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Legal news from Thursday, October 20, 2011 |
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UK top judge: national courts not bound by Europe rights court
Andrea Bottorff on October 20, 2011 4:14 PM ET

[JURIST] The UK's top judge, Lord Chief Justice of England and Wales Lord Igor Judge [official profile], said on Wednesday that UK courts are not bound by decisions from the European Court of Human Rights (ECHR) [official website]. Speaking before the Lords Constitution Committee [official website], Judge suggested that while UK courts are not required to follow the ECHR [Guardian report], they should consider ECHR decisions when deciding cases. UK Supreme Court [official website] President Nicholas Phillips [official profile] countered Judge, saying that ECHR decisions will always control UK courts as long as the Human Rights Act of 1998 [text], which ratified the European Convention on Human Rights [text, PDF], remains in effect. UK Prime Minister David Cameron [official website] has expressed frustration at previous ECHR decisions and may use the UK's upcoming presidency of the Council of Europe [official website] to influence changes in the court [Telegraph report].
The UK government and the ECHR have faced increasing conflict. In March, the UK Ministry of Justice [official website] announced the creation of a commission, suggested by Cameron, which will consider the implementation of a British Bill of Rights [statement, text]. Former UK Lord Chief Justice Lord Woolf has warned that a Bill of Rights would conflict [JURIST report] with the European Convention on Human Rights, which the UK has incorporated into its law. While the government has not stated an intention to withdraw from the European Convention on Human Rights, Woolf warned that continued adherence to the convention combined with the creation of Bill of Rights would create complications for judges in determining which to follow and further the existing conflict between the UK and the ECHR. Cameron suggested the creation of the commission in February after the UK House of Commons [official website] voted to reject an ECHR ruling [JURIST reports] and continue preventing prisoners from voting in British elections. The following month, the UK government took legal action to overturn [JURIST report] the ECHR ruling.


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Convicted Nazi guard Demjanjuk claims US withheld evidence
Michael Haggerson on October 20, 2011 2:52 PM ET

[JURIST] Lawyers for convicted Nazi guard John Demjanjuk [NNDB profile; JURIST news archive] filed a request in the US District Court for the Northern District of Ohio [official website] for a hearing to determine whether the FBI failed to turn over evidence that could have assisted Demjanjuk's case. Demjanjuk was convicted in Germany [JURIST report] in May on more than 28,000 counts of accessory to murder [AP report]. Demjanjuk argues that the US government failed to turn over a 1985 FBI report suggesting that his Nazi ID card used against him at trial could potentially have been a Soviet-made fake. Demjanjuk requested a stay in his trial to investigate the FBI report [JURIST report] but was denied by the trial judge. After his conviction in May, Germany denied a request from Spain to have Demjanjuk extradited [JURIST report] so that he could stand trial in Spain on charges of genocide and crimes against humanity.
The five-year sentence Demjanjuk received in May was less than the six years sought by the prosecution [JURIST report], and he was released after being convicted. Judge Ralph Alt ordered his release because of his advanced age and because the verdict is not final. Demjanjuk's trial, which began [JURIST report] in November 2009, was marked by extensive delay. Last May, the court denied a motion to dismiss the charges [JURIST report] filed by the defense, which argued there was a lack of credible evidence. The court rejected the argument, saying they found the evidence against Demjanjuk to be strong. In October 2009, Demjanjuk was found fit to stand trial after the court rejected appeals relating to his health [JURIST reports], although the court limited hearings to no more than two 90-minute sessions per day. Demjanjuk fought a lengthy legal battle over his alleged involvement with Nazi death camps during World War II. He was deported to Germany after the US Supreme Court [official website] denied his stay of deportation [JURIST report].


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Iran denies UN report on increasing human rights violations
Michael Haggerson on October 20, 2011 2:15 PM ET

[JURIST] Iran's deputy ambassador to the UN, Eshagh al-Habib, on Thursday denied allegations in a recent UN report that human rights violations in Iran are on the rise [JURIST report]. Al-Habib criticized the report for being poorly sourced, non-neutral and simply untrue [Al Jazeera report]. The report cited an increase in persecutions among political activists and journalists, detention conditions for opposition leaders and their wives, the torture and mistreatment of detainees, the significant administration of the death penalty to people under 18 years of age and "exorbitant bail requirements" for human rights defenders and religious practitioners. However, UN Special Rapporteur on Iran Ahmed Shaheed, the author of the report, stated that he was encouraged by Iran's willingness to cooperate with him [UN News Centre Report] and that Iran "needs to be seen in a better light." He further focused on the need to maintain dialogue with Iran's political leaders in order to improve conditions in the country. The US issued a statement on Tuesday denouncing Iran's "'intensified' campaign of abuse" [press release]: "Under international law and its own constitution, Iran has committed to protect and defend the rights of its people, but officials continue to stifle all forms of dissent, persecute religious and ethnic minorities, harass and intimidate human rights defenders, and engage in the torture of detainees."
Iran has been heavily criticized for its alleged human rights abuses. Jailed Iranian journalist Isa Saharkhiz [Iran Press profile] in July urged [letter, DOC, in Persian] Shaheed to investigate prison conditions in Iran [JURIST report]. In May, rights groups decried [JURIST report] Iran's persecution of lawyers. In January, the International Campaign for Human Rights in Iran [official website] claimed that Iran is on an "execution binge" [JURIST report], killing one prisoner every eight hours. In January, prominent Iranian human rights lawyer Nasrin Sotoudeh was sentenced [JURIST report] to 11 years in prison. Sotoudeh was found guilty [Guardian report] of "acting against national security" and "making propaganda against the system" for which she will serve five and one years, respectively. She was the lawyer for Arash Rahmanipour, who was arrested for his role in the post-election protests on charges of moharebeh, or being an enemy of God. Rahmanipour was executed [JURIST report] in January 2010. Also in January, Iranian chief prosecutor Abbas Jafari-Dolatabadi delivered a speech at Tehran University indicating that he would prosecute opposition leaders [JURIST report] for political unrest that took place after the country's 2009 presidential election [JURIST news archive].


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Libya PM confirms Muammar Gaddafi killed by opposition fighters
Andrea Bottorff on October 20, 2011 1:24 PM ET

[JURIST] Libyan opposition forces on Thursday captured and killed former leader Muammar Gaddafi [BBC profile; JURIST news archive] in his hometown of Sirte, Libyan Prime Minister Mahmoud Jibril [official profile] confirmed at a press conference. Military forces loyal to the newly formed government, the National Transitional Council (NTC) [website], took control of Sirte [Al Jazeera report] on Thursday and soon after found, captured [video: graphic content] and killed Gaddafi. The cause of death is unknown, but eyewitnesses claim that he died from gunshot wounds [AP report]. Also on Thursday, Libyan Information Minister Mahmoud Shammam confirmed the death [Al Jazeera report] of Gaddafi's son, Mutassim Gaddafi. Officials have also announced the arrests of Gaddafi's son, Saif al-Islam Gaddafi and former Gaddafi spokesman Moussa Ibrahim. Libyan civilians and NTC officials celebrated the news of Gaddafi's death, and several world leaders expressed relief and support for Libya. UN Secretary-General Ban Ki-Moon [official profile] said the day marked "an historic transition" for the country and urged Libyans to stop fighting and promote peace [UN News Centre report].
Gaddafi's death marks the latest milestone in the Libya conflict [JURIST feature], which began in February [JURIST report] as part of a wider protest movement that had spread throughout the Middle East and North Africa. Gaddafi and his supporters have been on the run since August, when rebel forces supported by the NTC captured the capital city of Tripoli. Earlier in the summer, the International Criminal Court (ICC) [official website] had issued an arrest warrant [JURIST report] for Gaddafi for crimes against humanity, although some commentators suggested that Gaddafi should face trial in Libya [JURIST op-ed]. The UN Human Rights Council (UNHRC) [official website] published a 92-page report saying that Libyan authorities committed crimes against humanity [JURIST report] under Gaddafi's direct orders during the conflict, including acts constituting murder, imprisonment, and other severe deprivations of physical liberties, torture, forced disappearances, and rape "as part of a widespread or systematic attack against a civilian population with knowledge of the attack." Gaddafi ruled Libya as a dictator for 42 years after taking power in a coup, and was known for his eccentricity and for the tight control he kept over the country.


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ICC requests explanation from Malawi for failure to arrest Sudan president
Dan Taglioli on October 20, 2011 12:54 PM ET

[JURIST] The International Criminal Court (ICC) [official website] on Wednesday requested that the Republic of Malawi explain why that country's authorities failed to arrest Sudanese President Omar al-Bashir [case materials; JURIST news archive] during his widely reported visit there for a trade summit last weekend. Pre-Trial Chamber I of the ICC issued a resolution [decision, PDF; press release] that asks Malawi authorities to report "any observations" regarding the country's alleged failure to comply with cooperation requests sent by the ICC regarding arrest warrants for al-Bashir issued in 2009 and 2010. Malawi, being a state party to the Rome Statute since September 2002, and thus a member of the ICC, is under obligation to abide by such ICC cooperation requests in accordance with the statute. In addition to the cooperation requests issued generally, in anticipation of al-Bashir's arrival in Malawi, the ICC Registrar sent a note verbale to the Embassy of the Republic of Malawi in Brussels on October 13, reminding the nation of its legal obligations under the statute and asking for its cooperation with the arrest and surrender of al-Bashir. The note also invited Malawi to consult with the ICC over perceived difficulties in facilitating al-Bashir's arrest, but consultation by Malawi authorities has yet to take place. The ICC has issued two international warrants for al-Bashir's arrest on a total of 10 counts of genocide, war crimes and crimes against humanity in connection with the Darfur conflict [BBC backgrounder]. Under the Rome Statute, ICC member nations that do not comply with cooperation requests can be referred to the UN Security Council [official website] for non-cooperation.
Al-Bashir remains an extremely controversial figure in international politics for his actions during the Darfur conflict. Most recently, al-Bashir announced this month that Sudan will adopt an Islamic constitution [JURIST report]. Amnesty International (AI) [advocacy website], in a press release on the day of al-Bashir's visit, urged Malawi to arrest the Sudanese president [JURIST report] and surrender him to the ICC for prosecution. 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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Citigroup settles SEC fraud charges for $285 million
Dan Taglioli on October 20, 2011 11:39 AM ET

[JURIST] Citigroup Inc. [corporate website] on Wednesday announced a $285 million settlement to resolve charges [complaint, PDF; press release] brought by the Securities and Exchange Commission (SEC) [official website] that a subsidiary of the global financial services firm defrauded investors who bought toxic housing-related debt during the housing crisis. Citigroup Global Markets Inc. (CGMI), Citigroup's principal US broker-dealer, marketed and sold in 2007 a $1 billion collateralized debt obligation (CDO) that defaulted fewer than nine months after it closed. CGMI allegedly misled investors [Reuters report] about the strength of the the CDO, named Class V Funding III, and failed to reveal that the company "had exercised significant influence over the selection of $500 million of the assets" in the CDO portfolio, and that it had taken a short position in those assets, essentially meaning it had placed bets elsewhere in the financial markets that the CDO would fail. The SEC summarized in its complaint:By taking a short position with respect to the assets that it had helped select, Citigroup profited from the poor performance of those assets, while investors in Class V III suffered losses. The CDO securities on which Citigroup bought protection had a notional value of approximately $500 million, representing half of the Class V III investment portfolio. The marketing materials Citigroup prepared and distributed to investors did not disclose Citigroup's role in selecting assets for Class V III and did not accurately disclose to investors Citigroup’s short position on those assets. ... By engaging in the conduct described herein, [CGMI] violated Sections 17(a)(2) and (3) of the Securities Act of 1933 ... by negligently misrepresenting key deal terms. Citigroup allegedly represented that the collateral manager of the CDO, a unit at Credit Suisse Group AG [corporate website], had independently selected the assets, while in reality about half had actually been selected by CGMI with the intention of taking the short position. Upon default Class V Funding III left the investors with losses even though Citigroup netted $160 million in fees and profits. Under the terms of the settlement, which still requires approval from US District Judge Jed Rakoff in Manhattan, Citigroup will disgorge the $160 million of alleged improper fees and profits, plus $30 million of interest, and pay a $95 million fine. Credit Suisse has agreed to settle with the SEC for $2.5 million. Citigroup settled without admitting wrongdoing.
Citigroup's settlement is the third between the SEC and a major bank accused of marketing a CDO without disclosing a short position or allowing investors to take one. In June JPMorgan Chase & Co [corporate website] settled similar fraud charges [JURIST report] for $153.6 million. The settlement included a $133 million fine and $20.6 million representing fraudulent profits and interest. In July 2010, Goldman Sachs [corporate website; JURIST news archive] agreed to a $550 million settlement with the SEC to resolve charges [JURIST report] that the firm marketed a subprime mortgage product and made misleading statements and omissions to investors in early 2007. Of the $550 million settlement, $300 million was to be paid to the US Treasury and $250 million disgorged to harmed investors. The penalty was the largest against a financial company in SEC history. Additionally, in December 2010 Bank of America (BOA) [corporate website] settled with the SEC [JURIST report] for $137 million, although the case did not involve investor fraud charges. There BOA was charged with using anti-competitive transactions with 20 state municipalities, putting at risk the tax-exempt status of municipal securities by establishing fraudulent fair market values using "improper bidding practices" between 1998 and 2002.


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