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Legal news from Friday, October 14, 2011




Ukraine ex-PM Tymoshenko facing new charges
Michael Haggerson on October 14, 2011 3:21 PM ET

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[JURIST] The Security Service of Ukraine [official website] on Thursday brought new corruption charges [press release] against former prime minister Yulia Tymoshenko [personal website; JURIST news archive], just days after she was sentenced [JURIST report] to seven years in prison on charges of abuse of power and corruption. Prosecutors allege that Tymoshenko embezzled USD $400 million of debt from her company United Energy Systems of Ukraine onto the state. Amnesty International (AI) [advocacy website] has called the prosecution of Tymoshenko politically motivated and based on charges that are not internationally recognizable offenses [press release]. The US and several European countries have echoed AI's statements and have called the prosecution the criminalization of normal political decision-making [BBC report]. Tymoshenko repeated her hope [press release] that the European Court of Human Rights (ECHR) [official website] would overturn Tuesday's guilty verdict and stated her intention to appeal [press release]. In June, Tymoshenko filed a complaint [JURIST report] with the ECHR alleging violations of the European Convention of Human Rights [text, PDF]. The complaint argued that the charges against Tymoshenko are politically engineered by current Ukrainian President Viktor Yanukovych [official website, in Ukrainian], Tymoshenko's political rival.

Last week, the Ukrainian parliament [official website] rejected four amendments to the country's Criminal Code [materials] that sought to decriminalize Article 365, which stipulates jail time for abuse of office [JURIST report]. Tymoshenko's trial resumed at the end of September after a two-week recess [JURIST reports]. In August, former Ukrainian president Viktor Yushchenko [BBC backgrounder; JURIST news archive] testified against [JURIST report] Tymoshenko, his former prime minister. That same month, the Kiev Appeals Court refused Tymoshenko's appeal of her detention for contempt charges [JURIST reports]. Also in August, Kireyev rejected a request [JURIST report] from Tymoshenko to release her from prison. In July, the Security Service of Ukraine (SBU) [official website, in Ukrainian] announced that they are launching a criminal investigation [JURIST report] into United Energy Systems of Ukraine (UESU), an energy company at one time headed by Tymoshenko. Tymoshenko's government was dissolved in March 2010 after she narrowly lost the presidential election to Yanukovych. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election.




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Taiwan high court sentences ex-president Chen to additional prison time
Hillary Stemple on October 14, 2011 2:49 PM ET

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[JURIST] The Taiwan High Court [official website, in Chinese] on Thursday sentenced [press release, in Chinese] former Taiwanese president Chen Shui-bian [BBC profile] to 18 years in prison after finding him guilty of financial fraud, overturning a lower court ruling. Members of Chen's family, including his wife, were also found guilty on corruption charges [ANN report] and given prison sentences ranging from six months to 11 years. A lower court originally acquitted Chen [JURIST report] and 21 other defendants of the charges last November, citing lack of evidence supporting the allegations, and specifically noting that under the country's Anti-Corruption Act, the president does not control bank mergers [Taipei Times report] and as such he could not take bribes to influence them. Chen and his wife were accused of taking $20 million in bribes from banks and financial institutions [JURIST report] that sought to protect themselves during the implementation of Chen's financial reform program. A spokesperson for the court noted that Chen's total prison time cannot exceed 30 years [NYT report]. The defendants, including Chen, are able to appeal [Taiwan News report] the court's ruling.

Chen was found guilty on corruption charges and sentenced to life in prison in September 2009, but the sentence was reduced to 20 years [JURIST reports] in June 2010 after the high court determined he had not embezzled as much money as previously thought. Chen was also indicted [JURIST report] in 2009 on additional corruption charges relating to funds he received while traveling abroad as president. Chen was initially detained in November 2008, and was formally indicted [JURIST report] a month later. In January 2009, he unsuccessfully appealed [JURIST report] his pretrial detention, after staging three hunger strikes in protest. Chen maintains that current Taiwanese President Ma Ying-jeou [official website, in Chinese] is using Chen's trial to distance himself from Chen's anti-China views. Chen served as president of Taiwan from 2000-2008.




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UN rights chief calls for international protection of Syria civilians
Hillary Stemple on October 14, 2011 2:18 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Friday urged [statement] the international community to take steps to protect civilian lives in Syria, where more than 3,000 civilians have been killed since protests against the government began in March. Pillay stated that the Syrian government has failed to protect its population and has ignored calls from the international community to cooperate with international investigations into possible human rights violations. According to a report adopted Tuesday by the UN Human Rights Council (UNHCR) [official website], Syria has rejected calls from several nations [JURIST report] to join the International Criminal Court (ICC) [official website]. Pillay cited repeated reports of snipers firing from rooftops and the use of live ammunition in the shelling of residential neighborhoods as examples of the excessive force being used against peaceful protesters. According to Pillay:
The result has been a devastatingly remorseless toll of human lives. The number of people killed since the violence started in March has now exceeded 3,000, including at least 187 children. More than 100 people have been reported killed in the last 10 days alone. In addition, thousands have been arrested, detained, forcibly disappeared and tortured. Family members inside and outside the country have been targeted for harassment, intimidation, threats and beatings. As more members of the military refuse to attack civilians and change sides, the crisis is already showing worrying signs of descending into an armed struggle.
Pillay also indicated that protesters' family members, both inside and outside Syria, are being threatened, harassed and intimidated. She expressed concern that the struggle against the protesters could dissolve into an armed struggle. Pillay called on the international community to speak with one voice in order to protect the Syrian people and prevent the country from falling into civil-war.

Last month, the UNHRC voted 33-4 to adopt a resolution [JURIST report] ordering an investigation [press release] into crimes against humanity in Syria and urging the Syrian government once again to halt its violent crackdown against peaceful protesters. An emergency meeting was held in response to a plea [JURIST report] from Pillay to refer Syria to the ICC for an investigation into the violent suppression of anti-government protests. Many steps have been taken to try and halt the violence in Syria. In August, the Los Angeles Times reported that an unknown Western country is funding an investigation [JURIST report] into Syria's recent human rights abuses. In July, two UN rights officials expressed concern over reports of violence [JURIST report] used by Syrian authorities against the country's own people. In June, the UN Office of the High Commissioner for Human Rights (OHCHR) published a preliminary report [JURIST report] describing human rights violations in Syria and calling for an investigation into government-authorized abuses related to pro-democracy protests that began earlier this year. In April, Pillay urged Syria to immediately halt the killings [JURIST report] and violence against civilian protesters in response to the fatal shootings of peaceful anti-government protesters.




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Federal appeals court blocks Alabama immigration law
Jaclyn Belczyk on October 14, 2011 1:30 PM ET

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[JURIST] The US Court of Appeals for the Eleventh Circuit [official website] on Friday temporarily blocked [order, PDF] portions of a controversial Alabama immigration law [HB 56 text]. The ruling came in response to a motion filed last week [JURIST report] by the US Department of Justice (DOJ) and a coalition of immigrants rights groups after a judge for the US District Court for the Northern District of Alabama [official websites] twice refused to block the law [JURIST report] from taking effect. The appeals court granted the DOJ's motion to block Section 28, which requires immigration status checks of public school students, and Section 10, which makes it a misdemeanor for an illegal resident not to have immigration papers. The appeals court refused to block provisions that require police to check the immigration status of suspected illegal aliens, bar state courts from enforcing contracts involving illegal immigrants and make it a felony for illegal immigrants to enter into a "business transaction," including applying for a driver's license. The injunction will remain in effect until the Eleventh Circuit hears oral arguments and issues a ruling on the constitutional questions presented by the case.

The state of Alabama responded [JURIST report] to the DOJ's motion earlier this week, arguing that the law is not preempted by federal law and that it is necessary to address the problem of illegal immigrants "taking jobs away from United States citizens and authorized aliens who desperately want to work in these hard economic times." The DOJ, joined by several rights groups, appeared before the district court in August to make arguments against the law's enactment, at which point Chief Justice Sharon Lovelace Blackburn issued a temporary injunction [JURIST reports] to forestall enactment of the challenged provisions. From the time that the legislation was signed into law in June, 16 countries filed briefs [JURIST reports] in the Alabama district court against the controversial law, arguing that it provides unfair treatment to citizens of those countries currently residing in Alabama and sanctions discriminatory treatment based on ethnicity.




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UN expert supports Mexico right to food constitutional reform
Michael Haggerson on October 14, 2011 1:17 PM ET

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[JURIST] UN Special Rapporteur on the Right to Food [official website], Olivier De Schutter [official profile], announced on Thursday that he supports a Mexican constitutional reform which recognizes the right to food [press release]. The reform targets articles 4 and 27 of the Mexican constitution [text, PDF]. Article 4 guarantees that "[n]o one may be deprived of the fruits of his labor except by judicial decision." Article 27 provides the government the "right to regulate the utilization of natural resources" distribute resources equitably for the public good. Schutter observed that Mexico's progress towards realizing the right to food has been "uneven" [report]. Although the percent of children who are considered underweight in Mexico decreased from 14.2 percent in 1998 to 5 percent in 2006, the overall number of people living in "food poverty" increased 4.4 percent from 2006 to 2008.

Schutter urged governments to reform their legal systems [JURIST report] to fight hunger and promote the right to food in May 2010. UN Secretary-General Ban Ki-moon [official website] has historically called for an increased effort to uphold the "fundamental human right" to food [JURIST report] for people around the world who suffer from chronic hunger. The right to adequate food is recognized in Articles 24(2)(c) and 27(3) of the Convention on the Rights of the Child, Article 12(2) of the Convention on the Elimination of All Forms of Discrimination against Women, and Articles 25(f) and 28(1) of the Convention on the Rights of Persons with Disabilities [texts]. Article 25 of the Universal Declaration on Human Rights [text], adopted by the UN in 1948, states that "[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food."




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Myanmar urged to release remaining political prisoners
Sarah Posner on October 14, 2011 11:01 AM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official profile] on Thursday welcomed [statement] the release of approximately 200 political prisoners by Myanmar's president, while urging the government to release all political prisoners [UN News Centre report] in accordance with the rule of law. Ban Ki-moon also acknowledged the dialogue between the government and pro-democratic leader Aung San Suu Kyi [BBC profile; JURIST news archive], as well as talks between the authorities and ethnic groups in an effort to bring stability and address the challenges currently facing the country. Some of the prisoners released have been addressed by the Special Rapporteur in the past. The Assistance Association for Political Prisoners (Burma) (AAPPB) [advocacy website] on Thursday claimed that Myanmar's announcement is merely an attempt to appease the international community [press release]. Despite an announcement on October 11 that Myanmar would release 6,359 prisoners, no further information about the actual number of prisoners that will be released has been publicized. According to the AAPPB, the timing of the Myanmar government's announcement coincides with other concerns, signifying that the release of prisoners is just an attempt by the government to ease international tension. AAPPB said that the prisoner release is not satisfactory

On Tuesday, US Assistant Secretary of State Kurt Campbell indicated that Myanmar's civilian-led government was planning dramatic changes including releasing hundreds of political prisoners [JURIST report] and consequential dialogue with Suu Kyi. Myanmar has sought to improve its international reputation following a transfer of power from a military regime to a civil system in March after holding its first elections in 20 years. Last month, Myanmar's government formed the Myanmar National Human Rights Commission (MNHRC) [JURIST report] to promote and safeguard the country's constitutional rights. In August, UN Special Rapporteur on the situation of human rights in Myanmar Tomas Ojea Quintana urged the government of Myanmar to investigate human rights abuses [JURIST report] and improve its rights record. In May, Myanmar began releasing as many as 15,000 prisoners [JURIST report] as part of an amnesty program after a visit from a special envoy from the UN secretary-general, but rights groups claim the government has not gone far enough.




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Rights group urges Malawi to arrest Sudan president
Sarah Posner on October 14, 2011 9:15 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] urged Malawi on Friday to arrest [press release] Sudanese President Omar al-Bashir [case materials; JURIST news archive] during his visit to the country on Saturday and surrender him to the International Criminal Court (ICC) [official website] for prosecution. Al-Bashir is expected to attend a trade summit in Malawi this weekend, despite two international warrants out for his arrest on charges of genocide, war crimes and crimes against humanity in connection with the Darfur conflict [BBC backgrounder]. Malawi has refused calls from western powers to arrest al-Bashir, as President Bingu wa Mutharika indicated his belief that leaders should only be tried domestically and not by the ICC. However, Mutharika's failure to arrest al-Bashir would constitute a violation of Malawi's obligations under the Rome Statute. Despite an arrest warrant issued in March 2009 and another one in July 2010, al-Bashir continues to avoid trial by the ICC.

Al-Bashir announced on Wednesday that Sudan will adopt an Islamic constitution [JURIST report]. Al-Bashir remains an extremely controversial figure in international politics for his actions during the Darfur conflict. In June, AI urged Malaysia to withdraw an invitation for al-Bashir to participate in an event there and to arrest him if he travels to the country [JURIST report]. Also in June, ICC Chief Prosecutor Luis Moreno Ocampo issued a statement claiming that al-Bashir has continued to commit crimes against humanity [JURIST report] in Darfur. In May, the ICC urged Djibouti to arrest al-Bashir [JURIST report]. In October, the ICC requested that Kenya arrest al-Bashir [JURIST report] while he visited that year for a second time. Previously, al-Bashir had visited Kenya for the signing of the country's new constitution [JURIST report].




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Rights groups urge Canada to arrest ex-US president Bush ahead of visit
John Paul Putney on October 14, 2011 8:44 AM ET

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[JURIST] Human Rights Watch (HRW) and Amnesty International (AI) [advocacy websites] on Wednesday urged the Canadian government to investigate [HRW press release] and arrest [AI press release] former US president George W. Bush [JURIST news archive] for his role in torture, ahead of his travel to an economic summit in British Colombia next week. AI's submission [text, PDF] to Canadian authorities emphasizes Bush's authorization of "enhanced interrogation techniques" [Business Review Canada report] including waterboarding, which Bush has admitted. Pressing obligations under international law, HRW urged:
There is overwhelming evidence that Bush and other senior administration officials authorized and implemented a regime of torture and ill-treatment of hundreds of detainees in US custody, including at least two Canadian citizens. Under the Convention against Torture, Canada is obligated to prosecute individuals suspected of committing torture found in its territory if other countries have failed to do so. The Obama administration has failed to investigate allegations of involvement in torture by Bush or other senior administration officials, and none are expected.
The Canadian government has rejected [Reuters report] AI's call to arrest the former head of state calling it a cheap stunt.

Calls for the investigation or arrest of former president Bush have largely been rejected. In February, the Center for Constitutional Rights (CCR) and the European Center for Human Rights (ECCHR) [advocacy websites] urged the signatory states of the UN Convention Against Torture (CAT) [text] to pursue criminal charges against the former president [JURIST report]. The call came as the rights groups announced that two criminal complaints [text, PDF] were to be filed in Switzerland against Bush before he canceled his trip to the country. Calls to investigate the criminal culpability of Bush and officials in his administration have been consistently rejected by US officials [JURIST report]. In November, the American Civil Liberties Union (ACLU) [advocacy website] urged US Attorney General Eric Holder to investigate Bush for violation of the federal statute prohibiting torture [18 USC § 2340A]. Also citing his memoir, the ACLU argued that the use of waterboarding has historically been prosecuted as a crime in the US. The letter also argued that failure to investigate Bush would harm the US's ability to advocate for human rights in other countries. Bush's secretary of defense Donald Rumsfeld [JURIST news archive] has also faced possible criminal charges in Europe, when, in 2007, a war crimes complaint was filed against him [JURIST report] in Germany for his involvement in detainee treatment. The case was later dismissed [JURIST report].




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Hedge fund executive Rajaratnam sentenced to 11 years for insider trading
John Paul Putney on October 14, 2011 7:45 AM ET

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[JURIST] A judge in the US District Court for the Southern District of New York [official website] on Thursday sentenced [press release, PDF] former Galleon Group hedge fund executive Raj Rajaratnam [JURIST news archive] to 11 years in prison, fined him $10 million and ordered he forfeit an additional $53.8 million. The 11-year sentence was significantly lower than the 24 1/2-year sentence requested by prosecutors [Bloomberg report] and less than the 19 1/2-year minimum [Reuters report] indicated by the non-obligatory federal sentencing guidelines. Even so, Rajaratnam's sentence is the longest term ever imposed for insider trading [Bloomberg report] and is part of a trend of tougher sentences for white-collar criminals [NYT report] precipitated in part by the federal sentencing guidelines which Congress passed in 1987. Calling his crime an assault on free markets and a virus in business culture in need of eradication, Judge Richard Holwell cited Rajaratnam's charitable financial help for victims of the tsunami in Sri Lanka, the earthquakes in Pakistan and the 9/11 attacks, as well as his impeding kidney failure due to advanced Type II diabetes as reasons for the comparatively lenient sentence.

Rajaratnam was convicted of 14 counts of insider trading [JURIST report] in May in the largest hedge fund insider trading case in US history. Several other defendants have pleaded guilty in connection with the case. Danielle Chiesi pleaded guilty [JURIST report] in January. Former IBM senior vice president Robert Moffat was sentenced to six months in prison in September and ordered him to pay a $50,000 fine for his role in the scheme after pleading guilty [JURIST reports] in March 2010. Former Intel Capital executive Rajiv Goel pleaded guilty [JURIST report] to insider trading charges in February 2010. Rajaratnam, Chiesi, Goel and Moffat were arrested in October 2009 and charged [complaint, PDF] along with two other individuals and two business entities with insider trading. The complaint alleged that the individuals provided Galleon Group and another hedge fund with material nonpublic information about several corporations upon which the funds traded, generating $25 million in illicit gain. Rajaratnam and Chiesi originally pleaded not guilty [JURIST report] in December 2009 after being indicted for insider trading.




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