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Legal news from Wednesday, September 19, 2012




Italy high court upholds sentences of 23 former CIA agents in rendition case
Jerry Votava on September 19, 2012 3:55 PM ET

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[JURIST] The Italian Court of Cassation [official website, in Italian] on Wednesday upheld the convictions of 23 former CIA officers for the 2003 kidnapping and rendition [JURIST news archive] of Egyptian terror suspect Osama Moustafa Hassan Nasr. Former Milan CIA station chief Robert Seldon Lady was originally sentenced [JURIST report] to eight years in prison, while 22 other Americans were sentenced to five years after they were all tried in absentia. In 2010 an Italian intermediate appellate court increased [JURIST report] Lady's sentence to nine years while increasing the sentences of the other 22 defendants to seven years. The Court of Cassation upheld [BBC report] the sentences of nine and seven years.

Nasr, also known as Abu Omar, was seized on the streets of Milan in 2003 by CIA agents with the help of Italian operatives, then allegedly transferred to Egypt and tortured by Egypt's State Security Intelligence before being released [JURIST reports] in February 2007. In September 2009 the US Department of Justice [official website] filed a motion to dismiss [JURIST report] a lawsuit brought by former State Department official Sabrina De Sousa seeking diplomatic immunity against the Italian charges. De Sousa was one of the Americans whose sentence was increased to seven years. The CIA's rendition program has been the source of much controversy and litigation. In 2009 President Barack Obama announced the US would continue its practice [JURIST report] of sending terror detainees to third countries for interrogation with increased oversight by the State Department to prevent torture.




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UN rights expert condemns violent protests over anti-Islam film
Sung Un Kim on September 19, 2012 3:17 PM ET

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[JURIST] The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai [official website] on Wednesday condemned [press release] the recent violence that erupted after a US citizen released an anti-Islam film. Kiai stated that protests and rallies must be peaceful to be protected by international human rights law and noted that the right of peaceful assembly should not be used as a license to commit violence. He urged the Middle East states to prosecute those responsible for the violence and to bring them before an independent court that respects the right to due process. With the call, Kiai warned the states not to use these incidents as an excuse to deny peaceful citizens of their right to peaceful assembly.

A similar call was made by the UN High Commissioner for Human Rights Navi Pillay [official profile] last week. She urged [JURIST report] religious and political leaders around the world to encourage an end to violence that followed the release of the film. While Pillay said she "fully understand[s] why people wish to protest strongly against" the film, she "utterly condemn[s]" the violence that has resulted from the protests. Violent protests last week in Benghazi and Egypt led to the death of the US ambassador and three others and more than 200 injuries, while protests on Thursday in Yemen led to the death of one person and injured 15 others.




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ICTY grants Karadzic 300 hours to present his defense
Sung Un Kim on September 19, 2012 2:51 PM ET

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[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Wednesday granted [decision, PDF] former Bosnian Serb leader Radovan Karadzic [ICTY case summary, PDF; JURIST news archive] 300 hours to present evidence in his defense. Karadzic had requested a total of 600 hours to present his defense, citing the 300 hours allocated to the prosecution and an additional 300 hours to rebut the 2,300 adjudicated facts. He also submitted a list detailing the 579 witnesses who will testify in his defense. The trial chamber however, rejected Karadzic's request for additional time and held that 300 hours would be reasonable. It stated that during cross-examination of the prosecution's witnesses Karadzic used two and half times the amount used by the prosecution on direct and re-direct examination. It also added that most of the adjudicated facts in the case have been discussed during direct and cross-examination of the prosecution's witnesses and there is no need to discuss every single fact. Karadzic's defense presentation is scheduled to begin on October 16.

Karadzic has been accused of participating in the planning of the 1995 Srebrenica Massacre [BBC backgrounder; JURIST news archive], which resulted in the death of more than 8,000 Muslim men and boys. Two weeks ago, the ICTY denied Karadzic's request for a new trial after he argued that the prosecution had failed to disclose [JURIST reports] crucial information until after trial. The court reasoned that the delay in disclosing evidence has not infringed on Karadzic's right to a fair trial, although the court noted that "the number of disclosure violations in this case has reflected badly on the Prosecution." In early June the judges from the ICTY went on a five-day visit [JURIST report] to locations relevant to the indictment of Karadzic. They visited Bosnia and Herzegovina (BiH) and Srebrenica and surrounding areas. This visit came just months after the ICTY sentenced [JURIST report] former president of the municipality of Sokolac, BiH, Milan Tupajic to two months in prison for refusing to testify against Karadzic. In February former Commander of the Bosnian Serb Army Ratko Mladic [BBC profile; JURIST news archive] accused [JURIST report] the ICTY of being biased.




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Brazil truth commission to limit scope to actions of government
Keith Herting on September 19, 2012 11:13 AM ET

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[JURIST] Brazil's National Truth Commission [official website, in Portuguese] announced Monday that it will limit its inquiry to human rights abuses committed by the government [press release, in Portuguese] under Brazil's military dictatorship from 1964 to 1985. There were some within the nation that hoped that the commission would also look at abuses by leftist guerrilla groups that were in conflict with the regime. According to their statement, the commission's organic statute [materials, in Portuguese] does not give the body any legal authority to investigate actions of individuals who were not acting on behalf of the government.

Brazil's Truth Commission was sworn in [JURIST report] by President Dilma Rousseff [official profile, in Portuguese] in May and will have two years to complete its work. In March prosecutors announced plans to charge a retired colonel [JURIST report] for his actions during the military dictatorship [investigation materials, PDF, in Portuguese] despite an amnesty law which bars prosecution of government officials during the military dictatorship's rule. In 2010 Amnesty International [advocacy website] urged Brazil to repeal its amnesty law [JURIST report] which protected former government officials.




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Bahrain pledges to follow UN plan to improve human rights conditions
Matthew Pomy on September 19, 2012 10:36 AM ET

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[JURIST] Bahraini Foreign Minister Sheikh Khalid Bin Ahmed Bin Mohammed Al Khalifa pledged on Wednesday to fulfill the 158 recommendations included in the UN Universal Periodic Review [materials] regarding human rights abuses against political opposition. Al Khalifa said Bahrain would begin accepting peaceful political opposition [AP report]. It is unclear if Bahrain will change how it handles dissent after consistent crackdowns on protesters recently. Following Al Khalifa's pledge, Human Rights Watch [advocacy website] called on Bahrain to follow through with their promises, but raised doubts [press release] as to whether the government is fully committed to reform.

Protests and demonstrations in Bahrain have been ongoing since February 2011 [JURIST report]. Earlier this week seven police officers were charged [JURIST report] with torturing protesters. Earlier this month the government announced that it would pursue legal proceedings [JURIST report] against the al Wefaq [official website, in Arabic] political party, which it labels an opposition group, for engaging in anti-government protests in the face of a ban [JURIST report] of those activities. Also this month, a civilian court in Bahrain upheld lengthy prison sentences [JURIST report] for 20 opposition and human rights activists, including eight life sentences. At the end of August a Bahraini appeals court overturned the conviction [JURIST report] of prominent human rights activist Nabeel Rajab [JURIST news archive]. In July Amnesty International [advocacy website] urged the government [JURIST report] of Bahrain to release all prisoners of conscience immediately.




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Federal judge lifts injunction on Arizona immigration law
Maureen Cosgrove on September 19, 2012 10:09 AM ET

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[JURIST] A judge for the US District Court for the District of Arizona [official website] on Tuesday lifted an injunction [order, PDF] that barred enforcement of a controversial provision of Arizona's immigration law [SB 1070, PDF] requiring law enforcement officials to check the immigration status of persons they stop or arrest if there is a reasonable suspicion that the person is in the US illegally. After hearing arguments [JURIST report] on the law in August, Judge Susan Bolton denied [JURIST report] the plaintiff's request for a preliminary injunction earlier this month in light of the US Supreme Court [official website] ruling in Arizona v. United States [opinion, PDF; JURIST report] which upheld the provision. Arizona Governor Jan Brewer [official website] said Bolton's lifting of the injunction was an important moment for Arizona [press release, PDF] and supporters of the bill:
I've never claimed that SB 1070 would cure Arizona's problems with illegal immigration; only the federal government has the resources and responsibility necessary to achieve that. What SB 1070 does represent is one more tool that our officers can use in collaborating with federal authorities to reduce the crime and other impacts associated with illegal immigration in our communities.
Arizona police officers can immediately begin enforcing the law [AP report].

Immigration law [JURIST backgrounder] has became a hot button issue over the past few years as many states, Arizona being the first, have passed laws giving state and local officials more power to crack down on illegal immigration. In August the US Court of Appeals for the Eleventh Circuit [official website] struck down [JURIST report] several provisions of Alabama's controversial immigration law [HB 56, PDF], upheld a few sections of the law and rejected part of Georgia's immigration law [HB 87, text]. That same month, the US Court of Appeals for the Third Circuit [official website] again heard arguments [JURIST report] on two anti-illegal immigrant laws enacted in 2006 by the city of Hazleton, Pennsylvania, which deny permits to businesses that employ illegal immigrants and fine landlords who extend housing to them. In July a judge for the US District Court for the District of South Carolina [official website] declined to lift an injunction [JURIST report] against South Carolina's controversial immigration law [SB 20 materials], despite the recent Supreme Court ruling. The lawsuit against the South Carolina immigration law was put on hold [JURIST report] in January pending the outcome of Arizona v. United States. Last May the ACLU and the National Immigration Law Center filed a class action lawsuit challenging Utah's immigration law, the same month that the ACLU filed a class action [JURIST reports] in the US District Court for the Southern District of Indiana [official website] challenging that state's immigration law.




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Australia lawmakers reject same-sex marriage legislation
Keith Herting on September 19, 2012 10:00 AM ET

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[JURIST] Legislation intended to legalize same-sex marriage [JURIST backgrounder] in Australia was overwhelmingly voted down on Wednesday. The Marriage Amendment Bill 2012 [bill, PDF], introduced to the House of Representatives by Labor MP Stephen Jones [official websites], was rejected by a vote of 42-98. The legislation failed despite 64.3 percent of the population supporting the bill, according to a survey [report, PDF] of 276,000 people conducted by the House of Representatives. The uneven vote may be partly attributed to Liberal MPs not being allowed a free vote by their party; Labor MPs were allowed to vote their conscience. At the close of debate on the bill, Jones argued [transcript]:
The case for the bill is simple. It is about equality, it is about recognition of relationships-the validation of those relationships-and it is about saying to people who are often excluded, alienated or discriminated against, "You know what? You are okay. What's more, you are better than okay: your relationship is just as valid as mine is in my marriage to my wife."
Same-sex marriage advocates are expected to re-focus their effort towards recognizing the unions on a state-by-state level.

Same-sex marriage recognition has been a contentious issue both internationally as well as within the US. Thus far in 2012 France, Germany and Scotland [JURIST reports] have all seen new efforts to get same-sex marriages recognized. Earlier this month the US Department of Justice asked the US Supreme Court to consider two more challenges [JURIST report] to the Defense of Marriage Act (DOMA) [text], which prohibits federal recognition of same-sex marriages. In July a lesbian couple filed a lawsuit in the US District Court for the Central District of California [official website] in a DOMA challenge that seeks to achieve for gay and lesbian couples the same federal immigration rights afforded to heterosexual couples [JURIST report].




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Ukraine warned against new libel law
Matthew Pomy on September 19, 2012 9:54 AM ET

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[JURIST] The independent media rights group, Reporters Without Borders (RSF) [advocacy website], warned [press release] Ukrainian lawmakers on Wednesday against passing a bill [text, in Ukrainian] that would criminalize libel. The bill, which passed on its first reading this week, would establish fines and other punishments, including prison and correctional labor sentences, for spreading false information about another person. RSF warns that this law will subject journalists to judicial harassment and would "threaten the very existence of independent journalism." Ukraine's opposition party has also spoken out against the new law [press release, in Ukrainian] claiming that it would be used to suppress the media.

Ukraine has also sparked other concerns leading up to their elections. Last week, Europe's human rights overseer urged [JURIST report] open and honest elections in Ukraine. In the same statement, he condemned the ongoing imprisonment of former prime minister and opposition party leader Yulia Tymoshenko [personal website; JURIST news archive] whose final appeal was denied [JURIST report] by Ukraine's highest court last month. During the appeal the government denied allegations that the criminal proceedings against Tymoshenko were a measure initiated by President Viktor Yanukovych to prevent her from participating in the October elections.




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Wisconsin AG appeals ruling striking down collective bargaining law
Maureen Cosgrove on September 19, 2012 9:22 AM ET

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[JURIST] Wisconsin Attorney General JB Van Hollen [official profile] on Tuesday filed an appeal of a ruling that struck down [JURIST report] a controversial law [text] limiting the collective bargaining rights of public sector unions. The appeal comes just four days after Judge Juan Colas of the Dane County Circuit Court [official website] held that the collective bargaining law, known as the Budget Repair Bill, violated union workers' rights to freedom of speech, freedom of association and equal protection under the US and Wisconsin constitutions. The Budget Repair Bill forces most state workers to pay more in health insurance and other benefits and compels unions to be recertified each year. Van Hollen also filed a motion to stay [text, PDF; brief, PDF] the court's ruling while the appeal is pending, arguing [press release] that "the decision is likely to be overturned on appeal and that a stay is needed to avoid confusion and to avoid other harm that might result if local governments are not able to take full advantage of Act 10 while an appeal is pending."

The Budget Repair Bill has been the subject of copious legal and political controversy since its passage in March 2011. In July the Wisconsin Supreme Court [official website] refused to reopen a case challenging the Budget Repair Bill because of a justice's refusal to recuse himself [JURIST report]. The Supreme Court's upholding of the Budget Repair Bill overruled a Dane County Circuit Court's decision [JURIST report] last year that struck down the law for violations of the open meetings rule. The law had previously been temporarily blocked [JURIST report] from publication and implementation by the same judge. The bill, which limits collective bargaining rights of state employees and requires them to contribute a percentage of their salaries to their health care and pensions, was signed into law [JURIST report] in March of last year.




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Pennsylvania Supreme Court remands voter ID case to lower court
Julia Zebley on September 19, 2012 8:35 AM ET

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[JURIST] The Supreme Court of Pennsylvania [official website] on Tuesday vacated [order, PDF] the decision [JURIST report] of the Pennsylvania Commonwealth Court [official website] upholding the state's new voter identification law [HB 943 materials] and remanded for further consideration. The Supreme Court's order, issued per curiam, suggests that it may be logistically impossible to implement the law by the November election, due to conflicts with the Pennsylvania Department of Transportation (PennDOT) [official website], the primary outpost for obtaining photo ID acceptable to the new law. The law requires that all voters present a state issued or federal government issued photo ID when they vote. However, the law provides that a potential ID recipient can swear to an affidavit that they have no proof of identification and receive a photo ID, whereas PennDOT has more rigorous requirements to obtaining a photo ID: a birth certificate with raised seal, a social security card and two forms showing current address.
Upon review, we find that the disconnect between what the Law prescribes and how it is being implemented has created a number of conceptual difficulties in addressing the legal issues raised. Initially, the focus on short-term implementation, which has become necessary given that critical terms of the statute have themselves become irrelevant, is in tension with the framing of Appellants' challenge to the Law as a facial one (or one contesting the Law's application across the widest range of circumstances). In this regard, however, we agree with Appellants' essential position that if a statute violates constitutional norms in the short term, a facial challenge may be sustainable even though the statute might validly be enforced at some time in the future. Indeed, the most judicious remedy, in such a circumstance, is the entry of a preliminary injunction, which may moot further controversy as the constitutional impediments dissipate.
They remanded the case to the Commonwealth court to "consider whether the procedures being used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards." Two justices, Justice Todd and Justice McCaffery [dissenting opinions, PDF] dissented to the order to vacate. Both criticized the court for remanding the issue so close to the general election in November, with Justice Todd writing: "By remanding to the Commonwealth Court, at this late date, and at this most critical civic moment, in my view, this Court abdicates its duty to emphatically decide a legal controversy vitally important to the citizens of this Commonwealth. The eyes of the nation are upon us, and this Court has chosen to punt rather than to act. I will have no part of it."

There are now 32 US states [NCSL backgrounder] that require voters to present some form of ID at the polls, but the issue remains controversial. The Pennsylvania Supreme Court heard oral arguments [JURIST report] on the law late last week. The case reached Pennsylvania's high court after an appeal [Bloomberg report] by the American Civil Liberties Union (ACLU) [advocacy website] from the lower court's ruling allowing the voter ID law to stand. The ACLU along with 10 citizen plaintiffs brought this case against Governor Tom Corbett who signed the voter ID bill into law [JURIST report] in March. JURIST Guest Columnist Lawrence Frolik [official profile] of the University of Pittsburgh School of Law analyzed [JURIST op-ed] the law and declared that it will not stop voter fraud but will cause disenfranchisement.




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UN rights expert urges better treatment of indigenous women
Julia Zebley on September 19, 2012 7:25 AM ET

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[JURIST] The UN Special Rapporteur on the rights of indigenous peoples [official profile] spoke [unofficial dialogue report] Tuesday on the plight of women and girls in oft-neglected indigenous peoples' communities. In a dialogue with the leaders of several nations, James Anaya made several recommendations [UN News Centre report] to increase awareness of the issue of treatment of women and girls that he highlighted in his annual report [text, PDF] to the Human Rights Council.
In a similar vein, combating violence against women and girls in the indigenous context must be achieved holistically; it cannot be addressed in isolation from the range of rights recognized for indigenous peoples in general. In this regard, violence against indigenous women and girls, which is distressingly all too common across the globe, cannot be seen as separate from the history of discrimination and marginalization that has been suffered invariably by indigenous peoples. This history manifests itself in continued troubling structural factors, such as conditions of poverty, lack of access to land and resources or other means of subsistence, or poor access to education and health services, which are all factors that bear on indigenous peoples with particular consequences for indigenous women. The history of discrimination against indigenous peoples has also resulted in the deterioration of indigenous social structures and cultural traditions, and in the undermining or breakdown of indigenous governance and judicial systems, impairing in many cases the ability of indigenous peoples to respond effectively to problems of violence against women and girls within their communities.
In addition to a holistic approach, Anaya recommended implementing the Declaration on the Rights of Indigenous Peoples [official website], which was adopted by the General Assembly [JURIST report] in 2007. Both the US and Canada [JURIST reports] have pledged support for the declaration.

Last month, Anaya called on the US to consult with indigenous tribes [JURIST report] about the scheduled sale of land in the Black Hills region of the state. Anaya announced that he would visit the US in April to launch the UN's first ever investigation into the rights situation of Native Americans [JURIST report]. Anaya's goal was to look into the rights of Native Americans, Alaska Natives and Native Hawaiians, and determine how the US's endorsement of the UN Declaration on the Rights of Indigenous Peoples has affected the rights of these groups of people.




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