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Legal news from Thursday, June 3, 2010 |
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Nigeria Senate passes constitutional revisions of presidential succession law
Dwyer Arce on June 3, 2010 2:33 PM ET

[JURIST] The Nigerian Senate [official website] on Wednesday voted 85-0 to pass revisions [text] to the Nigerian Constitution [text] that would clarify the exercise of executive authority in the absence of the president. The constitutional revisions would require the president to inform the National Assembly [official website] in writing of any absence from office within 21 days, during which time the vice president would become acting president until the president returns. Under the revisions, if the president does not inform the National Assembly of an absence within 21 days, the assembly can vote to allow the vice president to take over as acting president. The constitutional revisions would also change federal election law. It would remove a provision of the constitution that disallowed people who had been charged with fraud from standing for election, and would require candidates for federal office to have a degree beyond secondary education. Additionally, it would require that election complaints be filed within 21 days of the release of the official results. The revisions have been approved by the House of Representatives [official website] and now must be approved by 24 of the 36 state legislatures before taking effect. Senate President David Mark [official profile] has said that he will be meeting with the leaders of the state legislatures [Nigeria Independent report] in order to expedite the ratification of the constitutional revisions.
Last month, Nigerian President Umaru Yar'Adua [BBC obituary] died after suffering from a prolonged illness. His death formally transferred the presidency to then vice president Goodluck Jonathan [BBC profile], who had been acting president since February [JURIST report] when the parliament voted for him to take over. In January, a Nigerian court ruled that Yar'Adua was not required [JURIST report] to formally transfer his powers to Jonathan or any other interim leader. Also in January, the court ordered [JURIST report] Nigeria's cabinet to pass a resolution within 14 days on whether Yar'Adua was capable of running the country. Yar'Adua traveled to Saudi Arabia in November for medical treatment without naming an interim leader, touching off a constitutional crisis.


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US study finds widespread racial discrimination in jury selection in South
Hillary Stemple on June 3, 2010 1:47 PM ET

[JURIST] A report [text, PDF] released Tuesday by the Equal Justice Initiative (EJI) [advocacy website] details continued widespread racial discrimination in jury selection in Southern states. EJI conducted research in eight southern states over a two-year period and found that the practice of striking members from a jury based on race remains common, particularly in serious criminal cases and death penalty cases. The report details reasons given by prosecutors for the dismissal of African Americans from juries including "because they appeared to have 'low intelligence,' wore eyeglasses, walked in a certain way, and dyed their hair." EJI called the reasons given for dismissal "pretextual" and blamed the courts for "rubber-stamping" the reasons as race-neutral. The report also presents evidence that some district attorney's offices explicitly train prosecutors to exclude people from juries based on race and teach them how to present the reason for exclusion in an unbiased manner. EJI's Executive Director Bryan Stevenson commented on the report stating [press release]:The underrepresenation and exclusion of people of color from juries has seriously undermined the credibility and reliability of the criminal justice system, and there is an urgent need to end this practice. While courts sometimes have attempted to remedy the problem of discriminatory jury selection, in too many cases today we continue to see indifference to racial bias. The report also offered recommendations to remedy the problem, including enforcement of existing anti-discrimination laws and subjecting prosecutors who routinely exclude potential jurors based on race to fines, suspensions and other consequences. It also called on states to strengthen procedures to ensure racial minorities are fully represented in jury pools.
The US Supreme Court [official website; JURIST news archive] tried to limit the practice of racial discrimination in jury selection in the 1986 case of Batson v. Kentucky [opinion text]. Baston held that a defendant has no right to a jury composed of members of his own race, but also held that the Equal Protection Clause of the Fourteenth Amendment [text] guarantees a defendant that potential jurors will not be excluded from jury service based on race.


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Zimbabwe rights activist arrested over conflict diamond information
Sarah Miley on June 3, 2010 1:42 PM ET

[JURIST] Zimbabwean human rights activist Farai Maguwu was arrested Thursday for allegedly supplying false information about Zimbabwe's controversial diamond mining practices to the international diamond control body the Kimberley Process (KP) [advocacy website]. Maguwu, head of a prominent non-governmental organization (NGO) monitoring the diamond fields, had been in hiding for several days since his office and residence were raided by police, but he decided to turn himself in after police confiscated his personal belongings and harassed his family to discover his whereabouts. An investigation was launched against Maguwu after he allegedly leaked to the KP a document compiled by the police [SW Radio Africa report] for the Joint Operations Command (JOC), a military-run security agency that was thought to be defunct. The report allegedly confirms allegations recently made by human rights organizations that Zimbabwe is continuing to engage in illegal diamond mining with the use of military force and leads NGOs to believe that the JOC is being subversively employed by the government. Civil society groups such as Global Witness, Partnership Africa Canada, and Maguwu's organization, have called for the suspension of Zimbabwe's international diamond trade due to the human rights violations [Telegraph report] allegedly committed by the Zimbabwean army against civilians and illegal workers in the Marange diamond fields. KP holds an annual meeting [JURIST report] to discuss these issues with human rights groups in an effort to curtail trade in conflict diamonds, or rough diamonds used by insurgencies to finance their movements.
During the summer of 2009, KP appointed a team to conduct a Review Mission [press release, PDF] in Zimbabwe. They suggested that Zimbabwe's membership to the organization be revoked [Times Live, report] for at least six months while the KP could ascertain that minimum standards were being met. The KP then sent its chairperson to Zimbabwe for informative purposes. Despite the allegations, Zimbabwe's deputy minister of Mines and Mining Development of Zimbabwe, in an address delivered at the KP Intercessional Meeting [press release, PDF] earlier this year, emphasized Zimbabwe's dedication to the principles and effective implementation of the KPCS. Illicit trade in rough diamonds has been closely linked to armed conflict [UN backgrounder] in Angola, Cote d'Ivoire, the Democratic Republic of Congo, and Sierra Leone. Since its inception in 2003, the KP has operated [backgrounder] by endeavoring to require its members to follow the regulations set forth by the KPSC, and in turn certifies their shipments of rough diamonds as "conflict-free."


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Rwanda officials claim detained US lawyer attempted suicide
Dwyer Arce on June 3, 2010 12:08 PM ET

[JURIST] US lawyer and JURIST Forum [website] contributor Peter Erlinder [professional profile; JURIST news archive] on Wednesday attempted to commit suicide while being held in a Rwandan prison on charges of genocide denial, according to police. Erlinder was reportedly found semiconscious [New Times report] in his cell Wednesday morning as police attempted to summon him for further questioning. According to Dr. Daniel Nyamaswa, the Director of the National Police Hospital at Kacyiru [official website] where Erlinder was initially hospitalized, Erlinder took up to 50 pills of prescription medications intended to treat depression and high blood pressure. In a message sent from Erlinder to his family, he explained that he took the overdose in order to be transferred to a hospital to escape the poor conditions of his holding cell [AP report], which he shares with several others. According to police officials, Erlinder confirmed that the overdose was a suicide attempt made because of the sentence he could face if convicted of genocide denial, which could be as long as 25 years, effectively a life sentence for the 62-year-old lawyer. Authorities have stated that they will wait until he has recovered [allAfrica report] before deciding if they will charge him with attempted suicide, a criminal offense in Rwanda. Erlinder has stated his willingness to retract his statements and never return to Rwanda, medical personnel treating him have reported. The faculty at William Mitchell College of Law [academic website], where he is a professor, have disputed the claim [AFP report] that Erlinder attempted suicide, stating that he would never have taken such an action.
Rwandan police on Friday arrested Erlinder [JURIST report] in Kigali on charges that he denied the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. Erlinder, a defense lawyer at the International Criminal Tribunal for Rwanda (ICTR) and president of the ICTR's Association of Defense Lawyers [official websites] (ADAD), was in Rwanda to prepare his defense of opposition presidential candidate Victoire Ingabire Umuhoza [campaign website], who was arrested [JURIST report] last month on similar charges. International groups including the National Lawyers Guild, the International Criminal Defence Attorneys Association, and the National Association of Criminal Defense Lawyers [advocacy websites] have called for Erlinder's release [press release], saying that the charges are politically motivated [AP report]. The William Mitchell College of Law has expressed concern for his safety [press release], saying they "support his commitment to justice, the rule of law, and public service." Rwandan Public Prosecutor Martin Ngoga said that Erlinder had become an organizer of genocide deniers [AFP report] and that Erlinder had traveled to Rwanda with full knowledge that denial of the genocide is illegal there.


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EU court upholds Dutch gambling restrictions
Sarah Miley on June 3, 2010 11:02 AM ET

[JURIST] The EU Court of Justice (ECJ) [official website] issued two judgments on Thursday against UK betting companies Ladbrokes International and Betfair [judgments], upholding Dutch restrictions on Internet gambling. The Netherlands Supreme Court [official website] sought guidance from the ECJ to determine whether the Dutch licensing system was compatible with EU law on service provisions and games of chance [Article 49-EC text, PDF]. The gambling companies were both attempting to break the monopoly held by domestic "game of chance" agencies in the Netherlands. De Lotto, a non-profit foundation that controls domestic gambling profits, filed suit against Ladbrokes claiming that the company was not licensed to operate in the Netherlands. Betfair filed a claim with the Supreme Court after Dutch authorities refused to grant the UK company license, which had been issued to two domestic agencies. In similar judgments, the ECJ ruled in both cases that national regulations on games of chance are compatible with EU law when they are enacted to mitigate addiction and combat fraud. In the Ladbrokes decision, the ECJ stated:National legislation, such as that at issue in the main proceedings, which seeks to curb addiction to games of chance and to combat fraud, and which in fact contributes to the achievement of those objectives, can be regarded as limiting betting activities in a consistent and systematic manner even where the holder(s) of an exclusive licence are entitled to make what they are offering on the market attractive by introducing new games and by means of advertising. It is for the national court to determine whether unlawful gaming activities constitute a problem in the Member State concerned which might be solved by the expansion of authorised and regulated activities, and whether that expansion is on such a scale as to make it impossible to reconcile with the objective of curbing such addiction. The Dutch judiciary must now determine if its regulations are designed to meet these objectives or if they were simply implemented to boost funding. The Netherlands has set up a monopoly for the national lottery and other games of chance, which is held by the non-profit De Lotto. It uses the funds it collects to promote sports, health, and culture in the country.
The US has also taken recently taken steps to tighten restrictions on Internet gambling. Earlier this week, official federal enforcement of the Unlawful Internet Gambling Enforcement Act (UIGEA) [HR 4411 materials] began. The UIGEA, which bans banks and financial institutions from intentionally accepting payments from credit cards, checks, or electronic fund transfers related to unlawful Internet bets was scheduled to take effect on December 1, 2009, but enforcement was delayed [JURIST report] in November until June 1. The delay allowed US banks and financial institutions six months to get in compliance with the new rules designed to curb Internet gambling. The act was signed into law [JURIST report] by then-president George W. Bush in October 2006 amid controversy over the effects of the bill on US bettors and foreign companies. The US House of Representatives passed the UIGEA [JURIST report] in July 2006 and included exemptions for Internet gambling on horse racing and state lotteries.


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UN official urges greater accountability for US drone strikes
Drew Singer on June 3, 2010 10:37 AM ET

[JURIST] A top UN official on Wednesday called on the US to cease CIA drone strikes [press release] in Pakistan until more accountability for the strikes exists. UN Special Rapporteur on extrajudicial, summary or arbitrary executions Philip Alston [official website] said that, despite their usefulness against terrorist organizations, the international community is kept uninformed of when and where drone attacks are authorized, allowing the CIA to conduct strikes virtually anywhere in the world without having to answer for its actions. In a report [text, PDF] presented to the UN Human Rights Council [official website] Saturday, Alston outlined the gaps he sees in accountability for drone strikes:Even where the laws of war are clearly applicable, there has been a tendency to expand who may permissibly be targeted and under what conditions. Moreover, the States concerned have often failed to specify the legal justification for their policies, to disclose the safeguards in place to ensure that targeted killings are in fact legal and accurate, or to provide accountability mechanisms for violations. Most troublingly, they have refused to disclose who has been killed, for what reason, and with what collateral consequences. The result has been the displacement of clear legal standards with a vaguely defined licence to kill, and the creation of a major accountability vacuum. The CIA rebuffed the accusations [WP report] made by Alston, stating that the agency works under a strict legal framework and substantial government oversight. The agency claims that its "accountability [is] real" and the secrecy of its missions should not lead the UN to assume its is not acting responsibly. According to the UN, the US is the most prolific user of targeted killings today.
Last year, Alston noted that the use of unmanned drones by the US to carry out attacks in Pakistan and Afghanistan may be illegal [JURIST report] under international law. Alston said, "[t]he onus is really on the government of the United States to reveal more about the ways in which it makes sure that arbitrary executions, extrajudicial executions, are not in fact being carried out through the use of these weapons." Alston criticized the US policy in a report to the UN General Assembly's human rights committee that was presented as part of a larger demand that no state be free from accountability. In March, US State Department [official website] Legal Adviser Harold Koh [academic profile] defended the strikes [JURIST report], arguing that they do not violate current international laws. The statements followed a lawsuit filed by the American Civil Liberties Union [advocacy website] to obtain more information about the drone attacks [JURIST report]. In April, a US subcommittee heard testimony on the legality of unmanned drone strikes [JURIST report]. In his opening remarks, subcommittee chair John Tierney said the drone strikes raise very complex legal issues and the US government needs to determine when and where an attack may legally occur, and at what point collateral damage becomes an issue.


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Belgium judge, court clerk shot dead in courthouse
Hillary Stemple on June 3, 2010 10:15 AM ET

[JURIST] A civil judge and court clerk were shot and killed in a central Brussels courtroom on Thursday by a man attending the morning's hearings. Police were searching for the shooter who fled the courtroom, but may have been injured [Irish Times report] while escaping. Private gun ownership is legal in Belgium, but the government enacted stricter regulations in 2006 [text, PDF; in French and German] requiring gun owners to obtain a permit before purchasing a weapon and requiring them to register their weapons. The law was enacted after a man purchased a gun [BBC report] and then went on a shooting spree killing a woman and child. Belgian Justice Minister Stefaan De Clerck indicated Thursday's shooting emphasized the need for increased security [AP report] in Belgian courthouses.
Judges have also been victims of violent attacks in other countries. Earlier this week, three judges were killed in a Chinese courthouse [JURIST report] by a man allegedly upset over the division of marital assets. In April, a Moscow City Court [official website] judge known for presiding over cases involving neo-Nazi groups was killed [JURIST report] while leaving his apartment. The murder of Judge Eduard Chuvashov was suspected to be a contract killing in light of the death threats he faced after presiding over the trials of members of neo-Nazi gangs. In November, a Somali judge known for jailing suspected pirates [JURIST news archive], human traffickers, and Islamist insurgents was shot dead [JURIST report] while leaving a mosque in the Puntland city of Bossaso. Judge Mohamed Abdi Aware of the Puntland high court and the Puntland Supreme Judicial Council, had recently jailed four members of the al-Shabaab Islamist group and had sentenced 12 suspected pirates to terms ranging from three to eight years.


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Obama extends additional benefits to same-sex partners of federal employees
Dwyer Arce on June 3, 2010 9:36 AM ET

[JURIST] US President Barack Obama on Wednesday ordered [memorandum, PDF] executive agencies to offer greater benefits to the same-sex partners of federal employees and their children, expanding benefits to their allowable limits under federal law. The Defense of Marriage Act (DOMA) [text] prevents the Obama administration from extending the full benefits given to opposite-sex spouses of federal employees. Despite this, a legal review conducted by the Office of Personnel Management and the Department of Justice [official websites] determined that some additional benefits could be extended to same-sex couples. These include allowing the children of the domestic partners of federal employees to qualify for federal childcare subsidies and services and travel and relocation payments. Additionally, it would make all new benefits provided to the families of federal employees applicable to same-sex partners. In the memorandum, Obama explained the importance of extending these benefits:For far too long, many of our Government's hard-working, dedicated LGBT employees have been denied equal access to the basic rights and benefits their colleagues enjoy. This kind of systemic inequality undermines the health, well-being, and security not just of our Federal workforce, but also of their families and communities. In a statement [text] made by Obama announcing the changes to federal policy, he renewed his calls for Congress to pass the Domestic Partnership Benefits and Obligations Act [HR 2517 materials], which would extend the full benefits available to the opposite-sex spouses of federal employees to same-sex domestic partners.
The new benefits build upon those extended in June 2009 when Obama signed [JURIST report] a memorandum [text] allowing domestic partners to be added to insurance programs, to use medical facilities, and to be included in family size and house allocation considerations. In February, Massachusetts Attorney General Martha Coakley [official profile] moved for summary judgment [text, PDF; JURIST report] in a lawsuit [complaint, PDF] challenging the constitutionality of DOMA. Coakley has argued that the federal law interferes with the state's right to define and regulate marriage and alleges that DOMA excludes more than 16,000 married same-sex couples and their families in Massachusetts from rights and protections afforded to other married couples. The state alleges that it creates separate and unequal categories of married individuals, prohibiting same-sex spouses from filing joint federal tax returns, receiving Social Security survivor benefits, guaranteed leave from work for spousal illness and other rights given to married couples of the opposite sex. The Obama administration has said DOMA is discriminatory but has maintained that it is nonetheless constitutional. In March, the District of Columbia joined Vermont, New Hampshire, Iowa, Connecticut, Massachusetts [JURIST reports], and the Coquille Indian Tribe [OregonLive report] in legalizing same-sex marriage [JURIST news archive], extending the full benefits available at the state level to same-sex spouses.


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Federal prosecutors file additional charges against Michigan militia members
Hillary Stemple on June 3, 2010 9:10 AM ET

[JURIST] Federal prosecutors on Wednesday filed additional charges [superseding indictment, PDF] against four members of the "Christian warrior" militia, Hutaree [militia website; CNN backgrounder], alleging possession of machine guns and unregistered rifles, as well as use of firearms during a violent crime. Nine members of the militia were originally indicted [text, PDF; JURIST report] in March on charges of seditious conspiracy, attempted use of weapons of mass destruction, teaching the use of explosive materials, and possessing a firearm during a crime of violence in connection with a plan to kill Michigan law enforcement officers. Four members of the militia, including one of the men named in the new indictment, were released on bail [JURIST report] last month. Judge Victoria Roberts of the US District Court for the Eastern District of Michigan [official website] originally granted bail [JURIST report] to all nine militia suspects, but the US Court of Appeals for the Sixth Circuit [official website] granted an emergency stay [JURIST report] blocking their release. A hearing is scheduled to be held next week to determine if the five remaining militia members should be released on bail. A lawyer for one of the defendants has indicated that he believes the additional charges were filed in order to influence the bail hearing [AP report].
Militia groups such as the Hutaree are reportedly on the rise in the US. A recent report by the Simon Wiesenthal Center [advocacy website] suggests that a lack of regulation on the Internet [JURIST report] is fueling this increased prevalence. A report by the Southern Poverty Law Center (SPLC) [advocacy website; JURIST comment], released last year, noted that these groups are making a comeback [JURIST report] after declining in number for several years. The SPLC said that such groups are generally anti-tax, anti-immigration, and increasingly racially motivated since the election of the country's first African-American president, Barack Obama. The SPLC also warned that these groups could soon pose a security risk to the country, quoting one official as saying "[a]ll it's lacking is a spark. I think it's only a matter of time before you see threats and violence."


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Canada government introduces bill to modernize copyright laws
Erin Bock on June 3, 2010 8:01 AM ET

[JURIST] The Canadian government on Wednesday introduced [press release] the Copyright Modernization Act [text; materials] aimed at updating existing copyright law [text, PDF] and bringing it in line with international standards. If passed, the bill would protect copyright holders by prohibiting hacking of digital locks, allowing the use of user-generated content, and giving authorship rights to photographers. Consumers would officially be allowed to practice "format-shifting" by copying legally-obtained content onto other devices and "time-shifting" by recording broadcasts for later viewing. Additionally, the bill would permit the use of copyrighted material for parody and satire. The bill would also decrease the amount that a consumer would have to pay for a violation of the act from $500-$20,000 per violation to $100-$5,000 in total damages. Government officials indicated that the legislation reflects a positive step toward modernization:This legislation will bring Canada in line with international standards and promote home-grown innovation and creativity. It is a fair, balanced and common-sense approach, respecting both the rights of creators and the interests of consumers in a modern marketplace. The Government of Canada is working to secure Canada's place in the digital economy and to promote a more prosperous and competitive Canada. Critics say the bill is too favorable to copyright holders [Reuters report] and neglects the rights of consumers. The Canadian government pledged [JURIST report] in March to strengthen its copyright laws after the government failed to pass [AFP Report] similar legislation [JURIST report] in 2007 and 2008.
This latest announcement comes less than a month after the US Congressional International Anti-Piracy Caucus [official website] released the 2010 International Piracy Watch list [text, PDF; JURIST report], which named Canada one of the worst countries for protecting copyrighted information. Also last month, the Office of the US Trade Representative [official website] placed Canada on its Priority Watch List [JURIST report] of countries that are not adequately protecting intellectual property rights. Canada first appeared on the USTR Priority Watch list in 2009 [JURIST report].


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Italy high court rules adoptive couples cannot request children based on race, ethnicity
Erin Bock on June 3, 2010 7:07 AM ET

[JURIST] The Italian Court of Cassation [official website, in Italian], the country's highest appeals court, ruled Tuesday that couples seeking to adopt children of a certain ethnicity or race "are not suitable for international adoption." The judgment was prompted by the case of a Sicilian couple who declared that they only wanted to adopt a Caucasian child of European descent. The decision cites violations of the Italian Constitution [text, PDF] regarding inalienable rights, equality, and international agreements. The court stated that parents who indicate a preference should not only have their particular application denied by the juvenile court under Article 30 of Law 184/1983 [text, PDF] of the Italian Civil Code, but their capacity to apply for adoption in general should be called in to question [ANSA report, in Italian]. The court also recommended that social services provide discriminatory parents with psychological support to allow them to overcome their aversion to adopting a child "who is not in [their] own image." The decision comes more than a year after the attorney general asked the court to intervene [Apcom report, in Italian] and ban these types of discriminatory requests. Children's rights group Friends of Children [advocacy website, in Italian], which initiated the complaint, said that they have been battling these types of requests for years and welcomed [press release, in Italian] the court's decision.
Ethnic tensions and discrimination are problematic in Italy, where illegal immigration is a growing problem. In January, the European Court of Human Rights (ECHR) [official website] dismissed a suit against Italy [JURIST report] by Palestinian immigrants alleging illegal expulsion from the country. Earlier that month, a group of African immigrants was evacuated [JURIST report] from the town of Rosarno after violence was directed towards migrant farm workers there. In August, rights groups criticized Italy [JURIST report] for returning a suspected terrorist to Tunisia, disregarding obligations imposed by the ECHR. Last July, the Italian Senate approved a law [JURIST report] that would criminalize illegal immigration with a fine of between 5,000 and 10,000 euros and up to six months detention before deportation.


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