[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in two cases. In Dillon v. United States [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether the federal sentencing guidelines [materials] are binding when a federal judge imposes a new sentence. Under the Supreme Court's 2005 ruling in United States v. Booker [opinion text], the guidelines are advisory only, but the court has never ruled on Booker's application to a sentence modification proceeding. The US Court of Appeals for the Third Circuit held [opinion, PDF] that Booker should not apply in sentence modification proceedings, upholding Percy Dillon's modified sentence. Counsel for the petitioner, Dillon, argued:

Sentencing commission policy cannot override this Court's clear and unambiguous directive to courts to treat the guidelines as advisory in all cases moving forward, and any interpretation of section 3582(c) that permits the commission to mandate sentences must be rejected, not only as matter of statutory stare decisis, but because it would violate the Sixth Amendment.

The provisions of the Sentencing Reform Act at issue in this case, unlike the provisions that were at issue in Booker, do not govern the imposition of sentence. They instead provide a discretionary mechanism for the exercise of leniency for defendants who have already been sentenced.

[JURIST] The French Council of State [official website, in French] on Tuesday advised the French government [report, PDF; in French] that a complete ban on full Islamic veils risks violating the French Constitution [text] and the European Convention on Human Rights [text]. The government requested that the council, the country's highest administrative court, review the proposed ban before drawing up legislation. The government has already banned public officials from wearing veils while operating in their official capacity, and also prohibits veils in public schools. The council held that even with the existence of these partial bans, which are based on France's secular principles, it could find no legal basis for a complete ban on veils in public places. The council held that there could be a legal foundation for the ban in situations that require public security and protections against fraud. This includes access to high security areas, the performance of official proceedings such as marriage and voting, and when acquiring identification materials. French President Nicolas Sarkozy [official website, in French] has been a strong proponent of the full veil ban and stated that legislation may go forward [BBC report] despite the Council's warnings.

The Council of State's review comes weeks after a French parliamentary commission charged with investigating whether to enact laws banning the wearing of burqas [JURIST news archive] or other full veils released its report [text, PDF; in French] calling for a partial ban [JURIST report] that would apply in public facilities, including hospitals, schools, and public transportation, and to any individual attempting to receive public services. While many people in France approve of the proposed legislation [CNN report], such measures have also faced opposition [JURIST comment] from critics who say such a law would alienate France's Muslim minority and violate the International Covenant on Civil and Political Rights (ICCPR) [text], of which France is a signatory.

[JURIST] The Supreme Court of Pakistan [official website] on Tuesday threatened to imprison the head of the country's corruption agency for failing to meet a 24-hour deadline to reopen several corruption cases. Chief Justice Iftikhar Mohammad Chaudhry [official profile; JURIST news archive] gave National Accountability Bureau (NAB) [official website] Chairman Naveed Ahsan and acting Chairman Irfan Nadeem another day to reopen the cases [AP report], including several against President Asif Ali Zardari [official website]. Ahsan pledged in writing that the cases would be reopened. The court's order displays the continuing tension between Pakistan's government and judiciary. In response to the court's orders, police detained [Reuters report] Director General of the Federal Investigation Agency Ahmed Riaz Sheikh [official website], who was convicted of corruption eight years ago. Sheikh's prison sentence was waived in 2002, and he was subsequently promoted within the agency, after former Pakistani president Pervez Musharraf [BBC profile; JURIST news archive] issued amnesty in 2007.

Tuesday's arrest is the first since the Supreme Court struck down [JURIST report] the National Reconciliation Ordinance (NRO) [text], which granted immunity to Zardari and 8,000 other government officials from charges of corruption, embezzlement, money laundering, murder, and terrorism between January 1986 and October 1999. In December, a Pakistani court issued an arrest warrant [JURIST report] for Interior Minister Rehman Malik [official profile] on corruption charges. Malik is among 19 officials whose corruption cases the NAB has petitioned to reopen [PTI report] in an anti-corruption court in Rawalpindi. The NAB has also petitioned a Lahore court to reopen the cases of 32 individuals, including that of Defense Minister Chaudhry Ahmed Mukhtar [official profile]. The NRO was signed [JURIST report] by Musharraf as part of a power-sharing accord allowing former Pakistani prime minister Benazir Bhutto [BBC profile] to return to the country despite corruption charges [JURIST report] she had faced.

[JURIST] The Paris Appellate Court [official website, in French] on Tuesday upheld a lower court's 2008 decision finding French oil company Total [corporate website] and several other defendants criminally liable for an oil spill that occurred of the coast of Brittany in 1999. The court also increased the fine [LeMonde report, in French] against the defendants from 192 million euros to 200 million euros. Over 20,000 tons of oil [Euronews report] seeped from an oil tanker called Erika, which Total chartered from an Italian company, decimating 400 kilometers of coastline and causing harm to wildlife. Total said that it plans to review the judgment [press release] before deciding whether to appeal.

Total is not the first oil company to be subject to stiff penalties as a result of an oil spill. In June 2009, the US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] that Exxon Mobil [corporate website] owes interest on the more than $500 million in punitive damages [JURIST report] awarded against it following the 1989 Exxon Valdez oil spill [EPA backgrounder; JURIST news archive]. According to statistics [text] on major oil spills published by the non-profit International Tanker Owners Pollution Federation [official website], the Total oil spill off the cost of Brittany was the fourth largest oil spill since 1967, while the Exxon Valdez spill is ranked 35.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] 7-2 in Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson [Cornell LII backgrounder; JURIST report] that whistle-blowers cannot bring suit under the False Claims Act [text] to recover misspent government funds if the information used in the lawsuits came from state or local agencies' reports or audits. The suit arose out of public record documents that detailed a failure to obtain bids for the clean-up and reconstruction of storm-damaged portions of North Carolina. The petitioners claimed that the US Court of Appeals for the Fourth Circuit erred in concluding [opinion, PDF] that a state audit does not constitute an administrative report, audit, or investigation under the Act. In reversing the decision below, Justice John Paul Stevens wrote:

Since its enactment during the Civil War, the False Claims Act has authorized both the Attorney General and private qui tam relators to recover from persons who make false or fraudulent claims for payment to the United States. The Act now contains a provision barring qui tam actions based upon the public disclosure of allegations or transactions in certain specified sources. The question before us is whether the reference to "administrative" reports, audits, and investigations in that provision encompasses disclosures made in state and local sources as well as federal sources. We hold that it does.

[JURIST] Russian President Dmitry Medvedev [official website, in Russian; JURIST news archive] on Tuesday proposed [statement, in Russian] amending the country's terrorism legislation in the wake of Monday's twin suicide bombing attacks [Moscow Times report] on Moscow subway stations. In televised remarks, Medvedev said:

We need to focus on improving legislation aimed at preventing acts of terrorism, on the work of various departments charged with investigating such crimes, and on other procedures related to transportation security and safety of people in crowded places. I think we have reason to revisit issues related to the proper administration of justice under terrorist legislation – under the ‘terrorism’ law and related crimes articles - and to talk about the need to improve such practices.

[JURIST] The High Court of Australia [official website] on Tuesday ordered that alleged Serbian war criminal Dragan Vasiljkovic [Trial Watch backgrounder; JURIST news archive] be extradited to Croatia to face prosecution. Vasiljkovic, an Australian citizen also known as Daniel Snedden, is accused of war crimes occurring during the 1991-1995 Croatian war of independence [GlobalSecurity backgrounder]. The high court's decision overturns a September ruling by the Federal Court of Australia [official website], which held [judgment text; JURIST report] that Vasiljkovic should not be extradited due to the risk that his political beliefs would subject him to prejudice if he were returned to Croatia.

The High Court's decision comes after a prolonged judicial debate over whether Vasiljkovic should be returned to Croatia to stand trial. In 2007, an Australian court ordered [JURIST report] that Vasiljkovic be handed over to Croatian authorities. Subsequent appeals resulted in conflicting federal court judgments and ultimately led to Tuesday's high court decision. Vasiljkovic was arrested in Australia in 2006 pursuant to an extradition request [JURIST reports] from the Croatian government.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] unanimously in Berghuis v. Smith [Cornell LII backgrounder; JURIST report] that a defendant's Sixth Amendment [text] right to a jury drawn from a fair cross-section of the community was not violated when the African-American representation on the jury was disproportionate to the community population. The US Court of Appeals for the Sixth Circuit applied the comparative-disparity test, which calculates the percentage of otherwise eligible jurors from a given group who are excluded from jury service, and held [opinion, PDF] that the defendant's right was violated. In reversing the decision below, the court declined to adopt an explicit standard. Justice Ruth Bader Ginsburg wrote:

Each test is imperfect. Absolute disparity and comparative disparity measurements, courts have recognized, can be misleading when, as here, "members of the distinctive group comp[ose] [only] a small percentage of those eligible for jury service." And to our knowledge, "[n]o court ... has accepted [a standard deviation analysis] alone as determinative in Sixth Amendment challenges to jury selection systems."

[JURIST] An Illinois Cook County Circuit Court [official website] judge ruled [opinion, PDF] Monday that the Parental Notice of Abortion Act of 1995 [text] is constitutional. While lifting the temporary restraining order on the law's enforcement, Judge Daniel Riley approved a 60-day grace period, preventing state officials from enforcing the law pending appeal procedures. The American Civil Liberties Union of Illinois (ACLU-IL) [advocacy website] brought suit last year arguing that the law violates privacy, due process, equal protection, and gender equality guaranteed by the Illinois Constitution [text]. Responding to the judgment [press release], ACLU-IL Executive Director Colleen Connell said:

In the wake of today's ruling, we are reviewing our legal options, including an appeal of the Judge's decision. We note that the Judge was careful and blunt in describing the Illinois law as "unfortunate," and in noting that enforcement of the Act will result in horrible outcomes for some young women, including "physical and emotional abuse." However, the Judge ruled in favor of the State because he did not believe that the law would be harmful in every incident where a pregnant minor was compelled to notify a parent of her decision to terminate a pregnancy. We will move swiftly to take all necessary action so that the real threat of abuse so clearly identified by the Judge can be avoided.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] unanimously in Jones v. Harris Associates [Cornell LII backgrounder; JURIST report] that a shareholder does not have to show that a fund's investment adviser misled the fund's directors in order to have a cognizable claim of an excessive fee under § 36(b) of the Investment Company Act of 1940 [text]. The US Court of Appeals for the Seventh Circuit held [opinion, PDF] that the claim is not cognizable unless the shareholder can show that the adviser misled the fund's directors who approved the fee. In vacating the decision below, the court adopted the Gartenberg standard, which provides that "to face liability under § 36(b), an investment adviser must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm's length bargaining. Justice Samuel Alito wrote:

By focusing almost entirely on the element of disclosure, the Seventh Circuit panel erred. The Gartenberg standard, which the panel rejected, may lack sharp analytical clarity, but we believe that it accurately reflects the compromise that is embodied in § 36(b), and it has provided a workable standard for nearly three decades. The debate between the Seventh Circuit panel and the dissent from the denial of rehearing regarding today's mutual fund market is a matter for Congress, not the courts.

[JURIST] The number of countries using the death penalty [JURIST news archive] continued to drop during 2009, according to an annual report [text, PDF] published Monday by Amnesty International (AI) [advocacy website]. According to the report, more than 700 people were executed last year in 18 countries, with the most executions carried out in Iran, Iraq, Saudi Arabia, and the US. Regionally, the majority of executions occurred in Asia, the Middle East, and North Africa, while the US was the only country in the Americas to execute prisoners last year. AI's figures exclude the estimated thousands of executions conducted in China [press release], where the government refuses to release death penalty statistics. AI challenged China and other nations to disclose information about executions and condemned all forms of capital punishment:

Amnesty International believes that the death penalty legitimizes an irreversible act of violence by the state. Research demonstrates that the death penalty is often applied in a discriminatory manner, being used disproportionately against the poor, minorities and members of racial, ethnic and religious communities. The death penalty is often imposed after a grossly unfair trial. But even when trials respect international standards of fairness, the risk of executing the innocent can never be fully eliminated - the death penalty will inevitably claim innocent victims, as has been persistently demonstrated.

[JURIST] A judge for the US District Court for the Southern District of New York [official website] ruled [opinion, PDF] Monday that patents held on two genes linked to hereditary ovarian and breast cancer are invalid. The ruling was in response to a suit filed [JURIST report] by the American Civil Liberties Union (ACLU) and the Public Patent Foundation (PUBPAT) [advocacy websites] on behalf of patients and scientists challenging patents held by Myriad Genetics [corporate website] on the BCRA genes [NCI backgrounder]. Judge Robert Sweet held that, "[b]ecause the claimed isolated DNA is not markedly different from native DNA as it exists in nature, it constitutes unpatentable subject matter." The complaint also alleged that the patents were unconstitutional under the First Amendment, Fourteenth Amendment, and Article I [text] of the Constitution, but the court did not address the constitutionality of the patents because the case could be decided under patent law. ACLU staff attorney Chris Hansen hailed the ruling [press release] as a "victory for the free flow of ideas in scientific research," stating:

The human genome, like the structure of blood, air or water, was discovered, not created. There is an endless amount of information on genes that begs for further discovery, and gene patents put up unacceptable barriers to the free exchange of ideas.

[JURIST] The Hague Appeals Court [official website, in Dutch] on Tuesday upheld [judgment, in Dutch; press release] the UN's immunity from prosecution by rejecting claims brought by relatives of victims of the Srebrenica massacre [BBC timeline; JURIST news archive] during the 1992-1995 Bosnian conflict. The relatives, known as the Mothers of Srebrenica, alleged that the Netherlands should be liable for the deaths because Dutch soldiers operating under the UN flag negligently failed to protect civilians by forcing the victims out of a UN-designated "safe area" [resolution materials] and turning them over to Bosnian Serbs, resulting in the death of 8,000 Muslim men and boys. The court found that immunity is essential to the UN's ability to carry out its duties, and that the Dutch acting as UN peacekeepers could not be held responsible [RNW report]. The decision upheld the district court's 2008 decision to dismiss the claims [JURIST report]. The Mothers of Srebrenica have vowed to appeal the case to the Netherlands Supreme Court and the European Court of Justice if necessary.

Earlier this month, former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive], charged with committing war crimes during the Bosnian conflict, appeared [JURIST report] before the International Criminal Tribunal for the former Yugoslavia [official website] to make his opening statements. Karadzic began by denying any plan to expel Muslims from Serbia, and blaming Muslims and Western countries for triggering the civil war. Karadzic also accused [JURIST report] Bosnians of planting corpses and embellishing reports about fatalities, calling the Srebrenica massacre a farce [Guardian report] promulgated by Bosnian Muslims to incite hatred against Serbian forces. Karadzic is defending himself against 11 counts [amended indictment, PDF] including genocide and murder, and he faces life in prison if convicted.

[JURIST] German Chancellor Angela Merkel [official profile] on Monday maintained that Turkey should become a European Union (EU) "preferred partner" rather than continue as a candidate [EU materials] country for EU accession. Turkey has only opened 12 of the 35 chapters toward accession to the EU [criteria materials], and continues to face diplomatic challenges that compromise its bid towards accession. In particular, Turkey has yet to resolve its relation to Cyprus, and Merkel urged [N-TV report, in German] Turkish Prime Minister Recep Tayyip Erdogan [official profile, in Turkish] to open Turkey's ports to vessels from Cyprus and take steps towards a conciliatory solution to the impasse on the island. Merkel also exhorted Turkey to agree [Hurriyet report] to increase sanctions for Iranian nuclear development and toned down prior discussions on teaching Turkish in the German school system. On Friday, after talks with EU officials in Brussels, the Turkish chief negotiator for Turkish accession to the EU, Egemen Bagis, rejected [SETimes report] the German proposal for a "preferred partnership."

Germany is the country with the largest community of Turkish emigres, with an estimated 2.5 million, and Turkey is one of its largest trading partners. Germany is also one of the staunchest opponents among EU members to Turkish EU membership. Turkey has faced several obstacles as it works toward accession. Turkish human rights and foreign relations are reportedly compromising the country's efforts toward EU accession, receiving mixed reviews [press release; JURIST report] in October in the European Commission's annual reports on enlargement strategy and candidate progress [reports, PDF]. Last May, an EU advisory council said that Turkey should do more [JURIST report] in terms of judicial reform, protection of citizens' rights, and various other efforts in order to further its request for accession.