Author: Hillary Stemple

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] in Abbott v. Abbott [Cornell LII backgrounder; JURIST report] that a ne exeat clause, which prohibits one parent from removing a child from the country without the other parent’s consent, confers a “right of custody” within the meaning of the Hague Convention on International Child Abduction [text]. The Hague Convention requires a country to return a child who has been “wrongfully removed” from his country of habitual residence. Under Art. 12, a “wrongful removal” is one that occurs “in breach of rights of custody.” The US Court of Appeals for the Fifth Circuit held [opinion, PDF] that ne exeat rights do not constitute “rights of custody” within the meaning of the Hague Convention. Reversing the decision below, Justice Anthony Kennedy wrote:

Because Mr. Abbott has direct and regular visitation rights, it follows that he has a ne exeat right under article 49. The Convention recognizes that custody rights can be decreed jointly or alone and Mr. Abbott’s ne exeat right is best classified as a “joint right of custody,” which the Convention defines to “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Mr. Abbott’s right to decide [his child’s] country of residence allows him to determine the child’s place of residence, especially given the Convention’s purpose to prevent wrongful removal across international borders. It also gives him “rights relating to the care of the person of the child,” in that choosing [his child’s] residence country can determine the shape of his early and adolescent years and his language, identity, and culture and traditions. That a ne exeat right does not fit within traditional physical custody notions is beside the point because the Convention’s definition of “rights of custody” controls.

Justice John Paul Stevens wrote in dissent and was joined by Justices Clarence Thomas and Stephen Breyer. The case was remanded to the lower court.

The case was brought by petitioner Timothy Abbott after his ex-wife, respondent Jacquelyn Abbott, removed their son to the US from Chile without his permission in 2005. He argued that his ne exeat right gave him joint authority over the child’s place of residence and that removing the child from Chile violated this right.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in one case. In Wall v. Kholi [docket; cert. petition, PDF], the court will decide whether a state court sentence-reduction motion consisting of a plea for leniency constitutes an “application for State post-conviction or other collateral review” under 28 USC s. 2244(d)(2) [text], resulting in an extension of the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) [text, PDF] one-year limitations period for a state prisoner to file a federal habeas corpus petition. The US Court of Appeals for the First Circuit [official website] reversed the district court’s judgment that a petition for leniency is different from an appeal to correct legal errors and therefore does not result in a tolling of the statute of limitations under AEDPA. The First Circuit’s decision was in line with a Tenth Circuit ruling on the same issue, but the Third, Fourth and Eleventh Circuits had previously ruled that a petition for leniency does not toll the statute of limitations under AEDPA.

Kholi was initially convicted in 1993 and sentenced to 10 life sentences, six running concurrently to four consecutive. He appealed his conviction to the Rhode Island Supreme Court, which affirmed the convictions in 1996, but he did not file a federal writ of habeas corpus at that time. He then filed a motion seeking sentence reduction as a form of post-conviction relief, which was denied. Kholi exhausted his procedural options regarding sentence reduction in 2007, at which time he began his appeal for federal writ of habeas corpus, well beyond AEDPA’s standard one-year limitation on filing.

[JURIST] A Chinese appeals court on Monday upheld the convictions of three Chinese citizens convicted in March [JURIST report] of receiving bribes and stealing commercial secrets while employed by Australian mining company Rio Tinto [corporate website]. The men, Wang Yong, Ge Minqiang, and Liu Caikui, were sentenced to between seven and 14 years in prison for accepting around USD $13.5 million in bribes and using “improper means” to gain secret commercial information that gave the company an advantage when bargaining with China over the importation of steel. The Shanghai Higher People’s Court affirmed [Xinhua report] the lower court’s findings, holding that the procedures followed were proper and the convictions and sentences appropriate. A fourth man, Australian national Stern Hu, was also convicted of the same charges as his Chinese colleagues, but he chose not to appeal. In addition to serving prison time, the court indicated the men will be expected to turn over any money that was received illegally.

The men were initially accused last July [JURIST report] of stealing state secrets [JURIST news archive] during stalled iron ore price negotiations. China’s state secrets law has frequently been criticized for the breadth of action which falls under the doctrine. Last month, the Chinese government revised [JURIST report] its sweeping state secrets law to require Internet and telecommunications companies to inform on customers who share state secrets. In November 2009, rights activist Huang Qi was sentenced to three years in prison [JURIST report] for violating the state secrets law when he discussed how some schools collapsed after the Sichuan province earthquake [BBC backgrounder] in 2008 because of shoddy construction. In June 2007, Human Rights in China [advocacy website] said that the state secrets system in China gives the government virtually complete power to halt the free flow of information [JURIST report], “undermining healthy governance and rule of law.”

[JURIST] Canadian Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials; JURIST news archive] on Friday refused for the second straight day to attend preliminary hearings relating to his pending murder and terrorism charges [JURIST report], claiming he is being mistreated by military guards. On Thursday, Khadr refused to attend the proceedings, stating [WP report] that the blackout goggles required by military protocol were aggravating an eye conditions which needed medical attention. Khadr did appear for hearings on Thursday afternoon after Judge Patrick Parrish indicated he would be brought by force if he did not present himself willingly. Khadr did not attend Friday’s hearings after refusing to submit to a search prior to being transported. He contends that the search was meant to intimidate and humiliate him. Parrish indicated that he would not question security protocols and ruled that Friday’s proceedings would continue without Khadr because he had voluntarily chosen not to attend. This week’s hearings are being held in order to determine if statements made by Khadr during his interrogation should be suppressed [JURIST report]. They are to be the last preliminary hearings before his US military commission [JURIST news archive] trial in July.

Khadr’s lawyers filed an emergency motion [JURIST report] in February in the Federal Court of Canada [official website] challenging the decision of the Canadian government not to seek his repatriation from the United States [JURIST report]. The Supreme Court of Canada ruled [JURIST report] in January that the government was not obligated to seek Khadr’s return to Canada despite having violated his rights under section 7 of the Canadian Charter of Rights and Freedoms [text]. Khadr has allegedly admitted to throwing a hand grenade [JURIST report] that killed a US soldier in Afghanistan.