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Legal news from Friday, February 15, 2013




Kenya government sued for police brutality during 2007 post-election violence
Addison Morris on February 15, 2013 2:35 PM ET

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[JURIST] The Kenyan government is being sued for police brutality in the violence that followed the country's 2007 presidential election [JURIST news archive]. The suit has been brought against the government by the families of seven victims and eight wounded survivors, along with four human rights groups. According to the suit [Standard report], unlawful orders were given to police, who had not been trained in lawful methods for dealing with the civil unrest that resulted from a dispute in the 2007 general elections. Kenya's police force has long been criticized by advocacy groups for ineffectiveness, corruption, and human rights violations. Human Rights Watch (HRW) [advocacy website] released a report [text, PDF] earlier this month entitled "High Stakes: Political Violence and the 2013 Elections in Kenya," in which it details the police shortcomings and rural violence that in 2012 and early 2013 alone have claimed more than 477 lives and displaced approximately 118,000 people. "Many of these incidents have been linked to pre-election maneuvering as local politicians mobilize support," the report stated. "The police and other authorities have repeatedly failed to prevent the violence or hold those responsible to account." The lawsuit comes as Kenya prepares for the March 4 election, which will be the country's first election since the eruption of the 2007 violence. Kenya's High Court announced Friday that it lacks the jurisdiction to determine whether presidential hopeful Uhuru Kenyatta and running mate William Ruto, who both face International Criminal Court (ICC) [official website] trials for crimes against humanity, are eligible to run for office next month.

Allegations of fraud [JURIST report] following the 2007 elections led to violence that caused the deaths of more than 1,000 people and displacement of 500,000 others, and remains a concern in the international community. The ICC initiated a formal investigation into the violence after Kenya failed to conduct [JURIST report] its own investigation in 2009. In July 2012 the ICC set the trial dates [JURIST report] for the post-election violence cases against Kenyatta, Ruto, journalist Joshua Arap Sang and former civil service chief Francis Muthaura. The trial of Ruto and Arap Sang is expected to start [decision, PDF] on April 10, while the trial of Kenyatta and Muthaura is to begin [decision, PDF] on April 11. In June, 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. The four men have been accused and charged with involvement in the 2007 post-election violence. Ruto and Sang are facing three counts of murder, forcible transfer and persecution while Kenyatta and Muthaura are facing five counts of orchestrating murder, rape, forcible transfer and persecution in the polls' aftermath.




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UN sends team to investigate human rights violations in Mali
Samuel Franklin on February 15, 2013 2:15 PM ET

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[JURIST] The UN confirmed on Friday that a four-person team was on the ground in Mali to investigate potential violations of humanitarian law. According to Cecile Pouilly, spokesperson for the UN High Commissioner for Human Rights [official website], the fact-finding mission will investigate [press release] allegations of retaliatory violence. In January British and US militaries provided logistical support [UPI report] for a French intervention in Mali, targeting militant Islamist groups.

Mali has drawn increased international scrutiny recently, particularly from the UN as more reports of political violence and human rights abuses come to light. Earlier this month UN Special Advisor on the Prevention of Genocide Adama Dieng [official profile] warned [JURIST report] of an increased risk of reprisal attacks against ethnic Tuareg and Arab civilian populations in the northern regions of Mali. In January the International Criminal Court Chief Prosecutor Fatou Bensouda [official profile] warned [JURIST report] the Malian government over reports of human rights abuses by Malian forces. In the statement, Bensouda urged Malian authorities to put an immediate stop to the alleged abuses and to investigate and prosecute those responsible. Bensouda announced that her office has launched an investigation [JURIST report] into possible war crimes committed in the region.




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Germany court rules for Facebook in privacy dispute
Samuel Franklin on February 15, 2013 12:43 PM ET

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[JURIST] A German court on Thursday ruled [press release, in German] for Facebook [corporate website] in a challenge over the social networking website's policy requiring users to register with their real names. The Independent Center for Privacy Protection [advocacy website], known in Germany as the ULD, brought the suit against the Palo Alto, California-based company alleging violation [press release] of German data protection laws in place to protect the fundamental right to freedom of expression on the Internet. The Administrative Court of the State of Schleswig-Holstein [official website] held that the ULD wrongly based [PCWorld report] its challenge on German law, stating that Facebook's handling of marketing and acquisition in Germany prevented the court from ruling on its data and personal information processing, an activity that is handled at the company's offices in Dublin, Ireland. According to the state regulator, the ULD is expected to appeal [Bloomberg report] the decision.

Facebook has faced numerous legal challenges in its near decade-long history. Aside from the company's major settlements with Eduardo Saverin and the Winklevoss twins, privacy advocacy groups Electronic Privacy Information Center and the Center for Digital Democracy [advocacy websites] urged [JURIST report] CEO Mark Zuckerberg in November to withdraw privacy changes, claiming that the alterations may violate a settlement [JURIST report] with the Federal Trade Commission [official website]. In August German data privacy authorities reopened [JURIST report] an investigation into Facebook's facial recognition software, taking issue with the website's ability to automatically recognize individuals' facial features in pictures.




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Pennsylvania voter ID law suspended for primary election
Benjamin Minegar on February 15, 2013 12:05 PM ET

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[JURIST] Lawyers for Pennsylvania and the American Civil Liberties Union of Pennsylvania (ACLU) [advocacy website] on Friday reached an accord allowing state residents to vote in upcoming primary and special elections without submitting identification. According to media sources, voters will be asked to present ID [Bloomberg report], but may decline to do so. The temporary agreement extends an October ruling [JURIST report] by a Pennsylvania Commonwealth Court [official website] judge enjoining enforcement of the state's voter ID law [HB 943 materials] for November's presidential election. Supporters of the proposed legislation say that it will combat voter fraud, but opponents fear that it will disenfranchise poor, elderly and minority voters who may find it difficult to obtain a photo ID. According to sources, the law has the potential to exclude nearly 800,000 eligible voters. The lawsuit is set to go to trial on July 15.

Voting rights [JURIST backgrounder] remain a contentious issue in the US. The ACLU challenged the law [petition for review, PDF; JURIST report] in May, asking a court to block enforcement of the law for the November elections. The group claimed that the law violates the Pennsylvania Constitution [text] and will prevent eligible voters from casting their votes. Pennsylvania Governor Corbett signed the bill into law [JURIST report] in March. It was passed earlier that week in the House of Representatives by a vote of 104-88. In November, the Pennsylvania Supreme Court vacated the decision [JURIST reports] of the Pennsylvania Commonwealth Court upholding the state's new voter identification law and remanded for further consideration. Unlike the current trend of voter ID laws, Pennsylvania's allows voters to vote without an ID as long as they verify their identity within six days of voting. Absentee ballots will also only require identification by Social Security number. 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.




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HRW: Amendments threaten legitimacy of Bangladesh war crimes tribunal
Max Slater on February 15, 2013 10:11 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] criticized Bangladesh [press release] on Thursday for offering retroactive amendments that change war crime laws to allow plaintiffs to appeal verdicts delivered by the nation's International Crimes Tribunal (ICT) [JURIST news archive]. The amendments were approved in response to days of protests [JURIST reports] that ensued after Abdul Quader Mollah, the leader of the Islamist Jamaat-e-Islami (JI) [party website] party, was sentenced to life in prison [JURIST report] for convictions including murder, rape and torture—a decision which the demonstrators assert is too lenient. HRW Asia Director Brad Adams denounced the retroactive amendments as a cynical ploy by the government to disregard unfavorable court decisions:
Justice for victims of war crimes and other serious abuses during the 1971 war of liberation is essential. But a government supposedly guided by the rule of law cannot simply pass retroactive laws to overrule court decisions when it doesn't like them. The Bangladesh government should pause, take a deep breath, and repeal the proposed amendments, which make a mockery of the trial process.
HRW also called on security forces in Bangladesh to restrict their use of deadly force to situations in which it is absolutely necessary.

Mollah's sentence was the latest to be handed down for war crimes committed during the 1971 Bangladesh Liberation War (BLW) [advocacy website]. Last week, UN officials expressed concern over a death sentence [JURIST reports] that was handed down last month against Abul Kalam Azad, another former leader of JI, for similar war crimes. Both Azad and Mollah's sentences were handed down by Bangladesh's ICT, which was established in March 2010 specifically to hear cases involving war crimes during the BLW.




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UN releases first human rights report on Transnistria
Sarah Paulsworth on February 15, 2013 10:02 AM ET

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[JURIST] The UN has called on the de facto authorities [press release] of the disputed region of Transnistria [BBC backgrounder] "to address the deeply rooted problems identified in the report and to fully implement its recommendations, including the development of a plan of action for human rights." According to the UN's first human rights report [text, PDF] on the contested region of Transnistria, which was released on Thursday, the de facto authorities should undertake thorough reform of the penitentiary system, including a reduction of the number of prisoners, the abolition of inhuman disciplinary measures in prisons and training of prison staff. The report's author, Thomas Hammarberg, also noted that steps should be made to harmonize Transnistria's legislation with international human rights law and people in the region, who have limited knowledge of Transnistria's Constitution [text, in Russian] and other laws, should be granted greater access to legal documents. "Mr. Hammarberg's research in the Transnistrian region clearly demonstrates how the deployment of technical human rights experts can truly benefit people on the ground, without having a bearing on issues of political recognition or the legal status of a territory," UN High Commissioner on Human Rights Navi Pillay [official profile] said of the report.

Transnistria is a territory located between Ukraine and Moldova. It is de jure a part of Moldova, but has had de facto independence since the early 1990s. In 1990, the region announced its intention to succeed from Moldova to become the Pridnestrovian Moldavian Republic (PMR). Between 1990 and 1992 at least 700 people were killed in fighting between Transnistrian separatists and Moldova. In a 2006 referendum that was not recognized by the international community [BBC report], 97 percent of the people in the region voted for independence and expressed support for a plan to eventually joining Russia.




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Australia court allows US company to patent breast cancer gene
Max Slater on February 15, 2013 8:59 AM ET

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[JURIST] An Australian court ruled [judgment] Friday that an American biotech company can patent a human gene linked to an increased risk of breast cancer. The Federal Court of Australia [official website] held that Myriad Genetics [corporate website], a US biotech firm, could patent the gene BRCA1 because the gene is not natural, but rather the product of human intervention. The plaintiffs in the case, Cancer Voices Australia [advocacy website], criticized the court ruling [CNN report] as detrimental to cancer patients and argued that genes are products of nature that cannot be patented. Judge John Nicholas rejected the plaintiffs' argument, holding that although naturally occurring genes could not be patented, BRCA1 could be patented because it was artificially created:
There is no doubt that naturally occurring DNA and RNA as they exist inside the cells of the human body cannot be the subject of a valid patent. However, the disputed claims do not cover naturally occurring DNA and RNA as they exist inside such cells. The disputed claims extend only to naturally occurring DNA and RNA which have been extracted from cells obtained from the human body and purged of other biological materials with which they were associated.
The plaintiffs plan to appeal the ruling to the High Court of Australia [official website].

A similar gene patent case is pending [JURIST report] before the US Supreme Court [official website]. The American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [complaint, PDF] against Myriad Genetics in 2009, arguing that genes could not be patented because they are products of nature, and patenting genes would violate the First Amendment [ACLU backgrounder]. The US District Court for the Southern District of New York [official website] ruled in favor of the plaintiffs, but the US Court of Appeals for the Federal Circuit [official website] reversed the ruling [JURIST report] in August, saying that Myriad had a right to patent the isolated cells because they were "transformed" and Myriad's method of isolation included steps that were not naturally occurring. When asked to reconsider the case in light of Mayo Collaborative Services v. Prometheus Laboratories, Inc. [opinion, PDF], a case in which the Supreme Court ruled earlier this year to deny medical tests relying on correlations between drug dosages and treatment cannot be patented, the judges were split on how it applied and each stuck to his or her original decision on the outcome.




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Illinois Senate approves same-sex marriage bill
Sarah Posner on February 15, 2013 8:15 AM ET

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[JURIST] The Illinois State Senate [official website] on Thursday approved a bill [SB 10, PDF] to legalize same-sex marriage [JURIST backgrounder]. The senate voted 34-21 to lift the ban [AP report] on same-sex marriage in the state of Illinois. The bill, referred to as the Religious Freedom and Marriage Fairness Act, was passed largely on party lines with only one Republican voting in favor of the legislation. Before voting on this legislation, the state senate adopted an amendment to the bill stating that religious organizations will not be forced to recognize same-sex marriages. The amendment also explicitly states that churches cannot be sued for prohibiting their parishes from performing same-sex marriages. The bill states: "All laws of this State applicable to marriage, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil or criminal law, shall apply equally to marriages of same-sex and different-sex couples and their children." If the Senate's bill is passed by the House and signed into law by Governor Pat Quinn, Illinois would be the tenth state to legalize same-sex marriage.

Same-sex marriage is currently legal in nine states, as well as the District of Columbia. Last month, the Rhode Island House of Representatives approved [JURIST report] a bill [H 5015, PDF] that would legalize same-sex marriage in the state. The bill passed by a vote of 51-19 after a lengthy debate on the House floor. Rhode Island is currently the only state in New England that has not legalized same-sex marriage, and previous attempts to legalize same-sex marriage in the predominantly Catholic state have been unsuccessful. Earlier in January the US Supreme Court received briefs [JURIST report] in two separate cases defending the constitutionality of laws that define marriage as strictly between one man and one woman.




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