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Legal news from Friday, November 4, 2011




EU competition regulator opens investigation into Samsung, Apple
Michael Haggerson on November 4, 2011 2:39 PM ET

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[JURIST] The European Commission [official website] has opened an investigation into whether Apple and Samsung Electronics [corporate websites] have breached EU antitrust laws in their dispute over smartphone patents. The investigation could potentially force Samsung to halt action [FOSS Patents report] against Apple over smartphone patents in the EU. The European Commission enforces Articles 101 - 109 [materials] of the Treaty on the Functioning of the EU (TFEU) [text, PDF; materials]. Article 102 of the TFEU prohibits "directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions" and "limiting production, markets or technical development to the prejudice of consumers." The EU patent system has a compulsory licensing regime under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) [materials]. TRIPs gives entities the freedom to negotiate licenses, but if they are unable to reach an agreement within a reasonable length of time then the government may impose a compulsory license under Article 31 [text]. Although both Samsung and Apple have been asked to provide additional information for the European Commission's initial investigation, commentators suggest that Samsung is the primary target of the investigation. The European Commission's investigation will likely revolve around whether Samsung has undertaken negotiations for a "fair, reasonable and non-discriminatory" licensing regime, or whether they are using their patent rights to attempt to impose a harsher licensing agreement on Apple. However, Apple in turn has also asserted intellectual property rights against Samsung. Both Samsung and Apple [JURIST reports] have filed complaints with the US International Trade Commission (USITC) [official website] attempting to stop the importation of the others smartphones and tablets.

The European Commission's investigation is the latest installment in the ongoing conflict between the two companies. In June Apple filed suit [JURIST report] in the Seoul Central District Court against the "Galaxy" line. In April, Apple also filed a similar suit against Samsung [JURIST report] in the US. Samsung countered [JURIST report] by filing patent infringement suits against Apple in three different countries, alleging that Apple had infringed its technology related to energy consumption and preventing data transmission errors. Though competitors, Samsung and Apple rely on each in business. Apple is the largest buyer of computer and phone chips, while Samsung is the world's largest manufacturer of those chips. In fact, after Apple's initial lawsuit against Samsung, Apple indicated a willingness to continue working with Samsung [Bangkok Post report] as a partner.




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UN rights committee concerned about Iran executions, minority rights
Rebecca DiLeonardo on November 4, 2011 1:48 PM ET

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[JURIST] The UN Human Rights Committee [official website] expressed concern [UN News Centre report] Friday over the protection of individuals' rights in Iran. The committee, composed of independent experts, has recently examined Iran's progress in adopting the International Covenant on Civil and Political Rights (ICCPR) [text]. Committee members expressed concern about the discrimination and arrest of religious minorities and homosexuals, as well as the frequent use of capital punishment in Iran. The committee's concerns follow a UN report [text, PDF] from last month that suggested human rights violations in Iran are on the rise [JURIST report]. The report cited an increase in persecutions among political opposition and journalists, 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. Iran's deputy ambassador to the UN, Eshagh al-Habib, criticized the report [JURIST report] for being untrue and biased. Despite these accusations, committee member Michael O'Flaherty from the Office of the High Commissioner for Human Rights [official website] said he was hopeful the investigation would have a positive impact on human rights conditions in Iran.

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] UN Special Rapporteur on Iran Ahmed Shaheed to investigate prison conditions in Iran [JURIST report]. In May, rights groups decried Iran's persecution of lawyers [JURIST report]. In January, the International Campaign for Human Rights in Iran 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 to 11 years in prison [JURIST report]. Sotoudeh was found guilty 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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China mining companies in Zambia violating labor laws: HRW
Sarah Posner on November 4, 2011 11:48 AM ET

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[JURIST] Chinese copper mining companies in Zambia routinely violate national and international labor standards [press release], Human Rights Watch (HRW) [advocacy website] reported [text, PDF] Thursday. The report describes poor health and safety standards, regular 12-hour and 18-hour work shifts, and anti-union activity. Workers also reportedly face the threat of being fired if they refuse to work under unsafe conditions. Although not reported to the government, injuries and health standards are in violation of Zambian and international labor law. The report is based on three field investigations and interviews conducted between November 2010 and July 2011. The report states:
Human Rights Watch urges the new Sata government to adopt the necessary measures to enforce Zambia's labor laws, and to ensure its laws conform with international standards. To begin, Human Rights Watch recommends that the government work to improve mine safety by ensuring there is sufficient staffing and equipment at the Mines Safety Department (MSD). Many inspectors have left their posts to pursue employment in the private sector, where remunerations are higher, and a government imposed hiring freeze has crippled the body's effectiveness.
HRW recommends that the Mines Safety Department increase the fines imposed against violation of safety regulations or labor laws by mining operations to deter future violations. Zambia's president, Michael Sata, elected in September, has been an outspoken critic of Chinese labor practices and campaigned to protect worker's rights and ensure that companies follow Zambia's labor laws.

China has faced criticism from various rights groups for human rights violations. On Tuesday, UN experts expressed concerns [JURIST report] over human rights restrictions on Tibetan Buddhist monasteries in China's Sichuan province. In October, three human rights groups on called for the release [JURIST report] of Nobel peace Laureate Liu Xiaobo [BBC profile; JURIST news archive], imprisoned on an 11-year sentence [JURIST report] in China for "inciting subversion of state power" and dissidence. Amnesty International, HRW and Chinese Human Rights Defenders released simultaneous press briefings urging freedom for Liu, and his wife Liu Xia, who remains under house arrest. In July, Senior Researcher in the Asia Division of Human Rights Watch, Phelim Kine, argue that in order for the Chinese government to legitimately address human rights concerns, it must acknowledge the shortcomings of previous efforts and ensure that government officials and security forces follow and enforce human rights protections [JURIST comment].




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Cuba to allow buying and selling of houses
Jaimie Cremeans on November 4, 2011 11:18 AM ET

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[JURIST] The Cuban government on Thursday announced the passage of a bill that will modify its housing law to allow permanent residents of the country to buy and sell their homes [AIN report, in Spanish] at will. The new law, which will take effect on November 10, will still limit home ownership to one house in the city and one seasonal house in the country, but will allow Cubans the freedom to buy, sell and trade these homes at their discretion. All transactions will take place through Cuban bank accounts [AP report] so they can be regulated, and parties will be required to obtain a seal of notary for every transaction. There will also be bank commission collected for each sale and a tax of 8 percent of the value of the property.

Cubans have not had the right to buy and sell houses since 1959 when former president Fidel Castro took over. President Raul Castro promised in May [NYT report] that this right would come by the end of the year. The new law is expected to help boost the Cuban economy [NYT report], along with other regulations promised by Raul Castro, such as more flexibility in car sales and emigration. Raul Castro insisted in a report [text] to the Cuban Congress in April these changes are not moves toward capitalism, but simply restructuring of the socialist system that will allow the state to spend more resources on administering social services and less on regulating business.




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Ukraine parliament delays vote on law that could release ex-PM Tymoshenko
Matthew Pomy on November 4, 2011 10:32 AM ET

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[JURIST] The Ukrainian Parliament [official website] voted Friday to delay debate [press release] on a draft law that would change the way the criminal code punishes economic and administrative crimes and could result in the release of former prime minister Yulia Tymoshenko [JURIST news archive]. Instead of punishing certain economic crimes with imprisonment, the proposed law would instead impose a fine. This could mean the controversial seven-year sentence given to Tymoshenko in October would be reduced to a fine. The draft law entitled "On introduction of amendments into some legislative acts of Ukraine (as for humanization of responsibility for crimes in the sector of economic activity)" (No. 9221) was proposed by President Viktor Yanukovych [UNA report] earlier this year and was passed in its first reading. It was being brought before parliament for a final debate and vote when members of Tymoshenko's Bloc-Batkivschyna faction successfully delayed its consideration until next week. The draft law amends various sections [UNA report] of the Ukrainian criminal code, including Article 365 [text], under which Tymoshenko was convicted, in a way that would decriminalize economic and administrative crimes [Observer report].

Tymoshenko was convicted [JURIST report] in October of abusing her power when she signed a gas agreement with Russia that was alleged to have violated Article 365 of the Criminal Code of Ukraine. Her prosecution has been highly controversial [JURIST comment] and has draw harsh criticisms from all over the world. The EU has condemned [JURIST report] her conviction as politically motivated and has indicated that it could harm Ukraine's bid for EU accession. In June, Tymoshenko filed a complaint [JURIST report] with the European Court of Human Rights 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 Yanukovych. 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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Syria offers amnesty to insurgents who surrender
Brandon Gatto on November 4, 2011 10:17 AM ET

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[JURIST] Syria announced on Friday that insurgents who have revolted against the government of president Bashar al-Assad [Al Jazeera profile] may qualify for amnesty if they turn themselves into authorities by next Saturday, November 12. This plea follows what have been some of the deadliest clashes of a movement that began in Syria last March [JURIST report], and have left at least 13 people dead over the past few days. According to a statement [press release, in Arabic] issued by the Syrian Arab Republic's Ministry of Interior [official website, in Arabic], the government is calling on "citizens who carried weapons, sold them, delivered them, transported them or funded buying them, and did not commit crimes, to hand themselves into the nearest police station." Given the recent violent turn of the once peaceful protests, the ministry added that it "assures those who turns themselves in ... will then be freed immediately and it will be considered as a general amnesty."

The ministry's offer comes after Syrian protesters have long endured harsh treatment from authorities. In August, Amnesty International [advocacy website] reported that 88 Syrians were killed [JURIST report] while in custody as a result of their protest, and the UN Office of the High Commissioner for Human Rights [official website] has reported on several occasions that Syrian forces may be committing crimes against humanity [JURIST report]. This is also not Syria's first attempt to quell the uprising with the promise of amnesty. Last June, al-Assad granted amnesty [JURIST report] for crimes committed during protests before June 20, but added that serious offenses and private prosecutions were not included in the pardon. Prior to that, the president also attempted to grant amnesty to political prisoners [JURIST report], including those of the previously banned Muslim Brotherhood [party website], but was overturned by opposition leaders.




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Ohio top judge questions application of death penalty law
Hillary Stemple on November 4, 2011 8:55 AM ET

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[JURIST] The Chief Justice of the Ohio Supreme Court, Maureen O'Connor [official profile], on Thursday opened the first meeting [press release] of the state's death panel review committee by reiterating that the purpose of the committee is not to question whether Ohio should have the death penalty [JURIST news archive], but rather to provide "guidance on the current laws on the subject, the practices in other jurisdictions, the data, the costs, and many other aspects associated with the death penalty." O'Connor announced the formation of the committee [JURIST report] in September, stating that it would be responsible for ensuring that the law is "administered in the most fair, efficient, and judicious manner possible." The committee, a joint task force between the Supreme Court of Ohio and the Ohio State Bar Association [official websites], is being chaired by Retired Judge James Brogan of the Ohio Second District Court of Appeals and includes judges, prosecuting attorneys, criminal defense counsel, legislators and academics. During the committee's opening meeting Brogan questioned the application of the death penalty law, citing prosecutorial discretion in seeking the death penalty and the role economics could play in the decision making process. Brogan also indicated that the committee would address whether the standard of proof should be heightened to a "beyond all doubt" standard in death penalty cases as opposed to the "beyond a reasonable doubt" standard used in other criminal cases. The committee will be reviewing death penalty laws and procedures from other jurisdictions and analyzing the data and costs associated with those laws. They will also review information included in the American Bar Association's Death Penalty Moratorium Implementation Project [materials] in order to "identify areas in need of action and recommend the course of action." Based upon their findings, the committee will develop a comprehensive set of recommendations, and present their proposals next year to the state for consideration.

Ohio is currently under an unofficial death penalty moratorium [AP report] as the federal courts consider the constitutionality of the state's death penalty procedure. In December 2010, the Ohio Supreme Court rejected a challenge [JURIST report] to the lethal injection method of execution and indicated that they would not hear further cases regarding lethal injection until the Ohio General Assembly [official website] explicitly expanded state review of death penalty cases. In November 2009, Ohio adopted a single-drug lethal injection protocol [JURIST report], replacing the previously used three-drug method. The single-drug lethal injection method has faced numerous challenges, with one case reaching the US Supreme Court [official website]. In March 2010, the Supreme Court refused [JURIST report] to stay the execution of an Ohio inmate challenging the state's single-drug execution protocol. Ohio conducted its first execution [JURIST report] using the new procedure in December 2009. The change in procedure came after the state undertook a review [JURIST report] of its lethal injection practices in September 2009, following the planned execution of inmate Romell Broom failed when a suitable vein for the drugs' administration could not be found.




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Bangladesh urged to stop harassment of defense counsel at war crimes tribunal
John Paul Putney on November 4, 2011 8:30 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Wednesday urged [press release] Bangladesh to stop the harassment of defense counsel and witnesses to preserve legitimacy of the International Crimes Tribunal in Bangladesh (ICTB) [official Facebook page]. HRW pointed to reports that defense counsel and witnesses have been threatened with violence and arrest in order to impede them from participating in the trials. Asia director Brad Adams called for immediate action: "Harassment of defense counsel and witnesses further tarnishes a flawed process. If the Bangladeshi government wants these trials to be taken seriously it must ensure that the rights of the accused are fully respected. That means making sure that lawyers and witnesses don't face threats or coercion."

Earlier this week, the ICTB ordered the prosecution to submit formal charges [JURIST report] against four leaders of Jamaat e Islam (JI) who are suspected of war crimes committed during the 1971 Bangladesh Liberation War [GlobalSecurity backgrounders] against Pakistan. Also this week, the ICTB delayed [JURIST report] the start of its first war crimes trial. The ICTB was slated to hear arguments in the case of Delwar Hossain Sayedee, leader of JI. Sayedee's lawyer asked the tribunal to review the charges against his client. The tribunal accepted 20 of 31 charges including allegations of aiding Pakistani soldiers, committing murder and rape, torching villages, looting and forcibly converting Hindus to Islam. Sayedee has denied the charges. The trial is scheduled to resume on November 20. In July, Bangladeshi prosecutors filed the underlying war crime charges [JURIST reports] in the ICTB against Sayedee.




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Canada high court refuses to hear Abdullah Khadr extradition appeal
John Paul Putney on November 4, 2011 7:27 AM ET

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[JURIST] The Supreme Court of Canada [official website] on Thursday declined to hear the government's appeal in the extradition of accused al Qaeda arms supplier Abdullah Khadr, bringing to a close efforts to extradite him to the US. The appeal was brought by Canada's attorney general on behalf of the US government [CP report] which sought to extradite Khadr to face charges in the US of providing weapons to al Qaeda [AP report] to be used against coalition forces in Afghanistan. The government argued that the extradition was required by international obligations [AFP report]. In line with established practice, the court did not state reasons for refusing to hear the case. Abdullah Khadr is the older brother of Omar Khadr [DOD materials; JURIST news archive], the youngest detainee at Guantanamo Bay [JURIST news archive].

In May, the Court of Appeal for Ontario [official website] upheld a decision [JURIST report] to halt extradition proceedings for Abdullah Khadr. According to the appeals court, a Toronto judge was right to release Abdullah Khadr [JURIST report] last summer because extraditing him to the US would be tantamount to ignoring that he was allegedly subjected to torture in Pakistan at the behest of the US. Abdullah Khadr was detained by Canadian law enforcement in summer 2005 on the basis of a US warrant. In February 2006, the US government formally requested his extradition [JURIST report] from Canada. He was indicted [JURIST report] in 2006 by a US federal grand jury on four counts connected to his alleged procurement of destructive devices to be used against US forces in Afghanistan in 2003 and faces a possible life sentence and a USD $1,000,000 fine.




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