[JURIST] Australian Minister for Immigration and Citizenship Chris Evans [official website] has announced [speech transcript; press release] that the country will no longer impose mandatory detention on all those who enter the country seeking asylum. Evans said Tuesday that the country's existing immigration policy imposed detentions too broadly, held immigrants in unacceptable conditions, and that those who were detained often lacked means to challenge their detention. Making the announcement, he laid out what he called the seven "values" of the country's new approach, which he said would base the treatment of immigrants on the estimated risk they pose to the country's security:

1. Mandatory detention is an essential component of strong border control.
   
2. To support the integrity of Australia’s immigration program, three groups will be subject to mandatory detention:
   a. all unauthorised arrivals, for management of health, identity and security risks to the community
   b. unlawful non-citizens who present unacceptable risks to the community and
   c. unlawful non-citizens who have repeatedly refused to comply with their visa conditions.
   
3. Children, including juvenile foreign fishers and, where possible, their families, will not be detained in an immigration detention centre (IDC).
   
4. Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention, including the appropriateness of both the accommodation and the services provided, would be subject to regular review.
   
5. Detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time.
   
6. People in detention will be treated fairly and reasonably within the law.
   
7. Conditions of detention will ensure the inherent dignity of the human person

[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] Tuesday ruled [opinion, PDF] that a lower court had erroneously dismissed a Federal Trade Commission (FTC) lawsuit seeking to prevent Whole Foods Market [corporate website] from buying out competitor Wild Oats Markets. The FTC had been seeking a temporary injunction against the merger while it conducted an investigation into whether the deal would violate antitrust laws [15 USC s. 18 text]. The FTC argued that the merger could give Whole Foods a monopoly on a specific high-end grocery market in some areas, but the lower court found that this could not qualify as a "market" under the law and dismissed the claim. Over objections from Whole Foods that the deal had effectively already gone through [corporate website], the circuit court ordered the lower court to more fully consider whether the kind of "market" the groceries control is one that is protected from monopolies under the law:

The FTC contended Whole Foods and Wild Oats are the two largest operators of what it called premium, natural, and organic supermarkets (“PNOS”). Such stores “focus on high- quality perishables, specialty and natural organic produce, prepared foods, meat, fish and bakery goods; generally have high levels of customer services; generally target affluent and well educated customers [and] . . . are mission driven with an emphasis on social and environmental responsibility. ...

The FTC described the core PNOS customers, explained how PNOS cater to these customers, and showed these customers provided the bulk of PNOS’s business. The FTC put forward economic evidence—which the district court ignored—showing directly how PNOS discriminate on price between their core and marginal customers, thus treating the former as a distinct market. Therefore, we cannot agree with the district court that the FTC would never be able to prove a PNOS submarket.

[JURIST] The US House of Representatives [official website] late Tuesday approved by voice vote a resolution [HR 194 materials] apologizing to African Americans for slavery and Jim Crow laws [backgrounder]. The resolution declares:

That the House of Representatives--

(1) acknowledges that slavery is incompatible with the basic founding principles recognized in the Declaration of Independence that all men are created equal;

(2) acknowledges the fundamental injustice, cruelty, brutality, and inhumanity of slavery and Jim Crow;

(3) apologizes to African Americans on behalf of the people of the United States, for the wrongs committed against them and their ancestors who suffered under slavery and Jim Crow; and

(4) expresses its commitment to rectify the lingering consequences of the misdeeds committed against African Americans under slavery and Jim Crow and to stop the occurrence of human rights violations in the future.

[JURIST] The Massachusetts House of Representatives [official website] Tuesday voted 119-36 for a bill [HB 1710 petition, PDF] that would repeal a 1913 law barring people from marrying in Massachusetts if their own state would not recognize such a union. The state's Senate passed the bill [JURIST report] earlier this month and Massachusetts Governor Deval Patrick [official website] has said he will sign it into law when it reaches his desk. The original statute [text] gained attention because it has the effect of preventing most out-of-state same-sex couples from marrying in Massachusetts because most states do not allow the unions. In 2006, the Supreme Judicial Court of Massachusetts upheld the 1913 law [JURIST report] in Cote-Whitacre v. Department of Public Health [opinion, PDF] against a legal challenge, but the new law will take precedence if enacted. AP has more.

Massachusetts and California [JURIST news reports] are the only two US states to formally recognize same-sex marriages, and if Tuesday's bill is signed into law, neither state will impose residency restrictions on couples. Many states have banned same-sex unions through statutes or amendments, but several states besides Massachusetts and California do permit same-sex civil unions [JURIST news archive]. In May, New York Governor David Paterson ordered [memo, PDF; JURIST report] that state agencies recognize out-of-state same-sex marriages as legal marriages in New York.

[JURIST] The Constitutional Court of Turkey [official website, in Turkish] Wednesday rejected a bid to ban [JURIST report] the country's ruling Islamic Justice and Development Party (AKP) [party website, in Turkish], which was accused of ignoring the secular principles of the country's constitution [text]. Six of the 11 judges on the court favored dissolving the party, but seven would have been required to successfully pass the ban. The court agreed that the party violated the constitution's secular principles, but only ordered that the state treasury reduce the party's funding by half in response. Critics predicted that the decision could have grave consequences for the secular state, but others, including European Union officials [Hurriyet report], praised the ruling. European Parliament President Hans-Gert Poettering [official website] had earlier said it would be "absurd" [JURIST report] for the court to close the party as it had come to power through democratic means. Bloomberg has more. Hurriyet has local coverage.

In March, Chief Prosecutor Abdurrahman Yalcinkaya [official profile, in Turkish] petitioned the court [JURIST report] to disband the AKP and bar Prime Minister Recep Tayyip Erdogan and President Abdullah Gul [BBC profiles] from political office. The AKP filed a response [IPS report] to the dissolution petition in May, arguing that shutting down the party would leave a political void endangering Turkey's democracy. Opponents of the party said that party officials would likely take revenge on the opposition if not banned, but Erdogan denied the accusations [Hurriyet report], though his party had previously threatened to change the country's constitution [JURIST report] to avoid the challenge.

[JURIST] Germany's Federal Constitutional Court [official website, in German] Wednesday ruled [text, in German; press release, in German] that state laws banning smoking in bars are unconstitutional as they now stand. Smoking in public places is regulated on a state-by-state basis in Germany, and most states allow bars to designate a separate room for smokers. The court found that such laws unconstitutionally discriminate against one-room bars, and that smoking must either be banned in bars entirely or the law rewritten to create exemptions for smaller businesses. AP has more.

In 2006, the federal government of Germany rejected a proposed nationwide ban on smoking in restaurants [JURIST report] out of concern that it would intrude on police powers guaranteed to the states in the wake of federalism reforms [JURIST report] approved [JURIST report] that summer. Under the new constitutional reforms, Germany's 16 states have the power to regulate restaurants and businesses. Elsewhere in Europe, legislatures of England and France [JURIST reports] have approved nationwide smoking bans in public places. In the US, voters in three states approved state-wide smoking bans [JURIST report] in the 2006 November elections, while Rhode Island amended its smoking ban after a state judge struck down [JURIST report] several provisions of the law as irrational and therefore unconstitutional in 2005.

[JURIST] The Court of Bosnia & Herzegovina [official website] Tuesday delivered its first sentences [press release; case backgrounder] of war crimes suspects from Yugoslavia's violent ethnic conflicts of the 1990s, convicting seven of genocide [BiH Criminal Code Article 171, PDF] for their involvement in killings committed at the Srebrenica [JURIST news archive] prison camp. Seven men convicted were given sentences ranging from 38 to 42 years; four others on trial were acquitted of all charges. The court held that the suspects knew the killings they were accomplices to were designed to eliminate Bosnian Muslims from the camp, and also convicted two of the men for killings committed by subordinates. In a press release, the court recounted the incident central to the 2005 indictment [text, PDF; 2008 amendment, PDF] of the men:

The Panel found that several thousand Bosniak men were captured and detained at the Sandi?i meadow in the morning and afternoon of 13 July. These men were part of the column of Bosniak men attempting to break out from the Srebrenica enclave after the capture of the enclave by the forces of the Republika Srpska. Many of these men were induced to surrender by deception, and were told they would be safe and taken to territory under control of ARBiH. At least one thousand of these men were then transported by bus or marched in a column to the warehouse of the Farming Cooperative Kravica, where they were further detained. Beginning in the early evening, shortly after the arrival of the column of men, these prisoners were executed in the warehouse by small arms fire, machine gun fire and the use of hand grenades.

[JURIST] The New York Civil Liberties Union (NYCLU) [advocacy website] has announced that health insurance company BlueCross BlueShield of Western New York [corporate website] has agreed to extend health-care benefits [NYCLU press release] to spouses in validly married same-sex couples. In February, judges for a New York state appeals court unanimously ruled [text, PDF; JURIST report] that the state must legally recognize valid out-of-state same-sex marriages. Following that ruling, the NYCLU filed a lawsuit [NYCLU backgrounder] in early July after the insurance company refused to provide coverage for a woman's same-sex spouse, even though the women had legally married in Canada in 2006. In response to the company's recent decision, NYCLU executive director Donna Lieberman said Monday:

We applaud Blue Cross & Blue Shield of Western New York for following the law and treating all married couples the same. Families who were denied coverage up until this point will now be able to protect themselves with health care coverage.

[JURIST] Officials from the US Department of Justice (DOJ) [official website] have filed a motion [PDF text] with the US Supreme Court [official website] requesting permission to petition for rehearing in Kennedy v. Louisiana [opinion; JURIST report], in which the Court found that a death sentence constitutes cruel and unusual punishment when imposed for a crime of child rape in which the victim was not killed. The majority in the case supported its reasoning by saying that very few states had such laws and that - incorrectly - there were no federal laws allowing the punishment for rape. Shortly afterwards, the DOJ said that it had mistakenly failed to brief the Court [JURIST report] on the existence of a military law [PDF text] allowing capital punishment for child rape. The motion, filed Monday, notes:

While the United States believes that the Court’s decision is incorrect and that the State’s law should be upheld under a proper analysis, even if the Court reaches the same result following rehearing, rehearing is warranted to ensure that a material omission in the decisionmaking process has not tainted the Court’s decision on a matter of such profound constitutional, moral, and practical importance. Accordingly, the United States urges the Court to grant rehearing.

[JURIST] UK House of Lords judges Wednesday denied the appeal [judgment text] of a man accused of hacking US government computers in 2001 and 2002 who had argued [certified points of appeal, PDF] that his extradition to the US would violate his human rights. British police arrested systems analyst Gary McKinnon [BBC profile; advocacy website] in 2002, and US authorities indicted [text, PDF] him later that year on charges of hacking NASA, Department of Defense, Air Force, Army and Navy computers in violation of US computer laws [18 USC 1030 text]. The British government granted the 2005 US extradition request, but McKinnon's lawyer appealed, alleging that US authorities had told McKinnon that if he did not plead guilty to the charges, he could be sentenced to life in prison since each of the seven counts against him is punishable by up to 10 years of imprisonment and a $250,000 fine [indictment press release]. The Law Lords unanimously dismissed the appeal. Lord Brown of Eaton-under-Heywood wrote:

[I]t would only be in a wholly extreme case . . . that the court should properly regard any encouragement to accused persons to surrender for trial and plead guilty, in particular if made by a prosecutor during a regulated process of plea bargaining, as so unconscionable as to constitute an abuse of process justifying the requested state’s refusal to extradite the accused. It is difficult, indeed, to think of anything other than the threat of unlawful action which could fairly be said so to imperil the integrity of the extradition process as to require the accused, notwithstanding his having resisted the undue pressure, to be discharged irrespective of the strength of the case against him.

[JURIST] Council of Europe (COE) Commissioner for Human Rights Thomas Hammarberg [official profile] Tuesday urged Italy to change immigration and preemptive crime policies that he says marginalize the country's Roma and Sinti minorities [JURIST news archive]. Hammarberg memorandum [text; press release] was issued following visit to the country during which he reported harsh conditions in Roma camps and heard accounts of harsh treatment of the groups by police. He said that in addition to the harm caused by the policies themselves, openly anti-Roma governmental statements reinforced popular xenophobic sentiment against the group and immigrants in general:

The hostile environment to non-dominant, vulnerable social groups has recently been fostered by statements of certain national and local political figures as well as by a number of mass media in the country. In meetings with the Commissioner representatives of important NGOs deplored an almost total lack of rejection of xenophobic statements by senior politicians. Representatives of Roma and Sinti felt that such lack of reaction, combined with the “security package”, had further encouraged violence and hate speech against their communities. They expressed a fairly dramatic need for protection.

The Commissioner is seriously concerned about the adoption or preparation by the government of severe legislation which is aimed at ensuring “public security” and imposing a firmer control over immigration, including of EU citizens, and over the presence and movement of Roma and Sinti populations. ... While stronger action against individual criminal offenders may be required, including enhanced international judicial cooperation, the swift adoption of broad packages of the sort currently implemented or considered in Italy entails a clear risk of linking insecurity to specific groups of population and of generating confusion between offenders and foreigners. Such risk should be carefully avoided, if one is not to further feed xenophobic tendencies.

[JURIST] Serbian authorities Wednesday transferred [press release] Bosnian Serb leader and former fugitive Radovan Karadzic [ICTY materials; JURIST news archive] to the custody of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] to face trial on war crimes charges. Karadzic, who has been indicted [text] on charges of genocide, crimes against humanity, and war crimes, was arrested [JURIST report] in Serbia last week after evading capture for nearly 13 years. On Monday one of his lawyers filed an appeal [JURIST report] with a Serb court to block his extradition and transfer, but said he had intentionally delayed the filing in order to postpone a decision until after Tuesday's pro-Karadzic rally [B92 report] in Belgrade. Court officials said, however, that they had not received any appeal.

ICTY prosecutor Serge Brammertz said [statement] Wednesday that Karadzic's arrest and transfer was "important for international justice because it clearly demonstrates that there is no alternative to the arrest of war criminals and that there can be no safe haven for fugitives". He additionally hailed the efforts of Serb officials in finally bringing Karadzic to justice:

Serbian authorities deserve full credit for the apprehension of Radovan Karadži?. This arrest is a major achievement in Serbia’s cooperation with the Tribunal. I make special mention of the National Security Council, Serbia’s Action Team in charge of tracking fugitives and the Office of the War Crimes Prosecutor in Belgrade. I look forward to meeting the authorities in Belgrade in the coming weeks and hope that Serbia’s cooperation will lead to the arrest of the two remaining fugitives, Ratko Mladi? and Goran Hadži?. Without these arrests we cannot complete our mandate