[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in three cases. In NRG Power Marketing v. Maine Public Utilities [oral arguments transcript, PDF; JURIST report], the Court heard arguments on whether the Mobile-Sierra doctrine applies when an entity not party to an interstate electricity contract contests the contract as not being "just and reasonable" as required by Section 206 of the Federal Power Act [text]. Under the Mobile-Sierra doctrine, the Federal Energy Regulatory Commission (FERC) [official website] must presume a wholesale rate contract is "just and reasonable," and that presumption can be overcome only by showing that the contract "seriously harms the public interest." The US Court of Appeals for the DC Circuit held [opinion, PDF] that the Mobile-Sierra doctrine does not apply when challenged by an entity not party to the contract. Counsel for petitioners argued that, "the court of appeals ruling can't be reconciled with Mobile-Sierra's foundation and the need for contractual certainty." Counsel for the FERC argued in support of petitioners. Counsel for the respondents argued against application of the Mobile-Sierra public interest standard.
In Schwab v. Reilly [oral arguments transcript, PDF], the Court heard arguments on whether, under § 522 of the Bankruptcy Code [text], a debtor may keep the full value of property exempted, even after assigning a lesser dollar value, and whether the trustee has to object within 30 days or lose the right to claim the excess value for creditors. The US Court of Appeals for the Third Circuit held [opinion, PDF] that the debtor intended to fully exempt the asset and that the trustee had to object within 30 days. Counsel for the trustee-petitioner argued that the debtor is only entitled to the dollar amount she claimed, not the full value of the asset. Counsel for the US government argued as amicus curiae on behalf of the petitioner. Counsel for the respondent argued that, "[t]here was nothing more that [the respondent] could have done to indicate her intent to exempt the property in full."
In Hemi Group, LLC v. City of New York [oral arguments transcript, PDF; JURIST report], the Court heard arguments on whether city government meets the Racketeer Influenced and Corrupt Organizations Act (RICO) [text] standing requirement that a plaintiff be directly injured in its "business or property" by alleging non-commercial injury resulting from non-payment of taxes by non-litigant third parties. The US Court of Appeals for the Second Circuit ruled [opinion, PDF] that the city of New York has standing to bring a RICO suit against Hemi Group, which operates websites offering cigarettes for sale "tax-free." Counsel for the petitioners argued:
Yet reinstating the one RICO claim was improper because the city does not have standing to sue, based on the injuries that it has alleged. It does not have standing because the city's claim that it lost the sovereign opportunity to tax is not an injury to - to business, and it's not an injury to property.
Counsel for the respondent argued that the city should have standing. Justice Sonia Sotomayor was a member of the three-judge panel on the Second Circuit and has recused herself from the case.
[JURIST] Czech Republic President Vaclav Klaus [official website, in Czech] signed the EU reform treaty, known as the Treaty of Lisbon [EU materials; JURIST news archive] Tuesday after the country's Constitutional Court [official website, in Czech] ruled [judgment, PDF, in Czech] that the treaty does not conflict with the country's constitution. Klaus signed the treaty, despite maintaining his position [press release, in Czech] that the court's decision was political and that the treaty interferes with Czech sovereignty. The Czech Republic is the last EU member state to ratify the treaty. Swedish Prime Minister Fredrik Reinfeldt, representing the Swedish Presidency of the EU [official website], welcomed [press release] Klaus's signing:
I am very pleased that president Klaus today has signed the Lisbon Treaty. His signature ends a far too long period of institutional focus within the EU. It opens up for a more democratic, transparent and efficent [sic] Union.
The treaty is set to go into effect on December 1.
Klaus had been reluctant to ratify the treaty due to concerns over property claims of ethnic Germans expelled from Czechoslovakia during WWII. However, a breakthrough in negotiations came last week when EU leaders reached an agreement on an opt-out clause [JURIST report] for the Czech Republic. The Czech Republic's Chamber of Deputies [official website] approved [JURIST report] the treaty in February, and the Senate of the Parliament of the Czech Republic [official website] voted to approve [JURIST report] the treaty in March. Efforts to ratify the treaty [JURIST news archive] in all 27 EU member states, as required for approval, had faced opposition. Poland and Ireland [JURIST reports] approved the treaty earlier in the month, but only after certain guarantees were made by the EU. Germany ratified [JURIST report] the treaty in September.
[JURIST] Justice Jon Kamanda [official profile] was elected [press release, PDF] on Monday to a one-year term as the president of the Special Court for Sierra Leone (SCSL) [official website; JURIST news archive]. Kamanda had served as a SCSL vice-president since 2007. Prior to his involvement with the SCSL, Kamanda enjoyed an extensive legal career [UPI report], including time in the Sierra Leone government as the Deputy Minister of Mineral Resources and Minister of Health. Kamanda succeeds [UN press release] Justice Renate Winter, who had served as the president of the SCSL since last May. Justice Emmanuel Ayoola of Nigeria will replace Kamana as Vice-President.
The election of Kamana is mostly a symbolic gesture, as the only remaining indictee of the SCSL is former Liberian president Charles Taylor [case materials; JURIST news archive]. Taylor's trail began in Sierra Leone, but was moved to the International Criminal Court (ICC) [official website] for security reasons, where he has denied war crimes allegations [JURIST reports]. Last week, eight men found guilty of war crimes by the SCSL were transferred [JURIST report] to Rwanda after it was determined that Sierra Leone did not have adequate prison facilities. Three of the men had their appeals rejected [JURIST report] last month by the SCSL.
[JURIST] Former Argentine president and general Reynaldo Bignone went on trial [press release, in Spanish] Monday for crimes against humanity allegedly perpetrated during Argentina's 1976-83 "Dirty War" [GlobalSecurity backgrounder; JURIST news archive]. The allegations, which include illegal arrest, torture, and killing of dissidents, stem from the 56 confirmed cases of torture at the Campo de Mayo military base outside Buenos Aires. An Argentinian judge ordered Bignone's arrest and ruled that he would face criminal charges [JURIST reports] in March 2007. Bignone, 81, is being tried along with five other Argentine generals, including Santiago Omar Riveros, who was convicted of human rights abuses [JURIST report] in August and sentenced to life in prison for killing 15-year-old Floreal Avellaneda and detaining his mother during the dictatorship. Witness testimony is set to begin November 10, and the trial is expected to last until March 2010.
Last month, an Argentinian court sentenced [JURIST report] retired general Jorge Olivera Rovere and retired colonel Jose Menendez to life in prison for crimes committed during the "Dirty War." Last year, a court convicted [JURIST report] former general Luciano Benjamin Mendendez and another former general and sentenced them to life terms for kidnapping, torturing, and murdering Peronist politician Guillermo Vargas Aignasse in 1976 during the coup. Also in 2008, an Argentine court sentenced [JURIST report] Luciano Benjamin Menendez and four others to life in prison for the 1977 kidnapping, torture, and killing of four political dissidents during the "Dirty War." In 2005, Argentina's Supreme Court struck down amnesty laws [JURIST report] adopted in the 1980s to deter military insurrection against the democratic government, prompting the government to reopen hundreds of human rights cases. During the "Dirty War," spanning between 1976 and 1983, an estimated 20,000 to 30,000 people were forcibly kidnapped or "disappeared" in a government-sponsored campaign against suspected dissidents.
The challenges to the patents-in-suit raise questions of difficult legal dimensions concerning constitutional protections over the information that serves as our genetic identities and the need to adopt policies that promote scientific innovation in biomedical research. The widespread use of gene sequence information as the foundation for biomedical research means that resolution of these issues will have far-reaching implications, not only for gene-based health care and the health of millions of women facing the specter of breast cancer, but also for the future course of biomedical research.
ACLU staff attorney Chris Hansen said, "[w]e hope this challenge is the beginning of the end to patents on genes, which limit scientific research, learning and the free flow of information."
Genetic research companies currently hold patents to approximately 20 percent of all human genes. Many of the patented genes are associated with diseases such as Alzheimer's and cancer. The holder of a gene patent can prevent others from studying the gene.
This trial chamber and the appeals chamber have carefully considered these submissions, and determined that you have had adequate preparation time. Clearly you disagree with these decisions. However, as I previously stated to you, it is the trial chamber, not an accused person, which determines readiness for trial, taking into account all the relevant circumstances, and ensuring that the trial is conducted fairly and expeditiously.
Kwon has scheduled a hearing to consider options for how to proceed [AP report] with the trial should the boycott continue, including potentially assigning defense counsel to Karadzic, who has represented himself to this point. The ICTY canceled [court schedule] proceedings set for Wednesday.
The ICTY began Karadzics trial in absentia last week after proceedings were temporarily adjourned when he failed to appear [JURIST reports] on Monday. Karadzic announced earlier that he planned to boycott [JURIST report] his trial because he had not been given adequate time to prepare a defense. He faces 11 charges [amended indictment, PDF], including genocide and murder, for war crimes committed during the 1992-1995 Bosnian genocide [PPU backgrounder]. In June, the ICTY said that Karadzic's trial was expected to conclude in early 2012 [JURIST report]. His trial is planned to be the tribunal's last.
[JURIST] Fijian Chief Justice Anthony Gates issued a statement [text] on Sunday criticizing the Australian and New Zealand governments for placing travel restrictions on Fijian officials including the judiciary. The controversy began [New Zealand Herald report] last month when a Fijian judge was granted an expedited visa from the New Zealand High Commission in Fiji [official website] for a child that required international medical assistance. Gates believes that the inclusion of the judiciary in such travel restrictions is a mistake. He said:
Those policies have been formulated in response to the military take-over in Fiji of December 2006 and the abrogation of the Constitution of April 2009. One of those policies of action adopted by Australia and New Zealand is to impose travel bans on a list of persons which have included the military, Government ministers, senior civil servants, Directors of statutory bodies, and Judges and Magistrates.
Gates went on to point out that judges and magistrates are not appointed by the interim government, but rather by the president of Fiji. Both the Australian and New Zealand High Commissions have denied [FBC report] refusing visas to members of the Fijian judiciary. The Fijian government backed the chief justice's statements by expelling [FBC report] the Australian and New Zealand High Commissioners from Fiji.
The international community has been at odds with the Fijian government since the December 2006 military coup [JURIST report]. In September, the Commonwealth of Nations [official website] suspended Fiji [JURIST report] after the country failed to meet the September deadline for reinstating a constitutional democracy and opening a national dialogue. Australian Foreign Minister Stephen Smith [official profile] criticized [text] the current regime for human rights abuses, including, among other things, the independence of the judiciary. In August, Gates announced that Fiji was seeking foreign judges to replace judicial officers whose appointments were revoked after an April suspension [JURIST reports] of the country's constitution. The suspension came after the Court of Appeal of Fiji ruled [JURIST report] that the country's appointment of a military government following the coup was unconstitutional and must be immediately replaced.
[JURIST] Judges of the Supreme Court of India [official website] on Monday voluntarily made public disclosures of their financial assets [list]. The assets of 21 of the current judges have been posted on the official court website in an effort to increase judicial transparency. This voluntary listing of assets comes after months of harsh criticisms from the legal community and the public concerning judicial accountability. While the move has been lauded as a step in the right direction, Transparency International [advocacy website] has questioned the benefit of disclosure when there is no way to confirm that it is entirely accurate, given the announcement that the judges will not entertain any queries or scrutiny [CJAR press release, PDF] of assets listed. The decision [JURIST report] to go public with the listing of assets was based on a consensus among the judges as there is no current law that requires them to do so.
A number of nations around the world have laws requiring public officials to disclose their assets. In India, the All India Services Rules [text, PDF], passed in 1968, require only that officials submit an inventory of their assets, not that it be made public. In 2003, Kenya passed the Public Officer Ethics Act [text, PDF], mandating a yearly disclosure of assets. Brazilian law 8249 [text, in Portuguese], passed in 1992, mandates a similar disclosure, with a penalty of removal from office for failing to do so. In the US, the Ethics in Government Act of 1978 [text] says that failure to disclose will not result in termination, but could result in a civil suit.
[JURIST] Judge Eloy Velasco of the Spanish National Court [official website, in Spanish] on Monday indicted seven people for their alleged involvement in helping the suspected perpetrators of the 2004 Madrid train bombings [BBC backgrounder; JURIST news archive] flee Spain after the attacks. Six of the seven have been charged [El Pais report, in Spanish] with belonging to a terrorist organization and the seventh person has been charged with collaboration. Altogether they are accused of providing money, housing, food, and forged documentation to the suspected perpetrators. The nationalities of the seven indicted include four Moroccans, an Algerian, and a Tunisian, and the nationality of the seventh is unknown. One of the indicted, a Moroccan is already in Spanish custody, four are on provisional release, and the whereabouts of the remaining two are unknown. If convicted, the six charged with belonging to a terrorist organization can face up to 12 years and the collaborator up to 10 years in prison. The men are required to be in court later this month.
In all, 28 co-defendants [BBC profiles] were charged in Spain with 192 counts of murder and upwards of 1,800 counts of attempted murder related to the March 11, 2004 bombings, which killed 191 people and injured almost 2,000 more. Three defendants were convicted of murder [JURIST report] and 18 others were found guilty of lesser charges. Last year, Spain's highest court of appeal said that 25 appeals had been filed [JURIST report] against verdicts handed down against convicted participants for the bombings, both from defendants and from victims. The defendants have all protested their innocence and condemned the attacks.
if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.
The Second Circuit agreed to rehear Arar's case en banc after a three-judge panel initially dismissed his appeal [JURIST reprot] in July 2008. The court heard arguments [JURIST report] last December. Arar was detained by the US in September 2002 after flying to New York from Tunisia on his way home to Canada. The US government deported him to Syria in 2002, where he was tortured despite Syrian assurances that he would not be. US lawmakers apologized [JURIST report] in 2007 for his arrest, deportation and, torture at the hands of Syrian officials.
[JURIST] The US Court of Appeals for the Third Circuit [official website] has struck down [opinion, PDF; press release] a City of Pittsburgh [official website] ordinance [text, PDF] that created a layered zone structure to prevent protesters from gathering outside abortion facilities. The ordinance created a "buffer zone," preventing protesters from coming within 15 feet of the entrance of a medical facility, and also a "bubble zone," which prevented protesters from coming closer than eight feet to individuals within a 100 foot radius around a facility. In ruling Friday that the ordinance is unconstitutional, the court held that either of the zones created by the ordinance would be proper by themselves, but in combination they were not sufficiently narrowly tailored:
Leafletting, a "classic form of speech that lies at the heart of the First Amendment," is especially hard hit by the bubble zone's enforcement of a space of separation. Although the buffer zone, standing alone, would require leafletters to remain beyond arm's reach of a medical facilities' entrances, they would still be able to approach individuals outside of the fifteen-foot radius in order to distribute their literature. With the additional restrictions of the bubble zone, on the other hand, not only are leafletters forbidden from distributing literature within the buffer zone, but they may not approach within eight feet of oncoming pedestrians absent their consent anywhere within one hundred feet of health care facility entrances. ... In our view, the combination of the two zones burdens substantially more speech than appears necessary, on this record, to achieve the government's interests.
The ruling was the result of a lawsuit [fact sheet, PDF] brought in 2006 by the Alliance Defense Fund (ADF) [advocacy website] on behalf of Mary Kathryn Brown, a registered nurse who works in Pittsburgh and has sought to dissuade woman from undergoing abortions for more than 15 years. Brown had challenged the ordinance, saying it violated the free speech and other protections of the Pennsylvania and US Constitutions [text] because it prevented her from passing out information about the dangers of and alternatives to abortions.
First Amendment protections for abortion protesters has been a highly contentious issue. In July, the US Court of Appeals for the First Circuit upheld [JURIST report] a Massachusetts law [text] prohibiting people from protesting directly outside of abortion clinics. The court ruled that the law, which created a 35-foot buffer zone around entrances and exits of reproductive health clinics, was a reasonable response to a significant threat to public safety. Last year, the US Court of Appeals for the Ninth Circuit ruled [JURIST report] that the First Amendment protected an anti-abortion group's right to display graphic pictures of early-term aborted fetuses outside of a California middle school.
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