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Legal news from Tuesday, July 31, 2012




Federal judge allows Colorado Taxpayer's Bill of Rights challenge to proceed
Dan Taglioli on July 31, 2012 4:38 PM ET

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[JURIST] A judge for the US District Court for the District of Colorado [official website] on Monday ruled that a challenge to the Colorado Taxpayer's Bill of Rights (TABOR) can proceed. The lawsuit argues that TABOR is unconstitutional [Denver Post report] because it limits state spending and bars lawmakers from raising taxes without a public referendum, violating the US Constitution [Cornell LII materials] guarantee that every state is to have a republican form of government rather than a direct democracy. In a 73-page opinion Judge William Martinez rejected arguments by Colorado Attorney General John Suthers [official website] that the plaintiffs did not have standing [Cornell LII backgrounder] to bring the lawsuit, holding that the suit could be brought because some of the 33 plaintiffs are members of the Colorado General Assembly [official website]. Martinez also ruled that the political question doctrine [Cornell LII backgrounder] does not bar the TABOR challenge. Suthers' office did win one motion, successfully arguing that the court should reject the contention that TABOR violates the US Consitution's Equal Protection [Cornell LII backgrounder] Clause. The state already lost on its major arguments to have the lawsuit dismissed at a hearing in February.

Public referendums on tax laws can be popular with politicians who may benefit by passing the issue to their constituents, but may make governing difficult because citizens are not usually apt to decide to tax themselves. Earlier this month the Supreme Court of Missouri [official website] ruled [JURIST report] that revision to Missouri tax law [text] does not violate the Missouri Constitution [text]. The law was approved by Missouri voters through referendum in 2010 and requires the cities of St. Louis and Kansas City to regularly seek voter approval of municipal earnings taxes through elections. Last month the US Supreme Court [official website] ruled [JURIST report] that an Indianapolis tax amnesty program did not violate the equal protection rights of those citizens who had already paid the taxes in full. The case involved an Indianapolis tax scheme that was changed mid-project such that several residents were forgiven the remainder of their balances on that tax.




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India Supreme Court allows Exxon Valdez to be scrapped in country
Dan Taglioli on July 31, 2012 3:53 PM ET

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[JURIST] The Supreme Court of India [official website] ruled [order, PDF] Monday that the ship formerly known as the Exxon Valdez [EPA backgrounder] may be dismantled at the country's biggest scrapyard. The two-judge panel headed by Altamas Kabir overruled [Bloomberg report] a May decision by the Gujarat Pollution Control Board [official website] denying the ship, now known as the Oriental Nicety, entry to the scrapyard in Alang on India's western coast. The order stipulates that Priya Blue Industries Pvt. [corporate website], which bought the Oriental Nicety for scrapping, will be responsible for disposing any toxic material found in the ship. An activist with ToxicsWatch Alliance [advocacy website], who approached the court in April to bar the ship's entry, maintains that the ship contains asbestos and heavy metals. Priya Blue Industries plans to bring the ship into the Alang scrapyard to be broken down this week, and estimates that the recycling process will take five months to complete.

The Exxon Valdez dumped 11 million gallons of crude oil [BBC backgrounder; JURIST news archive] into Prince William Sound and contaminated about 1,300 miles of coastline. In March 2011 the US District Court for the District of Alaska [official website] refused to order Exxon Mobil [corporate website] to pay an additional $92 million [JURIST report] in damages from the oil spill. In 2009 the US Court of Appeals for the Ninth Circuit [official website] ruled that Exxon Mobil owes interest [JURIST report] on the more than $500 million in punitive damages awarded against it following the spill. The US Supreme Court [official website] declined to rule [JURIST report] on the issue the previous year, thus remanding it to the Ninth Circuit. In June 2008, the Supreme Court ruled 5-3 to reduce a punitive damages award [JURIST report] to be paid by Exxon from $2.5 billion to $500 million, but did not rule on the issue of interest. In December 2006, the Ninth Circuit reduced [JURIST report] Exxon's original $5 billion punitive damage award by more than $2 billion, ruling that the award was excessive in light of a 2003 Supreme Court ruling that punitive damages must be reasonable and proportionate to the harm incurred, and also considering Exxon's cleanup and compensation efforts.




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Former Saudi Arabia Guantanamo detainee surrenders
Sung Un Kim on July 31, 2012 3:21 PM ET

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[JURIST] Saudi Arabia's Ministry of the Interior [official website] announced Monday that a former Guantanamo Bay [JURIST backgrounder] inmate who had completed the country's militant rehabilitation program surrendered to Saudi authorities. Adnan al-Sayegh, who was placed in the Ministry's rehabilitation program after returning from Guantanamo in 2006, escaped to Yemen and rejoined al Qaeda [JURIST news archive]. He expressed remorse [Reuters report] when he surrendered himself to the authorities, according to a statement released by the Ministry of Interior. Sayegh argued that he was deceived into joining the terrorist group. He was placed on the country's wanted list in 2009 as the 85th most wanted terrorist. Authorities stated that he will receive proper procedure and that his surrender will be taken into consideration. The rehabilitation center was a measure by the country addressing the attacks initiated by Islamist militants during 2003 and 2006.

Saudi Arabia has previously been criticized for ties to al Qaeda. In March Judge George Daniels for the US District Court for the Southern District of New York (SDNY) [official website] dismissed a motion to reinstate Saudi Arabia as a defendant in the civil compensation lawsuit by victims and commercial insurers against the perpetrators of the 9/11 terrorist attacks [JURIST backgrounder] finding no sufficient basis to grant the plaintiffs' motion. He noted that such a motion was already presented to SDNY and rejected in 2005 by Judge Richard Conway Casey, who dismissed Saudi Arabia as a defendant [JURIST report] at that time. The claim against Saudi Arabia was dismissed [JURIST report] in 2008 by the US Court of Appeals for the Second Circuit because there was insufficient evidence that the Kingdom's princes had actual knowledge that their money was going to be used in the 9/11 attacks. Even after 10 years, cases brought by victims of the 9/11 terrorist attack against other governmental entities did not come to an end.




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London court denies bail for Muslim cleric held since 2002
Dan Taglioli on July 31, 2012 2:19 PM ET

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[JURIST] The UK High Court [official website] in London on Monday denied an application for bail [judgment, PDF] by Muslim cleric Abu Qatada [BBC profile; JURIST news archive]. Qatada had challenged a previous ruling that had denied him bail on grounds that the government's risk of losing Qatada was too great to allow his release, especially given his likely pending deportation [JURIST reports]. Qatada has been described as "Osama bin Laden's right-hand man in Europe" [Reuters report] and UK officials believe he should be kept in prison for national security reasons. Qatada has never formally been charged with an offense, and has been in and out of custody either in prison or some form of house arrest since first detained under British anti-terrorism laws in 2002. In early February he was released on bail [JURIST report] for a short time but was arrested again in April to begin deportation proceedings. Qatada had been convicted in absentia in Jordan for sending encouraging messages to Jordanian militants who were planning two bomb attacks in 1999 and 2000.

Qatada was granted political asylum by the UK in 1994. When later he was arrested under the Prevention of Terrorism Act police seized a sizable sum of money in various currencies, for which no explanation was given. In 2001 he went into hiding to avoid being arrested and detained under the then-proposed Anti-Terrorism, Crime and Security Act. He was arrested again in 2002 and held until March 2005 when he was released pursuant to a House of Lords judgment declaring his detention without trial to be unlawful. In February 2009 the ECHR ordered the UK to pay £2,500 in damages [JURIST report] to Qatada after determining that his imprisonment violated the European Convention on Human Rights [materials]. Despite his previous grant of asylum and fears of torture and persecution, UK Law Lords in February 2009 ruled that Qatada could be returned [JURIST report] to Jordan to face terrorism charges. The February decision overruled an April 2008 Court of Appeal decision blocking his deportation [JURIST report].




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Report urges Mexico authorities to investigate human rights violations
Rebecca DiLeonardo on July 31, 2012 12:39 PM ET

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[JURIST] Complaints about violations committed by Mexico's military forces have been on the rise, a report [press release] issued by the Trans-Border Institute at the University of San Diego (TBI) [official website] said on Monday. The report alleges that Mexican military forces have been committing human rights violations with impunity. TBI noted that the complaints increased dramatically since current Mexican President Felipe Calderon [BBC profile] took office. The group called for Mexican authorities to investigate and prosecute abuses by military forces. The report also called on president-elect Enrique Pena Nieto [campaign website, in Spanish] to ensure human rights reforms are instituted during his presidency.

Mexico has faced criticism recently for human rights violations. Earlier this month, Amnesty International submitted a briefing [JURIST report] to the UN Committee on the Elimination of Discrimination against Women detailing the failure of the Mexican government to protect women from torture, killings, sexual violence and other ill-treatment. In May the Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO) urged [JURIST report] Mexican authorities to do everything in their power to solve the murders of three Mexican journalists found in Veracruz. In March the UN Working Group on Enforced or Involuntary Disappearances expressed concern [JURIST report] over the state of enforced disappearances in Mexico. The Working Group, a panel of five independent human rights experts, found a "chronic pattern of impunity demonstrated by the absence of effective investigations in cases of enforced disappearances" in Mexico.




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AI: Mali authorities must investigate torture, disappearances
Rebecca DiLeonardo on July 31, 2012 11:42 AM ET

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[JURIST] Malian soldiers loyal to the country's coup leader, Captain Amadou Sanogo, have been committing human rights violations, including torture, extra-judicial killings, and enforced disappearances, Amnesty International (AI) [advocacy website] said in a report [text, PDF; press release] on Tuesday. The report documented inhumane detention conditions of opposition forces, including soldiers who were detained during a failed counter-coup in April. The report also alleged numerous incidents of torture and human rights violations of detained prisoners. AI called on the Malian authorities to investigate the allegations made in the report and ensure human rights protections in the future. AI's report mirrors the findings a similar report [JURIST report] released by Human Rights Watch (HRW) [advocacy website] last week, which alleged Malian soldiers have been abducting and torturing opposition soldiers and journalists.

International Criminal Court (ICC) Chief Prosecutor Fatou Bensouda said earlier this month that her office is opening a preliminary examination [JURIST report] of the recent violence in Mali, after the ICC received a letter from Malian government officials requesting an ICC investigation. Malian Justice Minister Malick Coulibaly said earlier this month that he would ask the ICC to open an investigation [JURIST report]. In May AI reported that Mali is facing its worst human rights crisis [JURIST report] since it gained independence in 1960. HRW released a similar report in April claiming that all sides to the conflict are committing war crimes [JURIST report]. Earlier in April the ICC said they would monitor the situation [JURIST report] in Mali for potential crimes under the ICC's jurisdiction. All of this has come after Malian soldiers took control of the government [JURIST report] and suspended the constitution in March. Many in the international community have expressed concern over the situation, including the UN Secretary-General Ban Ki-Moon, UN High Commissioner for Human Rights Navi Pillay and the UN High Commissioner for Refugees [JURIST reports]. The turmoil began when Taureg rebels attacked Malian soldiers [Al Jazeera report].




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India authorities, Maoists threatening activists: HRW
Sung Un Kim on July 31, 2012 11:37 AM ET

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[JURIST] Indian authorities and Maoist rebel groups have threatened and attacked civil society activists thereby interfering with the human rights work in the area of central and eastern India, Human Rights Watch (HRW) [advocacy website] reported [text, PDF; press release ] Monday. HRW found that most of the activists who have been victims of violence were residing in India's Orissa, Jharkhand and Chhattisgarh states. Villagers in the conflict areas are also locked between Maoists and the government because both sides are demanding information and loyalty while those who refuse are subject to arbitrary arrests and torture. The human rights group urged both sides immediately to stop their hostility against activists. It also expressed concern that the interference with the assistance programs of activists is most likely to have a detrimental effect on the general population rather than merely influencing local individuals. The 60-page report was based on more than 60 interviews with individuals, including local residents, journalists and activists who witnessed the alleged inhumane treatment by the Indian government and the Maoists committed from July 2011 to April 2012.

HRW's criticism of India's violence against activists was not the first time India has been under international attention for its human rights practices. In April UN Special Rapporteur on extrajudicial, summary or arbitrary executions Christof Heyns called on [JURIST report] the Indian government to cease its practice of extrajudicial and arbitrary executions. A month earlier Amnesty International [advocacy website] urged [JURIST report] the Indian government to stop capital punishment. AI claimed that India would move away from the international trend of abolishing capital punishment if it continues with such practice. In January HRW called on India to prosecute soldiers for torture and extrajudicial executions on its Bangladesh border.




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Visa fees breach EU antitrust laws: EU Commission
Sung Un Kim on July 31, 2012 10:43 AM ET

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[JURIST] The European Commission [official website] on Tuesday stated [press release, PDF] that Visa Europe, a subsidiary of Visa, Inc. [corporate websites], has breached EU antitrust laws. Visa Europe imposes multilateral interchange fees (MIFs) that retailers must pay for accepting Visa's payment cards from consumers. The Commission said that such fees have a restrictive effect on competition and business. The EU Competition Commissioner Joaquin Almunia [official website] announced in the supplementary statement of objections that the Commission has reached a preliminary conclusion finding that "Visa's MIFs harm competition between acquiring banks, inflate the cost of payment card acceptance for merchants and ultimately increase consumer prices." Visa thereby breached Article 101 of the Treaty on the Functioning of the EU (TFEU) [text, PDF] and Article 53 of the European Economic Area (EEA) [text, PDF] Agreement. The two articles prohibits "cartels and restrictive business practices. The supplementary statement of objection came a week after Almunia announced [Reuters report] that the Commission was preparing the document. Visa had already received [press release] a statement of objection in April 2009 stating that the company's MIFs restricted competition between banks for accepting debit and credit cards without benefiting consumers.

Visa is not the only financial institution that faces sanctions and other litigation. Last week, JPMorgan Chase [corporate website; JURIST news archive] agreed [JURIST report] to a $100 million settlement in a case accusing that the company increased monthly minimum payments for credit card holders from two percent to five percent in 2008 and 2009 to profit from higher fees. The settlement which was filed with the US District Court for the Northern District of California [official website] has still be approved by a judge. Bank of America (BOA) also agreed to pay $375 million in a settlement with bond insurer Syncora Guarantee [corporate websites] that accused the bank of misleading it into insuring toxic mortgage-backed securities of BOA-owned Countrywide Financial Corporation [NYT backgrounder]. In China, a Hong Kong judge ruled against Deutsche Bank AG [corporate website] on a motion to dismiss developer Tin Lik's rental fraud lawsuit. Lik claimed that during his sale of the Gateway Plaza in Beijing to Deutsche Bank's RREEF China Commercial Trust in 2007, he was forced to pay a shortfall of HK $279 million (US $36 million) in rental fraud.




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US State Department releases religious freedom report
Rebecca DiLeonardo on July 31, 2012 10:35 AM ET

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[JURIST] The US Department of State (DOS) [official website] on Monday released its annual International Religious Freedom Report [materials] documenting threats to religious freedom throughout the world. The report documents current international threats to religious freedom—particularly laws that punish religious traditions and blasphemy laws that are often used to punish religious tolerance. The DOS also expressed concern about impunity for religious violence and growing antisemitic sentiments. The report identified China, North Korea, Iran and Saudi Arabia as "chronic violators of religious freedom." In a statement [text] about the report, Secretary of State Hillary Clinton [official website] said she hoped the report would encourage greater religious freedoms. She said religious freedom is a key human rights issue:
People can believe that they and only those like them possess the one and only truth. That's their right. Though they do not have the right to harm those they think harbor incorrect views. But their societies pay a cost when they choose to look at others with hate or disgust. Human rights become real not only in interactions between citizens and their governments, but also in those millions of ordinary moments among neighbors and classmates, coworkers, even strangers on the street. Every time people choose tolerance and respect over fear and animosity, they strengthen human rights for themselves as well as everyone else, because they affirm their shared humanity.
The DOS also expressed concern about countries facing political reorganization such as Egypt, calling on their developing governments to ensure religious freedom.

Governments continue to balance religious freedom with other national concerns. Last month, a German court ruled [JURIST report] that circumcising young boys based on religious traditions is prohibited even if the parents consent to the procedure. In March, a UN expert urged states to refrain from using official state religions [JURIST report] as a means to enhance their national identity politics, "as this may have detrimental effects for the situation of individuals from minority communities." Last August Hungarian churches challenged a law [JURIST report] that officially recognized only 14 of the 358 religious groups in the country.




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ECCC appoints US judge to investigate new war crimes cases
Brandon Gatto on July 31, 2012 9:48 AM ET

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[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website], Cambodia's UN-supported war crimes tribunal, announced Monday that it has appointed [press release] a US judge to investigate two new Khmer Rouge [BBC backgrounder] cases, strongly opposed by the government, after two other judges resigned in protest. Mark Harmon, a former prosecutor for the US government and also for the International Criminal Tribunal for the former Yugoslavia [official website], was called upon [AFP report] by the special criminal court as the third foreign judge in less than a year to probe a pair of cases involving five suspects linked to Cambodia's government from 1975 to 1979, a regime that saw up to two million people die. Though the court believes it must pursue all culpable parties, the Cambodian government is said to fear that new prosecutions would destabilize the country.

In January, the UN refused to replace [JURIST report] German judge Siefried Blunk after Cambodia attempted to block the Swiss reserve judge Laurent Kasper-Ansermet from investigating the same politically-sensitive cases. Specifically, the Cambodian government contended that Kasper-Ansermet was unsuitable [Reuters report] to continue the investigation because he used his Twitter account to comment on the cases. Blunk, citing government interference in his investigations, resigned [JURIST report] in October, but was consistently criticized for allegedly failing to conduct impartial investigations. Meanwhile, Cambodia has argued that the trial of former Khmer Rougue leaders is a Cambodian rather than an international issue.




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Putin signs Russia-US child adoption agreement
Brandon Gatto on July 31, 2012 9:09 AM ET

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[JURIST] Russian President Vladimir Putin [official website; JURIST news archive] on Monday signed a new agreement [press release] with the US that tightens the rules for Americans adopting children from the Russian Federation. Specifically, a foreign family can adopt a Russian child only if there is no Russian family found for him or her. The deal also provides for more control of the child following the adoption. According to the office of Pavel Astakhov [official website], Russia's Children's Rights Commissioner, the need for the agreement became apparent [press release] after "a series of tragic episodes involving Russian children and their adoptive American families." "According to official data only," said Astakhov, "19 Russian children died at the hands of US citizens over the last 10 years." Although the deal was signed in Washington, DC in July 2011, the delay in ratification forced the Russian Foreign Ministry [official website] to suspend Russian adoptions by Americans until the stricter adoption requirements come into force.

Putin's approval of the adoption agreement comes not long after the Russian Duma [official website, in Russian] ratified the agreement [JURIST report] earlier this month. In February Russia's Foreign Ministry announced that it would ask the government to suspend adoptions by US citizens [USA Today report] after discovering that at least 17 children had died due to violence by their American families. In 2011 a Pennsylvania couple was sentenced [NYT report] to four years in prison after a jury found them negligent and responsible for the death of their adopted seven-year-old Russian son, though the Russian government criticized the ruling as too lenient. Also in 2011 an Alaskan woman was convicted [Huffington Post report] of child abuse after she poured hot sauce into the mouth of her adopted Russian son.




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Taiwan university sues Apple for infringing upon voice-to-text technology
Sung Un Kim on July 31, 2012 7:15 AM ET

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[JURIST] A Taiwanese university announced Monday that it has filed a patent suit against Apple [corporate website] in the US District Court for the Eastern District of Texas [official website]. Taiwan's National Cheng Kung University [university website] holds two different patents related to voice-to-text technology that were issued in 2007 and 2010. The university claims [Reuters report] that Apple infringed upon these patents by using Siri [materials], a feature allowing consumers to complete tasks via voice commands, in its iPhones and future iPads. The specific amount of damages sought was not revealed, but Yama Chen, legal manager of the university, stated that possible damages would be based on sales of Apple's products that use Siri. Chen also announced that the university is considering additional patent infringement suits against Google and Microsoft [corporate websites].

Apple has been involved in patent litigation around the globe against rivals Samsung Electronics, HTC and Motorola [corporate websites]. Last week the Federal Court of Australia [official website] began hearing [JURIST report] two patent infringement cases brought by Apple and Samsung Electronics. Apple has sued Samsung for infringing numerous patents by producing smartphones and tablets similar in design to the iPhone and iPad. In response, Samsung brought a counterclaim alleging that Apple unlawfully used its 3G technology that allows users to take calls while uploading photos and other documents. On the same day the US International Trade Commission (USITC) [official website] upheld [JURIST report] a decision by an administrative law judge that Apple legitimately used digital image preview technology patented by Eastman Kodak [corporate website]. Earlier this month, a UK court ruled [JURIST report] in favor of Samsung in a design infringement case brought by Apple alleging that three of Samsung's tablets infringed upon Apple's registered design patents while Samsung denied infringement. The court held that the designs of Samsung's Tablets 10.1, 8.9 and 7.7 did not infringe upon the Community Registered Design No. 000181607-0001 which belongs to Apple. On the other hand, a judge for the US District Court for the Northern District of California [official website] issued an injunction [JURIST report] against Samsung to stop the sale of its Galaxy Nexus smartphone in the US.




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