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Legal news from Friday, January 28, 2011




Spain judge seeks US government response to Guantanamo abuse allegations
John Paul Putney on January 28, 2011 4:27 PM ET

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[JURIST] Spanish judge Eloy Velasco on Friday set a March 1 deadline for the US government to indicate whether Guantanamo abuse allegations will be investigated by US lawyers before deciding whether to allow a controversial lawsuit against former Bush administration officials to move forward. The lawsuit, originally filed in 2009 [JURIST report], accuses high profile lawyers including former attorney general Alberto Gonzales [BBC profile], David Addington, William Haynes, Douglas Feith, Jay Bybee and John Yoo [JURIST news archive] of inventing a legal cover for torture at Guantanamo [ABC report, in Spanish]. Judge Velasco provided one final month for the US to respond, noting that previous requests have gone unanswered [EFE report, in Spanish]. The judge also requested evidence that the three former Guantanamo inmates are Spanish citizens [Dow Jones report]. The case, although not the only Guantanamo-related lawsuit in international courts, may further heighten tensions between the US and Spain.

Spanish National Court judges have prosecuted foreign cases aggressively under Spanish laws on the exercise of universal jurisdiction [AI backgrounder; JURIST news archive] amended [JURIST report] by Spain's parliament in November 2009. The law limits the use of universal jurisdiction to offenses committed by or against Spaniards, or where the perpetrators are in Spain. This lawsuit was originally brought before crusading judge Baltasar Garzon [BBC profile; JURIST news archive], who has been known for using universal jurisdiction extensively in the past to bring several high-profile cases, including those against Osama bin Laden and former Latin American dictator Augusto Pinochet [JURIST news archives]. In May, the Spanish General Council of the Judiciary (CGPJ) [official website, in Spanish] voted unanimously to suspend Garzon [JURIST report] for abusing his power by opening an unrelated investigation into war crimes allegedly committed under Francisco Franco [BBC backgrounder] during the Spanish Civil War [LOC backgrounder].




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UN officials urge Egypt to respect rights of protesters
John Paul Putney on January 28, 2011 3:13 PM ET

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[JURIST] UN officials including Secretary-General Ban Ki-moon and High Commissioner for Human Rights, Navi Pillay [official websites], on Friday urged the Egyptian government to exercise restraint [press release] and respect the rights of protesters. Navi Pillay acknowledged reports of tactics including rubber-coated bullets, tear gas, water cannons and batons [press release], and called on the government to investigate the reports of excessive force including civilian deaths. Pillay also pressed the government to lift the emergency law that has been in force for nearly 30 years and restore the use of mobile phones and social networks [Reuters report], stating:
While maintaining rule and order are important, the responsibility of the Government to protect the rights to life, liberty and security is paramount. I call on the Government to take concrete measures to guarantee the rights to freedom of peaceful assembly and expression, including by restoring free use of mobile phones and social networks. ... People must be entitled to express their grievances against violations of their civil and political rights as well as their frustrations at lack of realisation of their economic rights, the right to work and the right to an adequate standard of living.
Shortly after Pillay's comments, Egypt announced a curfew as the Egyptian army took to the streets.

More than 1,000 protesters have been detained [JURIST report] in Egypt as demonstrations against the 30-year reign of President Hosni Mubarak [Al Jazeera profile] entered their third day on Thursday. Meanwhile, Nobel Peace Prize laureate and Egyptian opposition leader Mohamed ElBaradei [Nobel Prize profile] has expressed his willingness to lead a transitional government [BBC report]. Elbaradei, who previously led the International Atomic Energy Agency (IAEA) [official website], has returned to Egypt [BBC report] and is reported to have joined the protests. According to some commentators, the unrest in Egypt is modeled after recent civil unrest in Tunisia that culminated with the resignation of President Zine al-Abidine Ben Ali [JURIST report] earlier this month.




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Russia president signs bill ratifying New START nuclear treaty
Drew Singer on January 28, 2011 2:36 PM ET

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[JURIST] Russian President Dmitri Medvedev [Guardian profile; JURIST news archive] on Friday signed into law a bill that ratifies the New Start treaty [materials, PDF; JURIST news archive], an agreement between Russia and the US intended to reduce nuclear arms in both countries. The Russian Federation Council on Wednesday voted to ratify the treaty [JURIST report]. The upper house of Russia's parliament unanimously supported the measure, which calls for each country to reduce its nuclear arsenal by about 30 percent. Under the new treaty, each country will be allowed to have 1,550 warheads as opposed to the 2,200 allowed under the old Strategic Arms Reduction Treaty [materials] that expired in December 2009. Council-member Viktor Evtukhov [official profile, in Russian] praised [press release, in Russian] the ratification of the treaty stating,
The conclusion of the START treaty is clearly the achievement of national policy. First, the ratification of the treaty will have a positive impact in all areas of bilateral cooperation the signing of START-3 completely draws a line under the Cold War. Secondly, the New START treaty fully meets the interests of Russia, who chose a less costly and more rational approach.
Russia included non-binding language in its ratification [AP report] disapproving of US plans to build a missile defense system in Eastern Europe. Russian Defense Minister Anatoly Serdyukov said that the treaty will not affect Russian plans [RIA Novosti report] to build a missile defense system. The US and Russia are expected to hold a formal ceremony [Reuters report] marking the treaty's ratification next month.

Russia's lower house originally approved the treaty [JURIST report] in December. Earlier that month, the US Senate voted 71-26 [JURIST report] to ratify the treaty. US President Barack Obama and Medvedev signed the treaty [JURIST report] in Prague in April. The agreement, reached [JURIST report] last February, is the first nuclear agreement between the two nations in nearly 20 years. The US State Department began negotiating [JURIST report] the treaty with Russia in 2009. Nuclear disarmament between the US and Russia, whose nuclear arsenals comprise 95 percent of the world's nuclear weapons, languished during the Bush administration. The treaty is considered a key part of easing tensions between the two countries, which reached a high point after the 2008 Georgia conflict [BBC backgrounder].




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Wyoming Senate advances amendment banning same-sex marriage
Drew Singer on January 28, 2011 1:44 PM ET

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[JURIST] The Wyoming Senate [official website] on Thursday voted 20-10 [vote details] in favor of Joint Resolution 5 [text, PDF], the first step to a constitutional amendment that would prevent the state from recognizing same-sex marriages [JURIST news archive] from any jurisdiction. The decision, which was split down party lines, will now advance to the state House of Representatives, where it needs a two-thirds vote to succeed. If approved there, it will need to be signed by Governor Matt Mead [official website] and then appear as a referendum item on the 2012 ballot. The House Judiciary Committee on Friday also voted 5-4 [Star-Tribune report] to defeat House Bill 150 [text, PDF], which would have recognized civil unions [JURIST news archive] in the state. Wyoming already has a statutory ban on same-sex marriages and civil unions, but currently recognizes those from other states.

The Wyoming House approved legislation Monday [JURIST report] that would prevent Wyoming from recognizing same-sex marriages and civil unions performed out of state. House Bill 74, Validity of Marriage [text, PDF] was passed by a 32-27 House vote and will now be turned over to the Senate. The act has been described as a backup [Billings Gazette report] in case the constitutional amendment fails, a concern based on the slim vote margin for the House bill. The House has rejected similar legislation [Star-Tribune report] twice in recent years. Opponents of the bill organized an "Equality Rally" in Casper, Wyoming to protest the legislation [Star-Tribune report]. Same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and Washington, DC [JURIST reports].




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DRC war crimes suspect denies allegations at initial ICC appearance
LaToya Sawyer on January 28, 2011 1:04 PM ET

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[JURIST] Democratic Forces for the Liberation of Rwanda (FDLR) [GlobalSecurity backgrounder] leader Callixte Mbarushimana [case materials] made his initial appearance [press release] before the International Criminal Court (ICC) [official website] on Friday and denied the charges against him, which relate to violence in the Democratic Republic of the Congo (DRC) [BBC backgrounder; JURIST news archive] in 2009. The court provided official notice of the charges against Mbarushimana, which include five counts of crimes against humanity and six counts of war crimes including murder, rape, torture, and attacks against the civilian population, and also informed him of his rights under the Rome Statute [text, PDF]. In addition to denying the charges, Mbarushimana stated that he has consistently fought injustice and human exploitation [AP report] and that he strongly condemns attacks on civilians. Mbarushimana was arrested in October by French authorities and transferred to the Hague [JURIST reports] earlier this month on an order issued by the ICC. The ICC order stated that evidence supported the idea that Mbarushimana, in his role as Executive Secretary of the FDLR, "has personally and intentionally contributed to a common plan of conducting attacks against the civilian population in order to create a 'humanitarian catastrophe' and to launch an international campaign to extort concessions of political power for the FDLR." The ICC will hold a confirmation of charges hearing on July 4, 2011 in order to determine whether there is sufficient evidence to establish substantial grounds to believe that Mbarushimana committed each of the crimes charged. If the charges are confirmed, the case will be referred to the Trial Chamber for further proceedings.

In addition to facing allegations relating to violence in the DRC, Mbarushimana has also been linked to the 1994 Rwandan genocide [JURIST news archive]. In December, a French judge charged Mbarushimana [JURIST report] with war crimes and crimes against humanity for his role in the genocide. In 2008, Mbarushimana was arrested by German border police [JURIST report] as he attempted to travel to Russia on charges that he killed 32 people during the Rwandan genocide. In 2005, the UN asked France to bring genocide charges [JURIST report] against Mbarushimana, who was then in the country under refugee status. Carla Del Ponte, the former chief prosecutor for the International Criminal Tribunal for Rwanda (ICTR) [official website], refused to charge him and said the ICTR did not file an indictment against Mbarushimana because it lacked sufficient evidence against him.




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Myanmar high court dismisses Suu Kyi appeal over party dissolution
Andrea Bottorff on January 28, 2011 10:36 AM ET

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[JURIST] The Myanmar Special Appellant Court dismissed an appeal Friday filed by pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive] challenging the government's dissolution of her National League of Democracy (NLD) [party website]. The dismissal effectively exhausts Suu Kyi's ability to appeal and bars her from official political recognition [BBC report] in the country. Earlier this month, the Supreme Court agreed to hear a special appeal [AFP report] from Suu Kyi, despite dismissing the case [JURIST report] twice last year. Suu Kyi sought to reverse the government's decision to formally abolish the party [BBC report] after it had failed to register for elections. A lawyer for NLD said that they have still have one last appeal [Mizzima report] to the Chief Justice of the Supreme Court, but it unclear if the party will make the appeal.

Suu Kyi originally filed the suit in November and April [JURIST reports], but both claims were dismissed. She had asked the court to annul the part of the election law that bars political prisoners [JURIST report] from participating in elections and also to establish a parliament of lawmakers who won in the 1990 elections. The dissolution of the party was seen as political move by the military government in order to keep the NLD from participating in Myanmar's 2010 elections, the first in 20 years. Suu Kyi was released [JURIST report] following the controversial elections [JURIST report] last November after almost eight years of house arrest. Her release came days after the Myanmar Supreme Court rejected an appeal [JURIST report] challenging the conditions of her house arrest.




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France court upholds same-sex marriage ban
Andrea Bottorff on January 28, 2011 9:35 AM ET

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[JURIST] France's Constitutional Council [official website, in French] on Friday ruled [opinion, text, in French] that the country's same-sex marriage ban [French Civil Code text] does not violate the constitution [text]. The council emphasized it may only interpret existing laws under the constitution, but that the legislature has the power to make new laws allowing gay marriage. A lawyer for the gay couple who brought the complaint said that the issue has been passed to the politicians [AP report], and that he remains optimistic that the government may yet legalize gay marriage. Corinne Cestino and Sophie Hasslauer, who have lived together for 15 years and have four children, sought for the right to marry and challenged the ban in a Reims court, saying it limited their personal freedoms [AFP report]. The Court of Cassation [official website, in French], the country's highest court of appeals, in November ordered the Constitutional Council to rule on the constitutionality [JURIST report] of the law.

Both foreign and domestic courts are increasingly having to rule on the issue of gay marriage. In the US, judges in Wisconsin, California and Texas [JURIST reports] confronted the issue last year. Governments in Mexico, Kenya, Argentina, Portugal and Germany [JURIST reports] are also addressing the issue. In 2007, the French Court of Cassation ruled that same-sex marriages were not valid under French law [JURIST report] and that marriage can only be between a man and a woman. The case arose in 2004 when Stephane Charpin and Bertrand Charpentier were married [JURIST report], after which both a local court and intermediate appeals court ruled that the marriage was invalid. State lawyers argued that it was not an issue for the courts to decide, but rather was a question to be answered by parliament.




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Chile orders probe into death of Salvador Allende
Ann Riley on January 28, 2011 8:03 AM ET

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[JURIST] Chile Supreme Court [official website, in Spanish] Judge Sergio Munoz [official profile, in Spanish] on Thursday ordered an investigation into the death of former socialist president Salvador Allende [BBC profile] during the 1973 coup [BBC backgrounder]. Since the coup, Allende's death has been ruled a suicide. The investigation into Allende's death is part of a larger probe into the 1973-1990 military dictatorship [press release, in Spanish] of General Augusto Pinochet [BBC profile; JURIST news archive], who seized power after the coup. Prosecutor Beatriz Padrals will investigate 726 cases [press release, in Spanish] of alleged human rights abuses allegedly committed during the Pinochet-regime. Hundreds of Chilean officials are also under investigation for human rights abuses committed under Pinochet, including the so-called "Caravan of Death" [BBC backgrounder, JURIST news archive] following the coup, the death or disappearance of more than 3,000 people, and 28,000 cases of alleged torture.

Allende, a Marxist, was met with opposition after winning the 1970 elections in Chile from those fearing his presidency would support a pro-Soviet communist government. The 1973 coup, backed by the US [JURIST report], was followed by a 17-year military regime lead by Pinochet. In an extraordinary statement released on his 91st birthday Pinochet publicly assumed "full political responsibility" [JURIST report] for the actions of his military regime. Pinochet nonetheless justified the military coup against Allende that brought him to power as having being necessary to preserve Chile's integrity amid "the continuation and worsening of the worse political and economic crisis than one can remember." Pinochet died [JURIST report] in 2006 at the age of 91 without ever facing trial for multiple human rights abuses and tax evasion charges against him.




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Ukraine prosecutors launch new investigation of ex-PM Tymoshenko
Carrie Schimizzi on January 28, 2011 7:32 AM ET

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[JURIST] Ukrainian prosecutors announced Thursday that they have opened a new criminal investigation [press release, in Ukrainian] of opposition leader and former prime minister Yulia Tymoshenko [personal website; JURIST news archive]. The prosecution's office alleges Tymoshenko, whose government was dissolved in March after she narrowly lost the presidential election to Viktor Yanukovych [official website, in Ukrainian], abused her authority and exceeded her official duties by purchasing "1000 Opel Combo" medical vans at a 20 percent mark-up while in office. Ukrainian prosecutors allege the vans were not properly equipped to function as ambulances and that the country suffered USD $67 million in damages as a result. Tymoshenko responded to the allegations calling them a "fabrication" [statement]. On her website, Tymoshenko said the purchase of the medical vans was part of a program to help people in the rural areas of Ukraine where medical centers are sparse:
According to statistics, 60% of people who die in the villages die not because they're deathly ill, but because a doctor can't reach them in time, because there is no transportation in the villages and no way for a doctor or nurse to reach the sick. That's why we used state guarantees to purchase 1,000 vehicles for 3,000 villages that helped save more than 100,000 lives in 2010 alone.
Tymoshenko also accused the Ukrainian government of political repression. If found guilty of the charges, she could face up to 10 years in prison.

This is not the first time the Ukrainian government has investigated Tymoshenko. In December, prosecutors filed criminal charges against her [JURIST report] for allegedly misappropriating state funds during her time in office from 2007-2010. In May, prosecutors reopened a separate criminal investigation [JURIST report] into allegations that Tymoshenko attempted to bribe Supreme Court judges. The probe was initiated in May 2004 and then suspended [JURIST report] in June 2005. Last February, Tymoshenko withdrew a lawsuit [JURIST reports] filed in the Supreme Administrative Court of Ukraine claiming that the country's presidential election was corrupt. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election.




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