. It damaged [Corriere della Sera report] or completely destroyed tens of thousands of buildings, injured more than 1,000 people, and killed 308.




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Former Philippines president files bill allowing 'medical parole' for sick prisoners
Brandon Gatto on October 22, 2012 3:10 PM ET

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[JURIST] Former Philippines President and current Pampanga Representative Gloria Macapagal-Arroyo [official website; BBC profile; JURIST news archive] has filed a bill [BusinessWorld report] seeking to allow the country's Department of Justice [official website] to grant "medical parole" to sick inmates. In particular, the three-page Medical Parole Act of 2012 [text, PDF], authored by Macapagl-Arroyo and her son, Representative Diosdado Macapagal-Arroyo [official website], provides that the Board of Pardons and Parole "may release a prisoner on medical parole if he has been examined ... and has received a written diagnosis" including an assertion that the prisoner suffers from an incapacitating illness, a description of the incapacitating condition, and a prognosis related to the likelihood of recovery. The bill also provides that the Board's decisions may be reviewed by the Bureau of Corrections [official website] using the same criteria. In order for a grant of medical parole, the Board must also conclude that "the prisoner does not constitute a threat to public safety and is not likely to committ an offense while on medical parole." Given this caveat, the proposed legislation does not apply to those prisoners sentenced to death, life, or reclusion perpetua. Filed on September 26, the Medical Parole Act has been pending with the House of Representatives Committee on Justice [official website] since October 8.

Former president Arroyo has been a target of anti-corruption efforts by President Benigno Aquino [BBC profile], and has been in and out of the Veterans Medical Center for treatment of a spine injury. Earlier this month, an anti-graft court ordered her arrest in a corruption case [JURIST report] alleging the misuse of over $8 million in state lottery funds. This was the third controversial corruption case [JURIST op-ed] pending for the former Philippines leader, who made bail in July [JURIST report] after eight months of detention in an army hospital. In April, Arroyo and her husband Jose Miguel pleaded not guilty [JURIST report] to corruption charges before a special anti-graft court in the Philippines. The non-guilty plea came a month after a Philippines court issued an arrest warrant [JURIST report] against Jose on bribery charges. Arroyo faced the same charges in December when the country's authorities filed a second criminal complaint [JURIST report] against her alleging that she approved a $329-million national broadband network deal with the Chinese company in return for millions of dollars in kickbacks in 2008. Arroyo was arrested [JURIST report] in November 2011 on fraud and corruption charges in the hospital before she was able to leave the country to seek medical treatment.




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South Korea attempts to halt distribution of anti-North Korea leaflets
Michael Haggerson on October 22, 2012 1:42 PM ET

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[JURIST] The South Korean government attempted to halt the distribution of anti-North Korea pamphlets across the border into North Korea by activists on Monday after threats from North Korea. North Korea threatened military action [AP report] if South Korean activists carried out their plan to pass leaflets across the border via balloons. In a post on Friday to the Korean Central News Agency [official website] site, North Korea stated [statement, in Korean] that the "plan [to release leaflets] was directly invented by the group of traitors and is being engineered by the [S]outh Korean military" and that if any leaflets were detected on the North Korean side of the border, North Korea would respond with a "merciless military strike." North Korea has made similar threats in the past, but this time it had been detected that North Korea was preparing artillery and moving troops into positions along the border. South Korean police closed roads, evacuated people form the border region and attempted to halt the distribution of leaflets across the border, but activists nonetheless were successful in releasing the balloons. No military response from North Korea has been initiated yet. Activists, including Free North Korea Radio [advocacy website, in Korean], stated that they only wished to educate North Koreans about human rights abuses by their government and they did not want to back down to threats.

North Korea has faced ongoing international criticism for human rights violations. In June the Committee for Human Rights in North Korea [advocacy website] reported [JURIST report] that the North Korean caste system is used as justification for the systematic abuse and arbitrary detention of some North Korean citizens and that members of the lower castes are classified as "class enemies" and are not afforded basic human rights. The UN Special Rapporteur on North Korean Human Rights criticized North Korea's human rights record [JURIST report] last November, focusing on the treatment of prisoners and echoing a UN General Assembly resolution [text] concerning the country's human rights conditions. In March 2010 the UN Human Rights Council (UNHRC) adopted a resolution [JURIST report] condemning North Korea for human rights abuses. Earlier that month, the UN Special Rapporteur for North Korea, Vitit Muntarbhorn reported to the UNHRC that North Korean human rights situation was continuing to deteriorate [JURIST report]. This report came after Muntarbhorn's previous criticism, in October, 2009, of North Korea's "abysmal" ongoing human rights violations [JURIST report], alleging that the authoritarian government was responsible for various abuses, including torture, public executions, extensive surveillance, media censorship, women's rights violations and widespread hunger.




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Japan rejects Samsung patent infringement claims against Apple: AJW report
Dan Taglioli on October 22, 2012 1:10 PM ET

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[JURIST] Apple defeated additional patent infringement claims [Asahi Shimbun AJW report] made by Samsung Electronics [corporate websites] in Japan, it was reported Saturday, overcoming Samsung's attempt to enjoin iPhone sales in the country. The Tokyo District Court [official website, in Japanese] rejected Samsung's claims that Apple's iPhone 4 and iPhone 4S infringed on Samsung patents in the areas of its smartphone application downloading technology and its "airplane mode" communications suspension feature. In September the court held that Apple's application downloading scheme differs from Samsung's, and in October the court further ruled that the iPhone's airplane mode function does not constitute an infringement because the technology is not a nonobvious innovation, in that a person having ordinary skill in the field could have easily created the technology based on existing prior art [Cornell LII backgrounders]. Apple is also currently appealing a separate patent infringement loss [JURIST report] that was handed down by the Tokyo court in August.

Judge Tamotsu Shoji ruled in August that Samsung did not violate [JURIST report] Apple's patents for inventions allowing smart phones and tablets to synchronize music and video data with servers. The court subsequently dismissed Apple's claim for USD $1.3 million in damages along with its request for an injunction to block the sale of eight Samsung products in Japan. Apple's appeal is the most recent event in a protracted patent litigation battle [JURIST op-ed] with Samsung that spans four continents. The Tokyo court handed down its August ruling after Apple won a USD $1.05 billion judgment [JURIST report; video] against Samsung in late August in the US District Court for the Northern District of California [official website]. The dispute covered everything from the shape and design of the competing companies' tablets and smartphones to the technology employed in the devices' software interface. Further, a South Korean court held in mid-August that the technology companies had violated [JURIST report] each others' patents and banned sales of several products in the country.




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Two members of Russia feminist rock band transferred to regional prisons
Michael Haggerson on October 22, 2012 12:50 PM ET

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[JURIST] Maria Alekhina and Nadezhda Tolokonnikova of Russian feminist rock band Pussy Riot [RASPI background; JURIST news archive] were transferred to separate regional prisons on Saturday to serve out their two-year sentences for hooliganism and religious hatred in connection with their performance at an protest against Russian President Vladimir Putin [official website; JURIST news archive] at a Moscow cathedral. The regional courts, Mordovia and Perm, are generally reserved for dangerous criminals [Moscow Times report] and were described by the band's lawyer as "brutal." Both have been separated from their young children, who reside in Moscow. The third member of the band, Yekaterina Samutsevich, who was freed on appeal [JURIST report] earlier this month because she did not actually participate in the protest song vowed on Friday to take the band's case to the European Court of Human Rights [official website] on charges that the Russian government violated the band's right to free speech [Moscow Times report] and illegally detained them. Samutsevich alleges that the Russian courts failed to be impartial, but stated that the band has succeeded in its goal of igniting debate about the connection between Putin and the Orthodox Church.

Claiming her situation within the appeal was unique because she did not perform, Samutsevich had previously asked for a delay in the proceedings after firing the lawyer [JURIST report] that had been representing the band as a whole. Samutsevich, Tolokonnikova and Alyokhina were given two-year prison sentences after they were convicted [JURIST report] in August of hooliganism in connection with "guerrilla performance" of a protest song in February at the altar of downtown Moscow's Christ the Savior Cathedral. Several days prior to the trial Russian Prime Minister Dmitry Medvedev [official website, in Russian] called for the release of the band members, saying that time served has been severe enough and that any more time in prison would be counterproductive. The Russian Presidential Council on Human Rights [official website, in Russian] has questioned the legitimacy [JURIST report] of the court's verdict and sentence. Pussy Riot's defense lawyers moved [JURIST report] earlier in August to have one of the judges recuse herself from the case, saying her decisions were politically motivated. Since the beginning of the trial [JURIST report], the group's lawyers and human rights groups have said the charges were politically motivated by Putin to discredit his opposition.




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ICC Chief Procecutor visits Kenya to prepare for post-election violence trial
Dan Taglioli on October 22, 2012 12:17 PM ET

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[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Fatou Bensouda [official profile] on Monday began her first official visit to Kenya with a statement [ICC press release] that the ICC will not delay the scheduled trial of four Kenyans facing charges of crimes against humanity, even though two of the accused will be top candidates in the Kenyan elections next year. Bensouda is on a five-day visit to Kenya as part of the ICC's preparation for the trial [case materials] of former Kenyan minister William Ruto and journalist Joshua Arap Sang, which will begin [JURIST report] on April 10, and the trial [case materials] of Deputy Prime Minister Uhuru Kenyatta and former civil service chief Francis Muthaura, scheduled to begin on April 11. The four men have been accused and charged with involvement in the 2007-08 Kenyan post-election violence [JURIST news archive] with Ruto and Sang facing three counts of murder, forcible transfer and persecution. Kenyatta and Muthaura are facing five counts of orchestrating murder, rape, forcible transfer and persecution during the presidential election violence in which more than 1,000 people died. In her official statement Bensouda made clear that the ICC will not adjust its calendar despite the fact that Kenyatta and Ruto are to be significant participants [Africa Review report] in next year's election:
The ICC Judges have agreed there are substantial grounds to believe that the four suspects committed the crimes they are charged with and that the cases should go to trial. The four are presumed innocent until proven guilty and the burden of proof is on my Office to prove the cases against them beyond reasonable doubt. Let me stress this: the people of Kenya are not on trial; the Government of Kenya is not on trial and no ethnic community is on trial before the ICC. The allegations concern individual criminal responsibility.
Bensouda went on to state that even if Kenyatta and Ruto win the upcoming elections they will not be granted immunity. Bensouda is scheduled to meet with top Kenyan officials as well as post-election violence victims and witnesses during her trip.

Bensouda was sworn in as ICC Prosecutor [JURIST report] in June. That month the ICC expressed its desire to start the two Kenyan trials simultaneously [JURIST report] to avoid any appearance of bias in the March 2013 presidential election. In May, the appeals chamber of the ICC rejected [JURIST report] the jurisdiction challenges in the two cases presented by the defense, clearing the way for trial. The defense lawyers had argued that the court lacks subject matter jurisdiction over the cases. The appeal stemmed from the pre-trial chamber's decision to confirm the charges [JURIST report] against the four men in January. The ICC claimed jurisdiction over the case despite Kenya's calls for dismissal [JURIST report]. The Kenyan government argued that it was capable of prosecuting the accused men domestically.




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