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Legal news from Sunday, October 16, 2011




European Commission chief to propose criminal penalties for finacial sector violations
Dan Taglioli on October 16, 2011 4:39 PM ET

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[JURIST] The head of the European Commission (EC) [official website] Sunday announced plans [Le Parisien report, in French] to propose criminal sanctions for wrong-doers in the financial sector. In an interview-format article published over the weekend, EC President Jose Manuel Barroso [official website] stated that during the coming week he will propose to introduce into European law for the first time the recognition of individual criminal liability [AFP report] for financial players who break European regulations. An English translation of his statement reads:
I will propose Thursday that individual criminal responsibility of financial actors is finally recognized in European law. ... We have seen abusive behavior in the markets. Some have caused the current crisis. We will regulate these practices! Those who violate will incur penalties. It will be a first in European legislation and a strong signal.
Barroso's proposals would oblige EU nations to amend their statutory framework to include criminal penalties for financial regulation violations.

The European debt crisis [BBC backgrounder] has led to calls for tougher regulation of financial sectors, especially in the less transparent markets for collateralized debt obligations and other exotic securities that sparked the worldwide financial crisis. Less solvent nations such as Greece and Spain have been forced to pass austerity measures and seek funds from more stable EU neighbors like Germany. JURIST Guest Columnist Larry Eaker of the American University of Paris recently wrote [JURIST op-ed] that the debt crisis in the EU has made it necessary to examine whether it is legally possible for a eurozone nation to leave the EU and abandon the joint currency altogether. Last month a German high court rejected challenges [JURIST report] brought against the constitutionality of EU rescue package and financial aid package given to Greece. In August Spain agreed to amend its constitution [JURIST report] to limit its national deficit. Italy and Spain have succeeded in lowering borrowing costs by taking advantage of a European bond-buying [Houston Chronicle report] program, and Sweden has resolved to protect its banking and financial institutions [The Local report] from effects of the debt crisis by increasing funds for more financial inspections and deposit guarantees. In June, Greece, proposed a constitutional referendum [JURIST report] aimed at eliminating the systemic governmental inefficiency and waste that led to the crisis that has wracked the country.




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Egypt military council issues ban on discrimination
Dan Taglioli on October 16, 2011 3:03 PM ET

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[JURIST] The Egyptian Supreme Council of the Armed Forces (SCAF) [NYT backgrounder] on Saturday issued a decree banning discrimination on the basis of race, gender or religion. The SCAF article, Law Decree No. 125 / 2011, amended Criminal Law provisions first passed in 1937. The new article imposes heavy penalties [Egyptian Gazette article], amounting to fines of up to EGP 100,000 (USD $16,778) and a prison sentence of up to three months, on civil servants who discriminate against citizens either as individuals or as a sect in ways that threaten social justice or equal opportunity or disturb the public peace. Ordinary citizens who commit the same crimes will be fined up to EGP 50,000 (USD $5,033) and sentenced to up to three months in jail. The introduction of the article [Reuters report] comes in response to public calls for tougher legal measures against all forms of discrimination, and the measure follows last Sunday's clashes between troops and protesters, many of whom were Coptic Christians. Twenty-five people were killed in the fighting, representing the worst street violence since the fall of former president Hosni Mubarak [Al Jezeera profile] in February 11. Many have accused the ruling military of using tactics reminiscent of Mubarak's police force against the protesters in last week's violence.

Earlier this month a similar SCAF amendment altered election rules to ban the use of religious slogans [JURIST report] in campaigning. The article came ahead of the upcoming November elections and is expected to have an immediate effect on the Muslim Brotherhood [party website; JURIST news archive] whose traditional slogan "Islam is the solution" was banned under the new electoral guidelines. However, two days later an Egyptian court overturned a ban [JURIST report] that prohibited presidential hopeful Ayman Nour [BBC profile] from forming the Islamic-based political party Al-Gama'a al-Islamiya [party website]. In March, Supreme Council of the Armed Forces announced that it would lift the state of emergency [JURIST report] before parliamentary polls were to be held. The election announcement came a week after an overwhelming majority of Egyptians voted to approve several constitutional amendments [JURIST report] in a national referendum. The majority approval is considered by some to be a milestone [JURIST comment] for Egypt during its transition to a democratic society following the national uprising [JURIST news archive] against Mubarak.




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ICC prosecutor singles out individuals for Ivory Coast war crimes probe
Ashley Hileman on October 16, 2011 11:41 AM ET

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[JURIST] International Criminal Court [ICC] [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] said Saturday that the court will launch investigations specifically aimed at three to six individuals for their alleged involvement in post-election violence [JURIST news archive] following last November's elections in the Ivory Coast [BBC backgrounder]. Ocampo arrived in the country [JURIST report] on Saturday after receiving permission from both ICC judges and Justice Minister Jeannot Ahoussou Kouadio [JURIST reports]. While the names of the individuals under investigation will not yet be released to the public, Ocampo plans to focus on the "most egregious and the most responsible" [AP report]. The Ivory Coast is not a member of ICC but through its express permission has accepted the court's jurisdiction over the case and has pledged to cooperate in the investigation.

As a part of the investigation, Ocampo plans to meet with the Truth, Dialogue and Reconciliation Commission, which was launched by the Ivory Coast [JURIST report] last month. The country hopes the commission will help to resolve conflicts stemming from the post-election violence. The 11-member commission, modeled on similar efforts [AP report] taken by South Africa during the post-apartheid era, is composed of Ivory Coast religious leaders and other dignitaries and is headed by former prime minister Charles Konan Banny. Former Ivory Coast president Laurent Gbagbo [BBC profile] was captured and forced from office [JURIST report] after refusing to leave despite losing last November's election to now President Alassane Ouattara [BBC profile], which resulted in months of fighting between Ouattara's and Gbagbo's forces. More than 3,000 people were killed from December to April following the election. The commission is likely to hear complaints from the families of people killed by Gbagbo's military. Rights groups are insisting that the government hear cases from families of those killed by Ouattara forces as well.




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US lawmakers defend DOMA in court filing
Ashley Hileman on October 16, 2011 10:31 AM ET

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[JURIST] Members of the House of Representatives Bipartisan Legal Advisory Group defended the Defense of Marriage Act (DOMA) [text; JURIST news archive] in a filing [text, PDF] on Friday in the US District Court for the Northern District of California [official website]. In the filing, the three Republican members of the group, including House Speaker John Boehner (R-OH) [official website], responded to a motion for summary judgment by plaintiff Karen Golinski, whose request to extend her health insurance benefits to her wife was denied. Golinski seeks a declaration that DOMA is unconstitutional [Bloomberg report]. The group contends that Golinski's claim fails because DOMA "easily passes the rational basis test," which would apply because "sexual orientation is not a suspect or quasi-suspect class under the traditional factors used to determine such classes" including immutability and political powerlessness:
Given that the Ninth Circuit has just finished wrestling with the consequences of the repeal of "Don't Ask Don't Tell," Plaintiff should not be heard to contend that such issues cannot be rectified through the legislative process. Moreover, Plaintiff appears oblivious to the irony of maintaining that homosexuals have limited political power in a case in which her position is supported by the Department of Justice at the insistence of the President. In light of the Department's longstanding duty to defend the constitutionality of federal statutes, its decision to decline to defend the constitutionality of DOMA—notwithstanding its acknowledgment that reasonable arguments can be advanced in defense of Section 3, that it survives rational basis review, and that eleven Circuit Courts of Appeal, including the Ninth, disagree with its conclusion that heightened scrutiny applies—and instead adopt the very position advocated by Plaintiff, is particularly telling.
Earlier this month, at the fifteenth annual dinner hosted by equal rights group Human Rights Campaign (HRC) [advocacy website], President Barack Obama [official website] told gay rights activists that he would continue to fight for the repeal [JURIST report] DOMA.

Even though the Obama administration has stopped defending the constitutionality of DOMA [JURIST report], benefits continue to be denied. Just this week, a disabled Navy veteran filed a notice of appeal [JURIST report] with the Court of Appeals for Veterans Claims [official website] for denying her partner a share of her disability benefits under DOMA. Carmen Cardona filed for veterans' spousal benefits last year but was denied. The Department of Veterans Affairs [official website] reportedly told her she could not receive benefits because her spouse was a woman, which is not a recognized marriage under federal law. The Department has declined to comment [Fox News report] on the potential litigation. In February, congressional Democrats introduced the Respect for Marriage Act [text], which was intended to repeal DOMA [JURIST report], but it has not yet passed.




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