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Legal news from Thursday, August 11, 2011




Egypt moves to end state of emergency
Julia Zebley on August 11, 2011 3:14 PM ET

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[JURIST] Egypt's interim government, the Cabinet of Ministers [official website] decided at Thursday's meeting [meeting notes, in Arabic] to begin measures to end Egypt's state of emergency [JURIST news archives] that has been in effect for nearly 30 years. The Egyptian Supreme Council of the Armed Forces [NYT backgrounder] announced in March that it would lift the state of emergency, but until now, nothing else had been discussed on the matter. Due to what many perceive as the government's inactivity, if not abuse of power, protests have continued. The government commented on this in a separate statement [text, in Arabic]:
The Council of Ministers, since recording its appreciation [of the revolution's martyrs], have achieved on the ground security, stability and the return of discipline to the Egyptian streets after the success of the Council of Ministers to persuade the powers of different national protest groups to end the sit-in Tahrir Square, which lasted for long days since the 8th of July, but emphasized the importance of upholding national unity and rallying together to achieve the economic and democratic development to achieve the goals of the glorious revolution. The Council of Ministers see that the time has come to leave all Egyptians to work freely in order to compensate for the lost country of production and rise to the aspirations of the people in the levels of quality of life.
The government also alleged that they have not utilized any of the powers [Reuters report] granted by the state of emergency.

Protests continue in Egypt as many believe the interim government is not progressing toward change quickly enough. In April, an Egyptian military court convicted blogger Maikel Nabil [JURIST report] and sentenced him to three years in prison for criticizing the army and raising questions over reform in the wake of revolution. He posted an article on his blog [text, in Arabic] on March 7 saying the army had beaten, tortured and killed protesters, including some who were cooperating with security forces. He was then sentenced without a formal hearing and without his lawyers present. In March, the Supreme Council of the Armed Forces unveiled an interim constitution that allows the council to retain control over the country until an elected government is installed. The document vests the military council with presidential powers [Al-Ahram report], including the abilities to introduce legislation, veto existing laws and act as Egypt's representative to the international community.




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Alabama AG asks state high court to weigh in on immigration law
Julia Zebley on August 11, 2011 2:01 PM ET

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[JURIST] The Alabama Attorney General's Office [official website] on Wednesday requested that a certified question be answered by the Alabama Supreme Court [official website] before the legal battle over the state's controversial immigration law [HB 56 text] commences in the US District Court for the Northern District of Alabama [official website]. The plaintiffs filed a motion with District Judge Sharon Lovelace Blackburn asking to certify to the state court what the provisions of HB 56 that void contracts with undocumented aliens and make transporting them a crime mean in light of the Alabama's Constitution's religious freedom amendment [text]. The Methodist, Episcopalian and Roman Catholic churches joined the US government in fighting the law [JURIST report] previously, arguing that the law criminalizes their missions as church leaders to provide mercy without having to verify immigration documentation. The Alabama attorney general is hoping the state court's answer will moot the litigation [Prattville Progress report].

Alabama lawmakers earlier this week filed a response [JURIST report] to groups seeking a preliminary injunction against the controversial immigration law. Attorneys for Alabama state officials, including Governor Robert Bentley [official website], argue that the state law is not preempted by federal immigration law and that the text reflects a "spirit of cooperation with the federal government." Lawsuits filed by the US Department of Justice [JURIST report], the Methodist, Episcopalian and Roman Catholic churches and three dozen plaintiffs represented by the American Civil Liberties Union (ACLU), Southern Poverty Law Center (SPLC) and National Immigration Law Center (NILC) [advocacy websites], were consolidated last week. The Alabama immigration legislation, which was signed into law [JURIST report] by Governor Bentley in June, is one of the most rigid immigration reform laws passed recently. In addition to authorizing detention of individuals on reasonable suspicion they are illegal immigrants, the law provides harsh restrictions on employment for illegal immigrants. Businesses cited multiple times for hiring undocumented workers could lose their business licenses. Furthermore, undocumented immigrants are prohibited from applying for a job, and anyone transporting or harboring undocumented immigrants will be punished by a fine or jail time. Sixteen countries filed briefs [JURIST report] in the Alabama district court against the controversial Alabama immigration law last week, arguing that the recently enacted law unfairly treats citizens [Montgomery Advertiser report] of those countries currently residing in Alabama and sanctions discriminatory treatment based on ethnicity.




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Ivory Coast president's forces continuing extrajudicial killings: UN
Julia Zebley on August 11, 2011 1:12 PM ET

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[JURIST] A representative for the UN Mission in the Ivory Coast (MINUCI) [official website] confirmed that forces loyal to President Alassane Ouattara [BBC profile; political website, in French] are continuing to kill civilians and opposition members in his name, with 26 killings reported between July 11 and August 10. There were also 85 arbitrary detentions by members of the Republican Forces of Ivory Coast (FRCI) reported. Both the UN and rights groups [JURIST reports] have alleged that Outtara's forces have continued the violence of the post-election civil war [JURIST news archive], even after Ouattara took power. Although Ouattara has insisted that all those responsible for war crimes will be prosecuted [JURIST report], none of his supporters has been charged or arrested. On Wednesday, the son of former Ivory Coast president Laurent Gbagbo [BBC profile], Michel Gbagbo, and 12 other Gbagbo allies were charged with committing acts of post-election violence [JURIST report]. With the arrest of his son and the 12 others, all Gbagbo's political allies have been charged except for him and his wife.

Earlier this month, Ouattara set up a commission of inquiry [JURIST report] to investigate crimes and human rights violations that took place during the violence following the presidential elections in which former president Gbagbo refused to leave office after losing the election. In April, Gbagbo was captured and forced from office [JURIST report] after refusing to leave despite losing last November's election to Ouattara, which resulted in months of fighting between Ouattara's and Gbagbo's forces. Also that month, Human Rights Watch (HRW) [advocacy website] urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the FRCI killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. The International Committee of the Red Cross (ICRC) [official website] also reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence.




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Rights group calls for justice system reform in DRC
Erin Bock on August 11, 2011 11:43 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] called Wednesday for justice system reform in the Democratic Republic of Congo (DRC) [BBC backgrounder]. The report [text, PDF] states that the justice system has allowed the Congolese army and other armed groups to engage in a "cycle of violence and human rights violations for decades," alleging that the groups have engaged in torture, sexual violence and murder against citizens and that very few perpetrators have been brought to justice. AI called upon the DRC to prosecute all suspects under "international fair trial standards." AI cited to a report [text, PDF; JURIST report] issued by the UN last year, which documented the most serious violations of human rights, including violence against children, genocide and mass rape, committed in the DRC between 1993 and 2003. In response to the UN report, the DRC government proposed the creation of a special court to handle cases involving such serious rights violations. In addition to this specialized court, the AI report laid out several recommendations to further assist in strengthening the country's justice system. These recommendations include holding an international conference to develop a reform strategy, increasing the justice system budget, developing a legal aid program, abolishing the death penalty, providing greater protection to victims and witnesses, and adopting and enacting the Rome Statute of the International Criminal Court [text]. The AI also called on the UN, EU and other donors to provide financial and technical support to the DRC to ensure successful reform. AI said that the issue of reform must be a priority [statement] in the wake of the upcoming DRC presidential and legislative elections:
In the run up to Presidential and Legislative elections in DRC due to take place in November 2011, bringing perpetrators of crimes under international law to justice and ensuring reparations for victims must not just be an electoral priority; it must be translated into concrete measures...The neglected victims of these terrible crimes need justice - they must be able to contribute to the reform process in a meaningful way and have their voices heard by the government.
The report also points to poor conditions in the country's prison system. AI visited two local prisons and found that they were filled beyond capacity. The report calls for reform to prison conditions and also greater protections against escape.

Last month, the UN Organization Stabilization Mission in DR Congo (MONUSCO) in conjunction with the UN High Commissioner for Human Rights (OHCHR) [official websites] released a report [text, PDF; JURIST report] accusing soldiers in the Armed Forces of the Democratic Republic of Congo (FARDC) of committing mass rape. The report is the first to officially provide evidence that national forces perpetrated mass rape, as opposed to reports of opposition forces using it as a weapon [JURIST report]. In May, UN Secretary-General Ban Ki-Moon and the UN Security Council [official websites] called for continued reforms [JURIST report] in the DRC in order to strengthen the country's rule of law. DRC has been struggling with a number of human rights issues. In June, a military court sentenced four policemen to death [JURIST report] for killing prominent human rights activist Floribert Chebeya last year. In early October, Human Rights Watch (HRW) [advocacy website] called for the DRC government [JURIST report] to arrest general Bosco Ntaganda pursuant to an outstanding warrant for war crimes issued by the International Criminal Court (ICC) [official website]. Earlier that same week French authorities arrested a leader [JURIST report] of the FDLR for crimes committed by that group in the DRC. In October, UN peacekeeping forces and the DRC government arrested Mai Mai Cheka [JURIST report] for allegedly leading a rebel group responsible for mass rapes in the country. In December 2009, HRW urged MONUC to stop funding military groups [JURIST report] in the country that are committing human rights abuses. MONUC has been operating in DRC since 1999. The conflict in the DRC has claimed more than four million lives and has been ongoing since 1983. MONUC has overseen elections and continues to provide armed protection for civilians in certain areas, particularly the North and South Kivus provinces.




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Class action lawsuit accuses Apple, major publishers of collusion
Maureen Cosgrove on August 11, 2011 11:34 AM ET

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[JURIST] A class action lawsuit [text, PDF] filed Tuesday in the US District Court for the Northern District of California [official website] alleges that Apple [corporate website] and five major publishers colluded to illegally fix electronic book (e-book) prices. The complaint alleges that Apple and publishing companies, including HarperCollins, Hachette Book Group, Macmillan, Penguin and Simon & Schuster, conspired to increase e-book prices in an effort to compete with e-books and the economically-priced Kindle [product page] sold by Amazon [corporate website]. Apple's incentive to collude, the complaint contends, was to increase its distribution of digital media using the Kindle as a platform. The complaint alleges that the agreement occurred sometime before January 2010 when a majority of the publishers announced a shift in their pricing models and Apple simultaneously released the iPad. As a result of the unlawful agreement, Amazon was forced to abandon its discount pricing and adhere to a new agency model, thereby causing e-book prices to increase by 30 to 50 percent. The lawsuit claims that the defendants' conduct constitutes violations of federal and state antitrust laws, the Sherman Act, the Cartwright Act and the Unfair Competition Act [texts].

Apple has been battling a number of lawsuits recently. In July, Apple prevailed in a complaint [JURIST report] against HTC [corporate website] when the US International Trade Commission (USITC) [official website] ruled against HTC [JURIST report] for infringement of patents related to cell phones that run the Android operating system (OS). Apple filed a complaint against Samsung [JURIST report] earlier that month in an effort to bar importation of Samsung's smartphones and tablets. Apple claimed Samsung's "Galaxy" line copies its iPhone and iPad technology. The complaint came just a week after Samsung filed a similar complaint [JURIST report] seeking to prevent Apple from importing iPads and iPhones. Samsung claimed that Apple violated five patents also related to smartphones and tablets. In addition, Samsung filed a patent infringement suit [Bloomberg report] against Apple in the High Court in London in June. Finnish telecommunications company Nokia [corporate website] announced in June that it had entered into an agreement [press release; JURIST report] with Apple, settling all patent disputes between the parties and directing Apple to pay royalties to Nokia for the term of the agreement.




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Bali nightclub bombing suspect extradited to Indonesia
Julia Zebley on August 11, 2011 11:05 AM ET

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[JURIST] Pakistan extradited Umar Patek, the confessed bomb maker in the 2002 Bali nightclub bombing [BBC backgrounder], to Indonesia on Thursday. Patek will be charged [Jakarta Post report] under the Indonesian criminal code rather than its terrorism laws. Reportedly, he will be charged with premeditated murder under the Emergency Law on Explosives. It is also alleged that Patek is in poor psychological health [Jakarta Globe report]. Patek was the last suspect at-large from the 2002 Bali nightclub bombing, and was captured in Abbottabad, Pakistan earlier this year. It is suspected he associated with Osama Bin Laden [JURIST news archive] while in Pakistan. It was not revealed whether Patek is a member of Jemaah Islamiyah (JI) [CFR backgrounder; JURIST news archive], the terrorist organization that conducted the bombing.

JI claimed responsibility in the 2002 Bali nightclub bombings, which killed 202 people and injured 240 others. They were also implicated in the 2004 bombing of the US embassy in Jakarta and a series of further bombings in Bali during 2005. Last year, the Obama administration was considering bringing charges in a Washington, DC, federal court against Guantanamo Bay [JURIST news archive] detainee Riduan Isamuddin [BBC profile], the suspected planner [JURIST report] of the 2002 Bali nightclub bombing. Isamuddin, also known as Hambali, is the former military commander of JI and was allegedly the main link between JI and al Qaeda [GlobalSecurity backgrounder] before his capture in 2003. A decision on how to try him has not been announced, although Indonesian police requested access to Hambali in 2009 [JURIST report]. In 2008, three JI members were executed [JURIST report] following convictions for their involvement in those bombings. Before their executions, the three men had called on Islamic militant groups to carry out retribution attacks, which resulted in stepped-up security in the Indonesian capital of Jakarta and a warning [text] issued by the US embassy in Indonesia.




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Pennsylvania judge sentenced to 28 years in juvenile sentencing scandal
Maureen Cosgrove on August 11, 2011 10:53 AM ET

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[JURIST] A Pennsylvania judge was sentenced Wednesday to 28 years in prison for his participation in a juvenile sentencing scandal [JURIST news archive]. Mark Ciavarella Jr., a former judge in Pennsylvania's Luzerne County Court of Common Pleas [official website], was accused of receiving nearly $1 million in kickbacks for sentencing teenagers to two private juvenile detention facilities in which he had a financial interest. A jury in the US District Court for the Middle District of Pennsylvania [official website] reached a split decision [JURIST report] in April in Ciavarella's corruption trial, convicting him of 12 counts, including racketeering, money laundering and conspiracy, and acquitting him of 27 counts, including extortion. In a sentencing memorandum [text, PDF] filed Monday, Ciavarella's attorneys urged the court to be lenient, pointing to, among other factors, the jury acquittals, Ciavarella's lack of criminal history and the original plea offer containing an 87-month sentence. The attorneys also argued that a long sentence would not be appropriate in Ciavarella's case:
Mark can never again be a judge or lawyer. His life as a public office holder is over. A lengthy prison sentence does no more for the public's protection than a shorter sentence, or no sentence at all. The offense for which Ciavarella stands convicted is unique in that as a practical matter the perpetrator must never be involved in public affairs.
The US Probation Office pre-sentence report indicated that Ciavarella was eligible for life in prison [WSJ report] pursuant to federal sentencing guidelines.

Ciavarella's trial began [JURIST report] in early February. In July 2010, Judge Edwin Kosik accepted [JURIST report] a plea agreement [text, PDF] from former Pennsylvania judge Michael Conahan for his involvement in the juvenile sentencing scandal. Conahan now faces a 20-year prison sentence, a fine of up to $250,000 and disbarment. Kosik had previously rejected [JURIST report] joint plea agreements [text, PDF] from Conahan and Ciavarella, finding that plea bargaining to honest services fraud and tax evasion charges demonstrated that the men did not accept responsibility and that the disbarment and 87-month prison sentences were too lenient [JURIST op-ed]. In October 2009, the Supreme Court of Pennsylvania [official website] overturned [opinion, PDF] 6,500 juvenile-offender convictions issued by Ciavarella [JURIST report]. Conahan and Ciavarella were indicted in September 2009, following a withdrawal of the guilty pleas they entered [JURIST reports] in February 2009.




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Arizona appeals immigration law ruling to Supreme Court
Maureen Cosgrove on August 11, 2011 9:32 AM ET

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[JURIST] The state of Arizona on Wednesday filed a petition for writ of certiorari [text, PDF] with the US Supreme Court [official website] seeking to overturn a lower court decision enjoining four provisions of Arizona's controversial immigration law [SB 1070 materials; JURIST news archive]. The US Court of Appeals for the Ninth Circuit [official website] upheld [opinion, PDF] an injunction in April before the law ever took effect, and Arizona is now asking the high court to address whether the state law is preempted by federal immigration legislation. The state maintains that the Ninth Circuit incorrectly concluded that the state law was facially preempted and "declined to determine whether there were constitutional applications" of the Arizona immigration legislation. The state and federal laws are compatible, Arizona argues:
The baseline assumptions of our federal system are that States have inherent, plenary police power and that cooperative law enforcement is the norm. States, unlike federal agencies, are not creatures of the federal Congress and do not depend on federal statutes for authorization. It is, moreover, commonplace for state and federal law to prohibit the same conduct, and this Court has repeatedly emphasized that state officials are primarily governed by state law even when they cooperate with federal law enforcement officials. Thus, a conclusion that States are completely foreclosed from enforcing federal law or from enacting state laws that prohibit conduct made unlawful by Congress could be supported only by the clearest of congressional statements. Here, far from foreclosing such cooperative law enforcement efforts, the federal immigration laws expressly contemplate such cooperation and go so far as to compel federal cooperation with state efforts.
Arizona urged the Supreme Court to grant certiorari because the question at issue is of "extraordinary importance," the decision below created a circuit split and the lower court decision is inconsistent with established precedent. The Supreme Court will likely decide whether to hear the case [SCOTUS blog report] when its term opens in October.

In a preview of how it might rule should it decide to hear the case, the Supreme Court in May ruled [opinion, PDF; JURIST report] in Chamber of Commerce v. Whiting [Cornell LII backgrounder; JURIST report] that Arizona's controversial employment related immigration law [materials] is not preempted by the Immigration Reform and Control Act (IRCA) [text]. Last year, the DOJ sued [JURIST report] the state of Arizona and Governor Jan Brewer [official website] over SB 1070, arguing that both the Constitution and federal law "do not permit the development of a patchwork of state and local immigration policies throughout the country." The agency also claimed that the federal government has preeminent authority to regulate immigration matters and that the enforcement of the Arizona law is counterproductive to the national immigration policy. SB 1070, which criminalizes illegal immigration and requires police officers to question an individual's immigration status if the officer has a "reasonable suspicion" to believe an individual is in the country illegally, was signed into law [JURIST report] in April of last year. The law faces several additional legal challenges including a class-action law suit [JURIST report] filed by the American Civil Liberties Union (ACLU) [official website] on behalf of a number of advocacy groups and several private individuals. A challenge brought by several Tucson police officers claiming the law could not be properly implemented without racially profiling was dismissed [JURIST reports] late last year.




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Vietnam court sentences blogger to 3 years for subversion
Julia Zebley on August 11, 2011 9:30 AM ET

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[JURIST] A Vietnam court sentenced blogger and professor Pham Minh Hoang [blog, in Vietnamese], alias Phan Kien Quoc, to three years in prison Wednesday for anti-government articles, accusing him of "attempted subversion." Hoang reportedly joined the pro-democracy group Viet Tan [political website, in Vietnamese], which is banned in Vietnam as a terrorist organization, and began to write anti-communist articles [Vietnam.net report] on the Internet under his pen name. The government also accused him of teaching his students pro-democracy ideals. Some reports have suggested that Hoang was remorseful and confessed to all charges, but his wife insists he is innocent [BBC report] and was merely exercising his right to free speech when he criticized the government. Viet Tan released a statement [text, in Vietnamese] in support of Hoang later that day.
[The] activities of Pham Minh Hoang were entirely the right thing to do. From signing petitions against China's bauxite mining in the Highlands and participating in seminars on national sovereignty in the South China Sea, to voicing criticism of the regime's mistakes and fighting for democracy, Pham Minh Hoang has the right to the conscience and duty of the people of Vietnam for the country. Even participation in a political party such as the Vietnam Reform Party (Viet Tan), peaceful activities to fight for his views is normal in any society that is truly free and includes democratic and human rights. Only in Vietnam, that did not stop them from conviction. The Communist Party wants to maintain a one-party dictatorship, not democracy and accept any difference any ideas.
Viet Tan is California-based and generally considered a peaceful organization by most of the world. Hoang is a Vietnamese-French citizen after being naturalized in France when he studied there. Some attribute the leniency of his sentence to this factor. European Union (EU) [official website] High Representative of the Union for Foreign Affairs and Security Policy Catherine Ashton commented [press release, PDF] on the sentence and called for Hoang's release. Reporters Without Borders [advocacy website] also criticized [press release] the sentence. Hoang will also be on probation for three years after his release. Hoang's family said he plans to appeal.

Vietnam has acquired a troubling record of jailing peaceful opposition forces. Earlier this month, a Vietnamese appeals court upheld the seven-year sentence of prominent rights lawyer and dissident Cu Huy Ha Vu, convicted in April [JURIST report] of carrying out anti-state propaganda. The court dismissed the appeal [AP report] despite Vu's arguments that his advocating for a multi-party system did not mean he was against the Communist party. In January 2010, a Vietnamese court sentenced [JURIST report] writer and democracy activist Pham Thanh Nghien to four years in prison on charges of spreading anti-state propaganda. That same month, a Vietnamese court convicted four democracy activists [JURIST report] of subversion. Following the one-day trial, human rights lawyer Le Cong Dinh [JURIST news archive] was sentenced to five years in prison. The four defendants were accused of activities aimed at ending communist rule in Vietnam. Dinh admitted to advocating multi-party democracy in Vietnam and joining the banned Democracy Party. Prior to Dinh's conviction, a Vietnamese court sentenced [JURIST report] pro-democracy dissident Tran Anh Kim in December 2009 to five-and-a-half years in prison for subversion.




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