JURIST - Paper Chase

Germany court rules for Motorola in Microsoft patent dispute

Michael Haggerson — 2012-10-05T13:48:36-05:00

[JURIST] The Mannheim Regional Court in Germany ruled for Motorola Mobility, a subsidiary of Google, against Microsoft [corporate websites] on Friday. This was the fourth decision [FOSS Patents report] in a suit between Motorola and Microsoft to be issued this year, all of which were countersuits by Microsoft against claims by Motorola. All of the prior decisions had come down in Microsoft's favor up to this point. The patent at issue, EP1233343 [text], is for technology that allows applications to work with different mobile communication hardware and cellular networks [FOSS Patents report]. This allows the same application to work with different mobile phones. The court found that Motorola did not infringe Microsoft's patent. Microsoft is expected to appeal the ruling.

Motorola has been very active in German courts both seeking to protect and asserting its intellectual property. In September Apple [corporate website] won an injunction against Motorlola for infringing EP2126788 [JURIST report] which covered "rubber-banding" technology in scrolling lists. In July a German court granted an injunction for Microsoft against Motorola in a patent infringement case over EP0618540 [JURIST report] which involved technology relating to common names for long and short file allocation tables. Also in July a German court dismissed a patent infringement suit by Microsoft over EP1304891 [JURIST report] which monitors different functions on a smartphone and provides such information to other applications utilizing them. Another case that was brought by Microsoft against Motorola Mobility involving a patent on system input methods is postponed to September 20. In February Apple sued Motorola in the US District Court for the Southern District of California [official website] seeking an injunction [JURIST report] to stop Motorola from bringing patent claims against Apple in Germany, alleging that the German suit violates a licensing agreement between Motorola and Qualcomm.

UN: proposed Ukraine gay propaganda ban violates human rights

Michael Haggerson — 2012-10-05T13:08:02-05:00

[JURIST] The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] on Friday condemned [press release] a draft law [bill 8711 materials, in Ukrainian] that would ban pro-gay "propaganda" in Ukraine. The OHCHR said that the bill would be open to abuse and that it violates human rights and Ukraine's commitments to anti-discrimination and the protection of minority rights. In its current draft form, the bill authorizes fines and prison sentences of up to five years for "promotion of homosexuality." Ukrainian Parliament Commissioner for Human Rights Valeria Lutkovska criticized [Interfax report] the bill for failing to define what exactly "promotion of homosexuality" entails. The bill 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.

The Ukrainian parliament gave the bill preliminary approval [JURIST report] earlier this week. 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.

UK court allows Kenya ex-prisoners to sue for colonial-era torture

Dan Taglioli — 2012-10-05T11:36:36-05:00

[JURIST] The Queen's Bench Division [official website] on the High Court of England and Wales ruled Friday that three elderly Kenyans can sue the British government for torture they suffered while in detention under the British Colonial Administration in the 1950s. Judge Richard McCombe ruled that the three Kenyans could claim damages against the British government [Guardian report] for the harm they sustained at the hands of their captors during the Mau Mau uprising [Leigh Day & Co. backgrounder] in the days of the British Empire. The three claimants, who were not in court to hear the ruling, seek apologies from the British government and reparations in the form of welfare benefit funding for other Kenyan victims of colonial torture.

The three Kenyans suffered horrific ordeals [Reuters report]. Paulo Nzili, 85, was captured on his way home from defecting from the Mau Mau and castrated by in British custody. Wambugu Wa Nyingi, 84, was never a member of Mau Mau but spent nine years in detention without charge, suffering severe beatings that often killed his fellow detainees. Jane Muthoni Mara, 73, was sexually abused and raped while in detention when she was only about 15 years old. There had also been a fourth claimant, Susan Ciong'ombe Ngondi, but she died two years ago at the age of 71.

The government had argued that too much time had passed for there to be a fair trial, but in July 2011 McCombe rejected the contention [JURIST report] that the alleged abuses occurred too long ago and that all liability of the colonial administration passed to the Kenyan government upon gaining independence in 1963. The Kenyans first sued the British government [JURIST report] in June 2009 to bring to court their allegations that they were abused in British Colonial prison camps. The Mau Mau rebellion was led by members of the largely impoverished Kikuyu tribe [Africa Guide backgrounder] and lasted from 1952-1960. The uprising was notorious for atrocities committed by both the rebels and British colonial forces. Official casualty figures eventually set the number of European deaths at 32 and the number of Kenyans killed at just over 11,000. Approximately 90,000 Kenyans were executed, tortured or maimed during the crackdown [AP report] against the Mau Mau, according to the Kenya Human Rights Commission [advocacy website].

UK court approves extradition of terror suspects to US

Rebecca DiLeonardo — 2012-10-05T11:30:53-05:00

[JURIST] The High Court of England and Wales on Friday approved the extradition of five terror suspects to the US. The court's decision comes a week after the European Court of Human Rights (ECHR) [official website] gave its final approval of the extradition, which it had initially approved [JURIST reportS] in April. Egyptian-born Muslim cleric Abu Hamza al-Masri [BBC profile; JURIST news archive] and four other suspects appealed [JURIST report] that ruling in July, but the ECHR declined to revisit their arguments. In its decision, the court criticized the extensive time spent litigating the extradition [BBC report]. In addition to al-Masri, British citizens Syed Talha Ahsan and Babar Ahmad [advocacy website; BBC profile] and Saudi-born Khaled Al-Fawwaz are now slated to be extradited. All five men are wanted in the US on terrorism charges and will face imprisonment without parole at ADX Florence [BOP backgrounder], a super-maximum security prison in Colorado. It has not been announced when the group will be extradited nor when they will be tried in the US.

The ECHR's decision in April marked a change in position for the court from its position two years ago, when it stayed the extradition [JURIST report] of four of the terrorism suspects to the US, holding that potential punishment could violate European Convention on Human Rights [text] provisions on the prohibition of torture and inhumane or degrading treatment. The UK High Court approved the extradition [JURIST report] of Aswat and Ahmad to the US in 2006. Aswat is wanted in the US on suspicion of setting up a terrorist training camp and Ahmad is wanted for conspiring to kill Americans and running a website used to fund terrorists and recruit al Qaeda members. The extraditions were approved only after the US offered assurances that it would not seek the death penalty, try the suspects before military tribunals or declare them enemy combatants. A British court approved the extradition [JURIST report] of al-Masri in 2007. Hamza, who is currently serving a seven-year sentence in the UK [JURIST report] for urging his followers to kill Jews and other non-Muslims, faces US charges of attempting to establish terrorist training camps in Oregon, conspiring to take hostages in Yemen, and helping terror training in Afghanistan.

Australia High Court upholds tobacco plain-package law

Dan Taglioli — 2012-10-05T10:21:09-05:00

[JURIST] The High Court of Australia [official website] on Friday published its reasons [text, PDF] for dismissing a lawsuit brought by several large international tobacco companies challenging the labeling requirements of the Tobacco Plain Packaging Act 2011 (TPP Act) [materials]. The court originally dismissed the challenge [JURIST report] in August but provided its reasons only this week. The TPP Act sets criminal and civil penalties for failure to conform to the Tobacco Plain Packaging Regulations 2011 [materials], which impose significant restrictions on the color, shape, finish and other aesthetic details of retail packaging for tobacco products and mandate specific health warnings be printed on each pack. British American Tobacco, Imperial Tobacco Australia Limited, Philip Morris and Japan Tobacco International [corporate websites] argued that the TPP Act would amount to an unconstitutional acquisition of the tobacco giants' intellectual property rights and goodwill thereof. The court disagreed:

By prescribing what can and cannot appear on retail packaging the TPP Act affects that packaging and those who produce and sell the tobacco products. But to characterise this effect as "control" diverts attention from the fundamental question: does the TPP Act give the Commonwealth a legal interest in the packaging or create a legal relation between the Commonwealth and the packaging that the law describes as "property"? Compliance with the TPP Act creates no proprietary interest ... The TPP Act is not a law by which the Commonwealth acquires any "interest in property, however slight or insubstantial it may be" ... The arguments advanced by the tobacco companies are answered by the logically anterior conclusion that the TPP Act effects no acquisition of property.

The regulations specifically dictate that cigarette packs have, among other requirements, largely plain outer surfaces the green-brown "colour known as Pantone 448C" and that the brand or business name be printed in Lucida Sans typeface "no larger than 14 points in size" and "in the colour known as Pantone Cool Gray 2C." Trademarks appearing on the packaging must conform to specific regulations.

Tobacco regulations have long been a contentious subject. Also in August the US Court of Appeals for the District of Columbia Circuit [official website] ruled that tobacco companies do not need to print graphic warnings of the dangers of smoking on cigarette packages. In July the US Court of Appeals for the Second Circuit [official website] struck down [JURIST report] a law requiring stores todisplay graphic anti-tobacco adswhere tobacco products are sold. In March the US Court of Appeals for the Sixth Circuit ruled that graphic cigarette label warnings [JURIST news archive] are constitutional. The court decided unanimously that the portions of the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text] designed to limit the tobacco industry's ability to advertise to children, including a ban on distributing clothing and goods with logos or brand names, as well as sponsorship of cultural, athletic and social events requiring cigarette packaging and advertisements, is a valid restriction of commercial speech. President Barack Obama signed [JURIST report] the FSPTCA into law in 2009, granting the FDA certain authority to regulate manufactured tobacco products.

Syria must release detained human rights lawyer: AI

Sarah Posner — 2012-10-05T08:31:38-05:00

[JURIST] Amnesty International (AI) [advocacy website] on Thursday urged Syria to release a prominent human rights lawyer [press release] and his friend believed to be detained by security forces. AI contends that both men should be released immediately unless they are charged with an internationally recognized offense. A Deputy Director for Amnesty International states that "the families of these men have a right to know what has happened to them. If they are held, they should be released immediately and unconditionally unless they are charged with an internationally recognisable offence." Khalil Ma'touq and his friend were last seen on Tuesday morning, leaving their home in Damascus for work. The two men both had to pass through numerous government checkpoints on their way to work, but neither of them made it into work that day. Now, both the men's cell phones are not working. Ma'touq is part of Syria's Christian minority and has been working as a human rights lawyer for several years, defending individuals before the State's Security Court.

Last month the UN Human Rights Council passed a resolution [JURIST report] extending the mission of the UN Independent International Commission of Inquiry (COI) in Syria. The panel of independent experts is charged with investigating the human rights situation in the country amidst the prolonged and violent conflict between government and opposition forces. The COI last week testified before the Human Rights Council that human rights violations in Syria were increasing in severity and number [JURIST report]. Chair of the COI Paulo Pinheiro stated that both sides of the Syrian conflict are committing war crimes and that government forces are committing crimes against humanity. He said that the government was using regular bombing of residential neighborhoods via both artillery shelling and airstrikes and mechanized infantry to clear out anti-government groups.

Google, publishers settle dispute over book scanning initiative

Sarah Posner — 2012-10-05T07:04:15-05:00

[JURIST] Google [corporate website] and the Association of American Publishers (AAP) [association website] on Thursday announced a settlement [press release] over Google's book-scanning initiative [website]. Authors and publishers have alleged that Google was illegally profiting off of their works by scanning more than 20 million books [AP report]. One particularly contentious issue was that Google would include books in its book-scanning initiative unless an author or publisher affirmatively objected to its inclusion in the project. Therefore, an author's works could be published without the author's knowledge since Google did not obtain permission from either authors or publishers. This settlement does not require court approval since the only parties involved in the settlement are parties to the litigation. There is still an outstanding lawsuit between various authors and Google, leaving the future of Google's book-scanning initiative uncertain.

Last month the US Court of Appeals for the Second Circuit suspended litigation [JURIST report] between the Authors Guild [advocacy website] and Google pending an appeal of a May ruling allowing a class action lawsuit [JURIST report] over Google's book-scanning initiative. Both sides have tried to resolve the dispute without litigation, but their settlement agreement was rejected [JURIST report] by Circuit Judge Denny Chin in March 2011. The agreement was reached in 2008 between Google and plaintiffs including the Guild, who brought the copyright suit [JURIST reports] in 2005.

Eighth Circuit affirms dismissal of health care law challenge

Brandon Gatto — 2012-10-04T15:41:23-05:00

[JURIST] The US Court of Appeals for the Eighth Circuit [official website] on Thursday upheld the dismissal [opinion, PDF] of a challenge to the Patient Protection and Affordable Care Act (PPACA) [text; JURIST backgrounder] due to the plaintiffs' lack of standing. Although Missouri Lieutenant Governor Peter Kinder [official website] and six other citizens alleged that the PPACA violates provisions of both the US and Missouri constitutions, the Eighth Circuit emphasized that even a finding of proper standing would result in dismissing the case based on the Supreme Court [official website] decision in National Federal of Independent Business v. Sebelius [opinion, PDF; JURIST report] in June. The court here, however, concluded that Kinder lacked standing "because he sued in his individual capacity, and he could not allege injury based on his performance of duties as an officer of the State of Missouri," thus negating the need to even discuss the Supreme Court decision. The Eighth Circuit's ruling affirms a decision [JURIST report] made in April 2011 by the US District Court for the Eastern District of Missouri [official website] on the same grounds.

In July the US District Court for the District of Nebraska [official website] dismissed a lawsuit [JURIST report] filed by seven state attorneys general challenging the PPACA's health care mandates, particularly those that require all employer health care plans, including those of religious institutions, to cover contraception. In June the Supreme Court's 5-4 ruling that declared the PPACA constitutional centered on the "individual mandate" provision [text] of the act, which requires every person, with some exceptions for religious and other reasons, to purchase some form of health insurance by January 1, 2014, or be subject to a fee equal to either a percent of that individual's income or flat rate of $695. In his opinion, Chief Justice John Roberts held that individual mandate is not a requirement that Americans buy insurance, since individuals who choose to pay the flat-rate fee are in full compliance with the law. The Court's decision resolved four consolidated cases accepted by the court [JURIST report] in November 2011.

UN rights chief urges Serbia to allow gay pride parade

Brandon Gatto — 2012-10-04T14:56:15-05:00

[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Thursday urged Serbia [press release] to protect universal freedoms and allow a banned pride parade for the lesbian, gay, bisexual and transgender community. The pride parade, which was scheduled to be held this Saturday in Belgrade, was canceled [Reuters report] by the Serbian Ministry of Interior [official website] for security reasons. A similar cancellation occurred last year after the Belgrade parade of 2010 [ABC News report] amounted to violent attacks, vandalism, and wounded police officers and civilians. Pillay, however, parried the security argument by reasoning that banning peaceful assembly altogether further violates human rights. "States should confront prejudice, not submit to it," said the High Commissioner, who relied on the fundamental freedoms of expression, association and peaceful assembly to make her case to the Serbian government. Pillay also acknowledged Serbia's progress in the protection of human rights since 2008, and deemed the Belgrade parade another opportunity for the country to reaffirm its commitment to human rights. Outside of the parade, Serbia has on previous occasions celebrated gay rights [press release], most notably on International Gay Pride Day.

Serbia is one of several countries allegedly restraining freedom of expression in light of a restrictive approach to gay pride parades. In August a city court in Moscow refused to overturn [JURIST report] the municipal government's ban on gay pride marches for the next century. Specifically, the court affirmed the Moscow municipal government ruling that any public gatherings classified as gay pride marches are prohibited from March 2012 until May 2112. In June Human Rights Watch (HRW) [advocacy website] sent a letter [JURIST report] to Bulgarian Justice Minister Diana Kovacheva urging her to denounce calls to violence by anti-gay groups in anticipation of a gay pride parade in Sofia, Bulgaria, on June 30. In May 2010 a court in Lithuania ruled [JURIST report] that the nation's first gay pride parade could proceed as scheduled, overturning a lower court's decision to ban it.

Bosnia court acquits two former policemen in Srebrenica massacre case

Rebecca DiLeonardo — 2012-10-04T12:55:17-05:00

[JURIST] The war crimes court [official website] of Bosnia and Herzegovina (BiH) on Wednesday acquitted [press release] two Serbian defendants of involvement in the 1995 Srebrenica massacre [BBC backgrounder; JURIST news archive]. Dragan Neskovic and Zoran Ilic were charged with crimes against humanity for their role in the massacre at Srebrenica and other war crimes. In a press release, the court announced that the two men were acquitted because "it was not proven that they committed the crime they were charged with." Ilic was arrested [JURIST report] in 2009 with two other police officers for their alleged involvement in the massacre. While the International Criminal Tribunal for the former Yugoslavia (ICTY) has jurisdiction over high-level war crimes allegations, such as those against Bosnian Serb wartime leader Radovan Karadzic [ICTY materials; JURIST news archive] and General Ratko Mladic [ICTY materials], the BiH courts have been able to try lower-level suspects.

BiH has been continuously prosecuting, convicting and sentencing those responsible for the killing during the massacre, and even those who left the country are being brought back to face charges. In June the country's war crimes court sentenced [JURIST report] four former Bosnian Serb soldiers [case materials, in Croatian] for their involvement in the 1995 massacre. In May US resident Dejan Radojkovic was deported [JURIST report] to BiH to stand trial before the country's court for his actions as a police commander in Srebrenica during the 1995 massacre. He was arrested in 2009 after it was revealed that he did not disclose his involvement in the conflict and his appeal was rejected in February. He was the second to be deported after his commanding officer, Nedjo Ikonic, was deported in 2010 [JURIST report]. A day earlier, the war crimes court convicted [JURIST report] Dusko Jevic and Mendeljev Djuric for taking part in the killing of 1,000 Muslim men during the massacre after it found that the two former Bosnian Serb police officers were guilty of aiding and abetting genocide. They had been indicted on genocide charges in January 2010 after being arrested [JURIST reports] in October 2009. In January the court also upheld the conviction [JURIST reports] and 31-year sentence of Radomir Vukovic for his part in the 1995 massacre.

Philippines court orders arrest of former president

Rebecca DiLeonardo — 2012-10-04T12:25:02-05:00

[JURIST] An anti-graft court in the Philippines on Thursday ordered the arrest of former president Gloria Macapagal-Arroyo [BBC profile; JURIST news archive] in a corruption case alleging the misuse of state lottery funds. This is the third corruption case pending against Arroyo, who made bail in July [JURIST report] after eight months of detention in an army hospital. This most recent case against Arroyo accuses her of misusing over $8 million in state lottery funds while in office. Other corruption cases accuse her of election fraud and accepting bribes. Arroyo has maintained her innocence in all cases, suggesting the charges are politically motivated. Lawyers for Arroyo told the court on Thursday that the newest charges were unsupported [AP report] and that the government's witnesses do not have first-hand knowledge of the events. The court has agreed to review the charges.

Former president Arroyo has been a target of anti-corruption efforts by President Benigno Aquino [BBC profile]. Arroyo was arrested [JURIST report] in November on fraud and corruption charges in the hospital before she was able to leave the country to seek medical treatment. 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. He was accused of accepting bribes to support the $329-million national broadband network deal with ZTE Corporation. 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.

Iraq court sentences US citizen to life in prison for aiding al Qaeda

Max Slater — 2012-10-04T10:44:13-05:00

[JURIST] An Iraqi court on Wednesday sentenced an American citizen to life in prison for funding terrorist activities in Iraq and aiding al Qaeda. Iraq's central criminal court convicted [AP report] Omar Rashad Khalil following a confession he made in which he admitted to receiving money from a Syrian man in the UAE to finance terrorist attacks. The Iraqi Ministry of the Interior [official website, in Arabic] released excerpts of Khalil's confession. Khalil, a 53-year-old architect, was arrested in 2010 [Reuters report] and charged with helping finance and execute terrorist operations in Iraq. The Ministry of the Interior indicated [Global Post report] that al Qaeda recruited Khalil in 2005 after he entered Iraq in 2001.

Iraq's criminal justice system has been the subject of controversy recently. Last month an Iraqi court sentenced former vice president Tariq al-Hashemi [JURIST news archive] to death after convicting him of three counts of murder [JURIST report]. In August a UN human rights expert condemned [JURIST report] Iraq for the executions of 26 people and urged the government of Iraq to halt all executions and ensure that all criminal defendants have fair trials.

Federal judge strikes down Montana campaign finance law

Max Slater — 2012-10-04T09:45:43-05:00

[JURIST] A judge for the US District Court for the District of Montana [official website] on Wednesday ruled [order, PDF] that a state law [MCA § 13-37-216] that limits campaign contributions violates the free speech clause of the First Amendment [Cornell LII backgrounder]. Montana's campaign finance law limits the individual contributions to gubernatorial and lieutenant governor candidates to $500 and contributions to candidates for other statewide offices to $250. Judge Charles Lovell held that the law unconstitutionally prevents both candidates and potential donors from being able to wage an effective political campaign:

[T]he Court concludes that Montana's contribution limits in Montana Code Annotated Section 13-37-216 are unconstitutional under the First Amendment. ... The contribution limits prevent candidates from amassing the resources necessary for effective campaign advocacy. ... The defendants are therefore permanently enjoined from enforcing these limits.

Montana Attorney General Steve Bullock plans to appeal the decision to the US Court of Appeals for the Ninth Circuit [official websites].

In June the US Supreme Court [official website] struck down [JURIST report] Montana's century-old campaign finance law known as the 1912 Corrupt Practices Act [PPL backgrounder] as invalid under the Supreme Court's 2010 ruling in Citizens United v. Federal Election Commission [JURIST report]. The Supreme Court's decision overturned a ruling [JURIST report] by the Montana Supreme Court [official website] that upheld the Corrupt Practices Act.

Supreme Court hears arguments on habeas corpus, takings clause

Jaimie Cremeans — 2012-10-04T07:39:42-05:00

[JURIST] The US Supreme Court [official website] on Wednesday heard oral arguments [day call, PDF] in two cases. In Johnson v. Williams [transcript, PDF; JURIST report] the court heard arguments on whether a state court can "adjudicate on the merits" a case when it has denied a habeas corpus [Cornell LII backgrounder] claim but not expressly mentioned a federal law basis for doing so. In this case, the defendant argues that the California state trial court violated her Sixth Amendment [text] right to a trial by an impartial jury by dismissing the lone juror who was holding out for her acquittal based on a finding that the juror was disregarding court orders and holding the prosecution to a higher standard of proof than required by law. Although a federal district court denied her petition for habeas corpus, the US Court of Appeals for the Ninth Circuit reversed the lower court and granted [opinion, PDF] her petition. The Ninth Circuit ruled that the state trial court "cut some corners" to avoid a hung jury and lacked "good cause" to dismiss the juror. The state of California, however, argued Wednesday that there is a categorical rule that deference should be given to a state court to determine the merits of a federal claim, including one for a writ of habeas corpus.

The court also heard arguments in Arkansas Game & Fish Commission v. United States [transcript, PDF; JURIST report] to determine whether recurring flooding of property caused by federal governmental actions constitutes a "taking" under the Takings Clause [Cornell LII backgrounder] of the Fifth Amendment [text], requiring the federal government to pay due compensation to owners of damaged property, if it is only temporary. The Arkansas Game & Fish Commission brought this action against the federal government, alleging that the US Army Corps of Engineers [official websites] caused increased flooding on one of its properties, which in turn damaged timber. The commission claims the damaging of timber on its property constituted a taking for which it deserved compensation, and the US Court of Federal Claims [official website] agreed and awarded damages of more than $5.6 million. The US Court of Appeals for the Federal Circuit, however, overturned [opinion] that ruling, saying that the flooding did not constitute a taking because it was only temporary and did not permanently take over the land. The commission argued to the Supreme Court that it should not matter whether the water remains on the land permanently, but that the government should compensate landowners whenever it releases water that causes a "physical invasion" of private property.

Sixth Circuit upholds Ohio law limiting 'abortion pill'

Jerry Votava — 2012-10-03T15:45:03-05:00

[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.

Haiti urged to strengthen rule of law institutions

Sung Un Kim — 2012-10-03T14:33:34-05:00

[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.

Former Congo militia leader appeals ICC sentence

Jerry Votava — 2012-10-03T14:22:12-05:00

[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.

Turkish court hands life sentences to guards responsible for activist's death

Sung Un Kim — 2012-10-03T13:42:21-05:00

[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.

UN rights office condemns Iran crackdown on dissidents

Keith Herting — 2012-10-03T10:54:54-05:00

[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].

Federal appeals court extends stay on order blocking indefinite detention law

Matthew Pomy — 2012-10-03T10:28:20-05:00

[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.

Ukraine president applauds cancelation of proposed libel bill

Matthew Pomy — 2012-10-03T09:54:34-05:00

[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.

Hamas criminal justice system violating human rights: HRW

Keith Herting — 2012-10-03T09:41:08-05:00

[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.

Malaysia court awards damages to former detainees

Maureen Cosgrove — 2012-10-03T09:24:06-05:00

[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.

Mississippi voter ID law delayed pending federal review

Maureen Cosgrove — 2012-10-03T08:57:22-05:00

[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.

Ukraine lawmakers give preliminary approval to gay propaganda ban

Julia Zebley — 2012-10-03T08:03:20-05:00

[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.