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Legal news from Thursday, May 24, 2012




Papua New Guinea top judge arrested for sedition
Jaclyn Belczyk on May 24, 2012 2:40 PM ET

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[JURIST] Police in Papua New Guinea on Thursday stormed the country's supreme court and arrested the chief justice on charges of sedition. Chief Justice Salamo Injia was arrested after the court ruled for the second time that former prime minister Michael Somare should be reinstated. There has been a struggle for power since last August when Prime Minister Peter O’Neill took office after Somare was ruled ineligible because of an extended absence due to illness. The Supreme Court ruled in December that Somare should be reinstated and ruled again this week that Somare should serve as caretaker prime minister during upcoming elections. O'Neill has refused to accept the court's rulings, creating a standoff with the judiciary. Injia was released on bail [Reuters report] Thursday and is due to appear in court Friday.

Last month UN High Commissioner for Human Rights Navi Pillay [official website] expressed concern [JURIST report] about threats to rule of law [press release] in Papua New Guinea. Pillay's concerns stemmed from actions taken by the government that she believed breach international human rights standards and adversely affect the judiciary and its ability to act independently. Pillay said the actions of both the legislature and the executive have curtailed the power of the judiciary and it can no longer function independently. In March, the Parliament passed a bill to refer judges to a system for dealing with misconduct. When the Supreme Court held that such a system was unconstitutional the legislature passed another law creating criminal sanctions [amendment text] against anyone who would not comply with the first law.




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Tunisia prosecutor seeks death penalty for ousted president
Dan Taglioli on May 24, 2012 1:54 PM ET

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[JURIST] A Tunisian military prosecutor called Wednesday for the death penalty in the trial of former Tunisian president Zine al-Abidine Ben Ali [BBC profile; JURIST news archive]. Currently exiled to Saudi Arabia, Ben Ali is being tried in absentia in a military court for ordering the shooting deaths of dozens of civilian protesters [CNN report] during last year's Tunisian revolution. It is the first time the death penalty has been sought against the former dictator, who is being tried only for "complicity in voluntary homicide" [AFP report] rather than direct involvement, and has been already sentenced to more than 66 years in prison on other charges ranging from embezzlement to drug trafficking. The prosecutor is also seeking the maximum penalties short of death for Ben Ali's co-defendants, who include ex-government officials such as former interior minister Rafik Kacem and former director general of public security Lotfi Zwawi. Ultimately more than 200 protestors died over the course of the uprising that ousted Ben Ali from power. The ex-president has denied [JURIST report] the numerous charges against him.

Ben Ali left office and the country in January 2011, seeking exile in Saudi Arabia during the protests. Just under one year later the military tribunal convened and began trying Ali for his alleged orders to shoot protesters, for which the prosecutor has now sought the death penalty. Ben Ali and his wife were tried and convicted [JURIST reports] in absentia on numerous charges related to corruption, including theft and unlawful possession of money and jewelry, and were sentenced to 35 years in prison and fined US$65.6 million. Justice Minister Lazhar Karoui Chebbi [profile, in French] announced the issuance of an arrest warrant for Ben Ali in January 2011, but the country has not received a response to its requests to extradite [JURIST reports] the former leader from Saudi Arabia.




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EU court rejects MasterCard challenge over fees
Jaclyn Belczyk on May 24, 2012 1:18 PM ET

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[JURIST] The European General Court [official website], the EU's second highest court on Thursday rejected [judgment] a challenge by MasterCard [corporate website] over its cross-border credit card fees. The court upheld a decision by the European Commission [official website] that the fees violate EU antitrust rules. The commission welcomed the ruling, but MasterCard expressed disappointment [press releases]:
MasterCard balances the interests of both consumers and retailers, so that each party pays its fair share of the costs for the benefits it receives. Today's ruling, if it stands, would upset that sharing and tip the balance decidedly against consumers. It would also threaten the continued delivery of the most advanced electronic payment technologies in Europe which, in turn, are essential to facilitating business and driving economic growth.
MasterCard plans to appeal the ruling.

In 2010 the US Department of Justice (DOJ) [official website] filed a civil antitrust lawsuit [JURIST report] against MasterCard, Visa and American Express [corporate websites]. The lawsuit challenged rules utilized by the companies that prevented merchants from providing discounts and rewards for using credit cards with lower merchant fees. The DOJ contended that these rules unfairly inflate costs for both consumers and merchants. Visa and MasterCard agreed to a settlement that required the companies to allow merchants using their cards to express a preference for types of payments accepted, to offer discounts to consumers for using a particular card or type of payment and to provide consumers with information regarding the costs incurred by the merchant when a particular type of credit card is used. In 2008 Visa and Mastercard settled an antitrust suit [JURIST report] with Discover Financial Services [corporate website] for $2.75 billion. The settlement was the result of a 2004 lawsuit filed by Discover after a DOJ suit [opinion] determined Visa and Mastercard were in violation of section 1 of the Sherman Antitrust Act by prohibiting banks from using Discover's services.




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UN panel: Syria government, opposition both violating human rights
Max Slater on May 24, 2012 12:05 PM ET

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[JURIST] Both the Syrian government and anti-government groups are killing opponents, torturing children as young as 10 years old and committing other human rights abuses, a UN-appointed group of human rights experts reported [text, PDF] Thursday. The report, issued by the three-member Independent International Commission of Inquiry on Syria, declared that Syrian security forces are predominantly responsible for the violence:
Despite the human rights imperative to employ lethal force only as a last resort to protect life, state security forces continued to use lethal force against anti-government demonstrations in Idlib, Homs, Aleppo, Hama, Damascus and Dar'a and in numerous villages throughout the country. The Commission recognizes that many such protests were accompanied by armed groups, who have described their role as providing protection for the demonstrators. The resulting clashes were deadly for demonstrators, members of these armed groups and security forces alike, yet too-often civilians bore the brunt of the violence.
While the report primarily blamed Syrian authorities for the violence, it also criticized armed anti-government groups for unlawfully killing members of the Syrian military as well as suspected informers.

The international community has continued to call for end to the violence in Syria. In April, the UN Security Council [official website] approved a resolution [JURIST report] to send 300 unarmed soldiers and civilian aid to Syria to implement a peace plan. Earlier in April, Human Rights Watch [advocacy website] released a report claiming the Syrian government has executed more than 100 civilians [JURIST report] and opposition fighters during recent attacks. Also in April UN Secretary-General Ban Ki-Moon [official profile] reaffirmed his call for an end to the violence and condemned attacks [JURIST report] by pro-government troops against civilians. In March the UN Human Rights Council [official website] passed a non-binding resolution [JURIST report] condemning Syrian authorities for ongoing bloodshed and violations of human rights. This official condemnation from the rights body came after UN High Commissioner for Human Rights Navi Pillay [official profile] demanded a cease-fire [JURIST report] in late February.




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ACLU sues DOJ over surveillance information
Jaclyn Belczyk on May 24, 2012 11:50 AM ET

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[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] filed a Freedom of Information Act (FOIA) [official website] lawsuit [complaint, PDF; press release] against the US Department of Justice (DOJ) [official websites] Wednesday seeking information on the use of electronic surveillance tools. At issue are tools called pen registers and trap and trace devices which allow law enforcement to monitor phone calls, emails and websites visited under the Pen Register Act [text]. The attorney general is required to report annually to Congress about its use of these surveillance tools, but the ACLU claims that these reports are incomplete because they don't include law enforcement agencies within the DOJ. The ACLU filed a FOIA request [text, PDF] in February but says it has not yet received a complete response. The lawsuit seeks the release of data and reports from 2010 and 2011 on the federal government's use of pen registers and trap and trace devices as well as any documents shedding light on failures to submit those data and reports to Congress.

The ACLU has long been critical of government surveillance programs. Earlier this week the US Supreme Court [official website] granted certiorari [JURIST report] Monday in Clapper v. Amnesty International USA [docket] to determine whether plaintiffs have standing to challenge a federal eavesdropping law. The ACLU, one of the respondents in the case, expressed hope [press release] that the Supreme Court would affirm the Second Circuit and allow the lawsuit to proceed. In September the ACLU released a report [text, PDF] claiming that the US is diminishing its "core values" with regard to various counterterrorism measures [JURIST report] put in place during the 10 years since the 9/11 attacks [JURIST news archive]. To support this contention, the report cited to US policies regarding indefinite military detention for terrorism suspects, the use of torture on terrorism suspects and enemy combatants, racial and religious profiling, and domestic surveillance and wiretapping.




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Federal appeals court rules on legal definition of piracy
Jaclyn Belczyk on May 24, 2012 10:39 AM ET

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[JURIST] The US Court of Appeals for the Fourth Circuit [official website] ruled Wednesday that the legal definition of maritime piracy [JURIST news archive] includes an armed attack to hijack a ship, even if the attempt is unsuccessful. In one case, the court upheld [opinion, PDF] the convictions and life sentences [JURIST reports] of five Somali pirates who attacked the USS Nicholas [official website] in April 2010. The appeals court rejected their contention that the definition of piracy as defined by the law of nations under 18 USC § 1651 [text] does not include violence or aggression committed on the high seas. In a second case, the court overturned [opinion, PDF] a lower court decision to dismiss piracy charges [JURIST report] against five Somali men accused of involvement in the April attack on the USS Ashland [official website] in the Gulf of Aden. The appeals court remanded the case to the US District Court for the Eastern District of Virginia [official website].

A number of countries around the world have been making attempts to solve the problem of maritime piracy. Earlier this week a United Arab Emirates court sentenced 10 Somali pirates [JURIST report] to 25 years in prison. Also this week six accused Somali pirates went on trial [JURIST report] in a Paris court for taking 30 crew members hostage in 2008 on the ship Le Ponant in the Gulf of Aden. The US government in March handed over [JURIST report] 15 suspected Somali pirates it captured in January to the Republic of Seychelles for prosecution. Italy ordered its first international piracy trial in February against nine Somali pirates, while France began its first international piracy trial [JURIST reports] in November. In October the UN Security Council adopted a resolution encouraging states to criminalize and punish piracy after maritime piracy reached an all-time high [JURIST reports] last year. The UN also donated $9.3 million [JURIST report] in 2010 to fund piracy courts in Seychelles and Kenya, the only two countries that have created such courts.




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Tunisia to extradite Libya ex-PM for trial
Sarah Posner on May 24, 2012 10:26 AM ET

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[JURIST] The Tunisian government announced Tuesday that the country would extradite former Libyan prime minister Al Baghdadi Ali al-Mahmoudi [JURIST news archive], after Libya guaranteed that al-Mahmoudi would have a fair trial. The conditions [Tripoli Post report] that Tunisia set for al-Mahmoudi's extradition to Libya is the guarantee that al-Mahmoudi have the right to a defense and that his human rights are respected. Al-Mahmoudi was the head of government under the regime of Muammar Gaddafi [BBC obituary; JURIST news archive], who was killed last October by opposition forces. Al-Mahmoudi has been in Tunisian custody since his arrest [AP report] in southern Tunisia last September while trying to get to Algeria. Al-Mahmoudi's lawyer along with various human rights groups, worry that the former prime minister will be executed [AFP report] if he is returned to Libya. Al-Mahmoudi began a hunger strike last Saturday after hearing that the Tunisian prime minister was in favor of his extradition. Libya currently has two extradition requests seeking the return of al-Mahmoudi to stand trial in Libya. Assuming that Libya meets the necessary guarantees, al-Mahmoudi's extradition will likely take place within the next few weeks.

In February, a Tunisian court dropped charges [JURIST report] against al-Mahmoudi for illegally entering the country, but the former figurehead remains in jail until a final decision on his extradition to Libya. The court dismissed the charges after determining that al-Mahmoudi had lawfully crossed into Tunisia from Libya. Al-Mahmoudi's lawyer has indicated that he is attempting to have him released from custody while awaiting the extradition process. In January, the Tunisian League for the Defense of Human Rights, Amnesty International and Human Rights Watch [advocacy websites], among other human rights groups, urged Tunisia not to extradite [JURIST report] al-Mahmoudi because he would be "at a real risk for torture" if returned to Libya. At the time, reports indicated that al-Mahmoudi feared for his safety and claimed to be the sole possessor of Libyan state secrets following Gaddafi's death in October [JURIST reports].




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Bahrain to address human rights record
Michael Haggerson on May 24, 2012 9:58 AM ET

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[JURIST] Bahrain informed the UN Human Rights Council (UNHRC) [official website] on Wednesday that it would seek to address its controversial human rights record. Bahrain stated that it would consider several measures [AP report], including ceasing to torture prisoners, releasing political prisoners and joining the International Criminal Court (ICC) [official website]. In total, Bahrain stated that it would consider 176 recommendations submitted by other countries. Bahrain agreed to consider the recommendations as part of its periodic review [materials] as a member of the UNHRC. One of the political prisoners Bahrain has agreed to consider releasing is Abdulhadi Al-Khawaja [BBC profile; JURIST news archive] who was convicted [JURIST report] of terrorism-related charges in June 2011 and sentenced to life in prison. Al-Khawaja has been on hunger strike [JURIST report] for over three months.

Bahrain's human rights record has been heavily criticized. Earlier this month human rights activist Nabeel Rajab, the president of the Bahrain Center for Human Rights (BCHR) [advocacy website], was arrested [JURIST report] for messages he posted on Twitter [website] criticizing Bahrain's Interior Ministry [official website, in Arabic]. The BCHR has been critical of the Bahraini regime's response to protests and demonstrations in Bahrain [BBC backgrounder] which have been ongoing since February 2011 [JURIST report]. Also this month Human Rights Watch [advocacy website] urged Bahrain to immediately release [JURIST report] the leaders of last year's anti-government protests, including Al-Khawaja. In April four independent UN human rights experts called for the immediate release [JURIST report] of Al-Khawaja over concerns that his conviction was related to his work promoting human rights.




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Federal jury finds for Google in dispute with Oracle
Michael Haggerson on May 24, 2012 8:56 AM ET

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[JURIST] A federal jury in the US District Court for the Northern District of California [official website] found on Wednesday that Google [corporate website] did not infringe [verdict slip, PDF] Oracle [corporate website] patents. However, the jury split [JURIST report] on the copyright phase of the trial over whether Google's use could be considered "fair use." Oracle alleged that Google's use of Java in its Android OS violated Oracle's patents and copyrights. Oracle sought up to $1 billion in damages. Because the jury split on the copyright issue, Oracle may get the opportunity to retry [Ars Technica report] it, but there will not be a damages phase of the trial. The jury strongly favored Google [Ars Technica report], according to the jury foreman.

The case went to trial [JURIST report] last month after settlement negotiations broke down. In addition to defending against patent claims, Google has also been under fire recently regarding its new privacy policy [JURIST news archive], which came into effect in March. EU data authorities are concerned [JURIST report] about the sharing and combination of personal data across services and its compliance with European data protection legislation.




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Somali pirates sentenced to life in UAE
Maureen Cosgrove on May 24, 2012 8:29 AM ET

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[JURIST] Ten Somali pirates were sentenced to 25 years in prison on Tuesday in the Abu Dhabi Federal Criminal Court of First Instance. The men were convicted of highjacking the MV Arrilah-1, a UAE-owned ship hauling aluminum in the Arabian Sea, in April 2011. The US Fifth Fleet [official website] rescued the ship one day later. In addition to ordering that all arms and ammunition used in the highjacking be confiscated, the court ruled that the 10 pirates would be deported after serving their sentences [WAM report].

A number of countries around the world have been making strides in helping to solve the problem of maritime piracy [JURIST news archive]. Earlier this week, six accused Somali pirates went on trial [JURIST report] in a Paris court for taking 30 crew members hostage in 2008 on the ship Le Ponant in the Gulf of Aden. The US government in March handed over [JURIST report] 15 suspected Somali pirates it captured in January to the Republic of Seychelles for prosecution. Italy ordered its first international piracy trial in February against nine Somali pirates, while France began its first international piracy trial [JURIST reports] in November. In October the UN Security Council adopted a resolution encouraging states to criminalize and punish piracy after maritime piracy reached an all-time high [JURIST reports] in April. The UN also donated $9.3 million [JURIST report] in 2010 to fund piracy courts in Seychelles and Kenya, the only two countries that have created such courts.




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Pakistan doctor sentenced for helping CIA find Bin Laden
Maureen Cosgrove on May 24, 2012 7:35 AM ET

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[JURIST] A Pakistani doctor was sentenced to 33 years in prison Wednesday for helping the Central Intelligence Agency (CIA) [official website] locate Osama Bin Laden [JURIST news archive]. After a trial lasting two months during which Shakeel Afridi was not afforded the opportunity to defend himself, a tribal court convicted him of treason and spying [CNN report]. Afridi was part of a CIA attempt to gather DNA samples from residents of Bin Laden's Abbattobad compound in an effort to determine whether Bin Laden was present there. US Senators John McCain (R-AZ) and Carl Levin (D-MI) [official websites] released a statement [text] after the sentence was handed down condemning the sentence and urging the Pakistani government to release Afridi:
It is shocking and outrageous that Dr. Shakil Afridi, the Pakistani doctor who assisted the United States in the search for Osama bin Laden, has been sentenced to 33 years in prison for the crime of treason. What Dr. Afridi did is the furthest thing from treason. It was a courageous, heroic, and patriotic act, which helped to locate the most wanted terrorist in the world - a mass murderer who had the blood of many innocent Pakistanis on his hands.
Afridi will likely be able to appeal the ruling, and analysts have suggested that a reversal is likely.

Since controversy arose over the killing of Bin Laden [JURIST report] by US forces in Pakistan last May, Pakistan's alliance with the US has been questioned. In December the Supreme Court of Pakistan [official website] formed a judicial committee to investigate a secret memo sent from an unknown Pakistani source to US Admiral Mike Mullen in May asking for help in preventing a suspected army coup. Former Pakistan ambassador to the US Husain Haqqani and Pakistani President Asif Ali Zardari [BBC profile] have been accused of writing or having knowledge of the memo, and both have denied these allegations. The growing conflict between the US and Pakistan was analyzed by JURIST guest columnist Sikander Ahmed Shah in Drone Strikes in Pakistan: Examining Consent in International Law [JURIST op-ed]. Pakistan has also faced an ongoing struggle with corruption that the courts have attempted to battle.




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