JURIST - Paper Chase: Sunday, May 20, 2012

[JURIST] Blind Chinese human rights activist Chen Guangcheng [BBC profile; JURIST news archive] arrived in New York on Saturday, resolving a US-China struggle that began when Chen escaped house arrest [JURIST report] last month and fled to the US embassy in Beijing, seeking protection from Chinese authorities. In a press conference Saturday evening Chen thanked the US for its help and the Chinese government for its cooperation and its promise to respect his citizenship rights in the future. Chen left the US embassy [JURIST report] earlier this month out of fear that the Chinese government would hurt his family if he remained secluded. The larger relationship between the US and China was strained throughout Chen's struggle to obtain an agreement from the Chinese government guaranteeing the safety of both himself and his family, as the US backed Chen and pushed for China to agree to treat him humanely. Chen has accepted a fellowship to study law at New York University [official website] and has pledged to eventually return to his home country.

Chen is an outspoken activist who was originally wanted in his rural town for exposing forced abortions and other human rights abuses. Before escaping to the US Embassy Chen was kept under house arrest after he was released from prison in 2010. Chen served four years in prison [JURIST report] for damaging property and "organizing a mob to disturb traffic." During his house arrest Chinese authorities increased surveillance of his home and family, bringing into question the authenticity of his release [press release]. Chen's family members have claimed that the activist suffers from health problems caused by mistreatment he received while in prison, including beatings and repeated food poisonings [WP report]. Chen claims that the charges were retribution for his documentation of forced sterilizations and abortions performed by Chinese officials to enforce China's one-child policy, and has been consistently detained [HRW backgrounder] by Chinese authorities since 2005.

[JURIST] The US District Court for the District of Utah [official website] on Tuesday overturned [order, PDF] Utah Code §§ 76-10-1206 and 76-10-1233 [text], major parts of a Utah law that regulate electronic materials potentially harmful to minors. Originally passed in 2005, the law was challenged [JURIST report] by the American Civil Liberties Union of Utah [advocacy website] as overbroad and in violation of the First Amendment [Cornell LII backgrounder]. Judge Dee Benson held that the First Amendment precludes prosecution under § 1206 for simply posting material harmful to minors on a generally accessible website. The decision limits the application of the law such that a person cannot be prosecuted under § 1206 unless that person directs harmful material to a specific minor recipient either intentionally or knowingly, or negligently by not first determining whether or not the recipient is a minor. Benson also ordered that no one be prosecuted under § 1233, which requires that Internet service providers restrict minors' access to harmful materials, as long as the content uses words or images that can be picked up by reasonably priced commercially available software that can screen and block access to such materials. The ruling does not affect material that constitutes child pornography, "the production, possession, possession with intent to distribute, [or] distribution" of which is not protected by the First Amendment and is always prohibited by Utah state law [§ 76-5b-103, text].

In 2008 the US Court of Appeals for the Third Circuit [official website] affirmed a district court's decision [JURIST reports] to strike down the federal Child Online Protection Act (COPA) [text], which held website operators who made sexually obscene materials available to children civilly and criminally liable. That court found that COPA did not pass strict scrutiny because it was not narrowly tailored to the legitimate interest in protecting children, as there were less restrictive means available. In 2004 the US Supreme Court made a decision [opinion, PDF] stating that COPA probably was a violation of the First Amendment, but remanded it back to a federal district court to make factual findings on what technology was available to parents to filter the content to which their children have access.

[JURIST] UN Special Rapporteur on torture Juan E. Mendez [official profile; press release] concluded his nine-day visit to the Republic of Tajikistan [BBC profile] on Friday, stating that he was pleased with the country's recent modifications designed to aid in eradicating torture, but that mistreatment of suspects remains the norm. Mendez is especially encouraged by the recent introduction of a new criminal provision that defines torture and provides penalties for it. He does believe, however, that "a relatively low penalty does not offer a strong disincentive to commit torture." Mendez urged the total elimination of pressure tactics on detainees to elicit confessions, including threats, beatings and applying electric shock, and hopes that the regulation of the legal profession will achieve this goal by finding ways of "meaningful enforcement":

Amendments in substantive and procedural law, and internal regulations and instructions issued by various agencies are a welcome change ... It is difficult at this stage to assess their actual impact on the ability of citizens to enjoy and enforce their right to physical and mental integrity under all circumstances. They will require sustained effort and commitment from the highest levels of authority and a clear pledge to "zero tolerance" of torture ... If there is no recognition that there is a problem with mistreatment, whether systematic or not, mistreatment is not likely to go away.

Mendez was also encouraged by the improvement of the conditions of pre-trial detention facilities, as they offer food and work opportunities, contact among inmates and medical and religious services. He was, however, disturbed by the extremely limited allowance of contact with inmates' family members. Following his visit Mendez will offer the Tajik government a report with recommendations to aid it with eliminating torture and ill-treatment.

Poor prison conditions continue to draw criticism worldwide. In October Mendez recommended that governments ban solitary confinement for juveniles and prisoners with mental disabilities [JURIST report]. In July jailed Iranian journalist Isa Saharkhiz urged UN Human Rights Special Rapporteur Dr. Ahmad Shaheed to investigate prison conditions in Iran [JURIST report], alleging that the maltreatment of both political and general prisoners in Iran amounts to crimes against humanity. In California in June at least 400 inmates at Pelican Bay State Prison initiated a hunger strike [JURIST report] in protest of solitary confinement. Inmates of Pelican Bay's Security Housing Unit (SHU), a long-term isolation ward where one-third of the prison's population is held in solitary confinement, instigated of the strike. The Washington Supreme Court ruled 7-2 in January that holding death row inmates in solitary confinement indefinitely [JURIST report] is not an impermissible increase in the severity of punishment.

[JURIST] Lockerbie bomber Abdelbaset Ali Mohmed al-Megrahi [BBC News profile] died in Libya on Sunday after losing his battle with cancer. His brother reported that Megrahi, 60, died in his home in Tripoli [BBC report] after his health deteriorated rapidly due to his condition. Megrahi was a former Libyan intelligence officer and the only person convicted of the bombing of Pan Am Flight 103 [BBC News backgrounder] over the town of Lockerbie, Scotland, in December 1988. Megrahi and another Libyan were indicted in Scottish and US courts in 1991, but Libya refused to extradite them until an agreement was reached in 1999. Despite being sentenced to 27 years in prison, Megrahi at all times denied his involvement in the Lockerbie bombing, which killed 270 people and remains the deadliest terrorist incident ever to take place on British soil. Scotland released Megrahi to Libya [JURIST report] in 2009 on humanitarian grounds after his diagnosis of terminal prostate cancer. His funeral is scheduled to take place on Monday at Tripoli's main cemetery.

Megrahi's 2009 release was controversial, condemned by both US officials and the Scottish Parliament [JURIST report]. Responding to criticism of his decision to release Megrahi, Scottish Justice Secretary Kenny MacAskill [official website] claimed he acted in good faith, denying that there was an arrangement [Telegraph report] for Megrahi to drop his appeal in return for his release. In August the Scottish Crown defended its decision [JURIST report] to release Megrahi, prompting Scottish prosecutors to ask Libya's National Transitional Council (NTC) [official website] for any evidence, witnesses or assistance they could provide to help track down others involved in the bombing. In August 2010 Scottish Labour Party officials called for the publication of all medical evidence related to Megrahi's release [JURIST report]. Earlier in 2010 US lawmakers called for an investigation [JURIST report] into the role that oil company British Petroleum (BP) [official website] may have played in Megrahi's release.