Author: JURIST – Paper Chase

[JURIST] The Polish government joined a class-action on lawsuit Wednesday brought against Russia for the 1940 Katyn Massacre where 20,000 Poles were killed by the USSR. The suit, filed in May in the European Court of Human Rights (ECHR) is being brought by 13 Polish citizens who are relatives of the victims. They allege that the Russian government failed to provide adequate investigations into the incident and did not grant the relatives victim status. The complaint states:hey were denied an effective remedy which would have been able to reveal the true circumstances, in which their relatives had been killed. They pointed out that the above-mentioned deficiencies of the criminal investigation undermined the efficiency of other remedies, as the success of civil-law measures was made dependent on the result of criminal investigation.The Polish government joining the suit gives it more legitimacy and enables the government to submit proposals to the court. Russia has until March 19 to respond to the allegations.This is not the first attempt by the relatives of the Katyn massacre victims to seek a remedy. In January 2009, they were denied an appeal to the Supreme Court of the Russian Federation to reopen investigations into the killings. The court reasoned that the Soviet-era criminal code to be applied to the killings places a 10-year statute of limitations on the proceedings. A decade-long official inquiry into the killing of 20,000 Poles during the 1939 annexation of Poland was closed in 2004 due to a lack of living potential defendants and expiration of the statute of limitations. In 1990, the government of Mikhail Gorbachev admitted that Soviet leader Josef Stalin had personally ordered the killings.

[JURIST] International Criminal Court (ICC) deputy prosecutor Fatou Bensouda arrived in Guinea Thursday for a three-day investigation into the killing of more than 150 civilians in Conakry in September. During her investigation, Bensouda will determine whether the ICC has jurisdiction to try those responsible for the massacre if the government fails to do so. Bensouda has stated that the victims’ families will have justice. The Rome Statute enables the ICC to adjudicate genocide, war crimes, and crimes against humanity, but the court only acts if the member state is unable or unwilling to try those accused of committing serious crimes.
Earlier this month, a commission created by Guinea’s junta announced that former Guinean junta aide Lieutenant Aboubacar Cherif “Toumba” Diakite is the sole government official to blame for the massacre. The commission’s conclusion contradicts a UN report that blamed junta leader Moussa Dadis Camara, Minister for Special Services Moussa Tiegboro Camara, and Toumba for the September 28 slayings. In October, the ICC placed the Guinean military under preliminary investigation for human rights violations related to the Conakry incident, and the UN and Guinea both announced they were creating commissions to investigate the killings. The Conakry incident stemmed from a pro-democracy demonstration against Camara, who intended to push elections forward three months and stand for re-election.

[JURIST] Lawyers representing Guantanamo Bay detainee Omar Khadr filed an emergency motion Wednesday in the Canadian Federal Court challenging a diplomatic note sent by the Canadian government to the US State Department. The note asks that all evidence collected by Canadian officials be omitted from any US proceedings against Khadr but declines to seek his repatriation. Khadr’s legal team cited constitutional objections and accused the government of acting in bad faith by declining to request Khadr’s repatriation and for failing to consult them prior to issuing the note.
Earlier this month, the Harper administration announced that it would not pursue Khadr’s repatriation. The statement came after the Supreme Court of Canada ruled in January that the government was not obligated to seek his return to Canada despite having violated his rights under section 7 of the Canadian Charter of Rights and Freedoms. Canadian officials questioned Khadr, who was captured at age 15, despite knowing that he was being indefinitely detained and had been subjected to sleep deprivation by US authorities. Still, the court held that forcing the government to press for Khadr’s return was not an appropriate remedy, as such an order would overreach the court’s authority. The ruling overturned a Federal Court of Appeals decision, which upheld a lower court order requiring the federal government to seek Khadr’s repatriation.

[JURIST] A federal judge on Thursday decided that the criminal trial of Galleon Group hedge fund founder Raj Rajaratnam will begin October 25. Prosecutors had asked the judge to schedule the trial for June or July, but Rajaratnam and former hedge fund consultant Danielle Chiesi asked for more time to prepare a defense, saying it would be impossible to prepare fully by June or July. The judge noted that while he was pushing the trial back, he wants the criminal trial to take place before the civil trial. Rajaratnam agreed to move the civil trial back to accommodate.
Former Intel Capital executive Rajiv Goel pleaded guilty to insider trading charges in connection with the Galleon probe earlier this month. In January, federal prosecutors indicted seven more individuals in connection with the case. Rajaratnam and Chiesi were arrested in October and charged along with four other individuals and two business entities with insider trading. The complaint alleged that the individuals provided Galleon Group and another hedge fund with material nonpublic information about several corporations upon which the funds traded, generating $25 million in illicit gain. Rajaratnam and Chiesi pleaded not guilty in December after being indicted for insider trading.

[JURIST] Pakistani President Asif Ali Zardari on Wednesday appointed 34 new judges, including three to the country’s Supreme Court, after Chief Justice Iftikhar Mohammad Chaudhry blocked Zardari’s original selections. The court blocked the selections last week because Zardari did not consult with the Supreme Court prior to making the nominations, as mandated by section 177 of the Pakistani Constitution. Among the new Supreme Court justices are Saqib Nisar and Asif Saeed Khosa. Nisar’s appointment raised questions within Pakistan, as Chaudhry had previously blocked his nomination to the Lahore High Court. Chaudhry administered the oath of office to the new Supreme Court justices on Thursday, ending a week of controversy over judicial appointments. Within Pakistan, the resolution of the situation was seen as a victory for preservation of an independent judiciary.
Earlier this week, lawyers in Pakistan boycotted the courts in protest of both Zardari’s attempt at bypassing constitutional measures and at the Supreme Court’s actions. The latest clash between the judiciary and the executive in Pakistan continues their history of disputes. Last month, the Supreme Court released a detailed judgment in the controversial National Reconciliation Ordinance case, striking down an ordinance granting immunity to Zardari and 8,000 other government officials from charges including corruption, embezzlement, murder, and terrorism between January 1986 and October 1999.

[JURIST] The French Court of Cassation on Wednesday reversed an appellate court decision to overturn the convictions of five former Guantanamo Bay detainees, remanding the case to the lower court. A court spokesperson said the case will be heard by a specially created panel of the Paris appeals court. Regardless of the outcome, it is unlikely the men will serve any additional time in prison. A lawyer for two of the defendants expressed disappointment in the court’s decision.
The Paris appeals court overturned the convictions last February, finding that counter-terrorism agents from the French national security service DST could not gather intelligence and conduct a criminal investigation at the same time. The five were originally convicted in 2007 for criminal association with a terrorist organization, sentenced to time already served in Guantanamo, and released. The men were arrested in Afghanistan in 2001 and charged with attending an al Qaeda training camp. They were later detained at Guantanamo Bay and questioned by French counter-terrorism officials who failed to disclose the meetings, before being repatriated.

[JURIST] The North Carolina Innocence Inquiry Commission on Wednesday overturned a man’s 1993 murder conviction in its first exoneration of an inmate who claimed to have been wrongly convicted. George Taylor, who had served 17 years of a life sentence and had exhausted all other appeals options, became the first person to be exonerated under the commission since the commission’s creation in 2006. To receive commission review, inmates with new evidence not previously considered in court can bring their innocence claims to an eight-member panel, consisting of judges, attorneys, a sheriff, a victim’s advocate, and a member of the public. If five or more commission members consider the evidence to be a potential consideration for innocence, the case will then go to a panel of three North Carolina Superior Court judges, who must deliver a unanimous decision to overturn a conviction. The appointed commission judges found that faulty evidence and unreliable witnesses were used to wrongfully convict Taylor at trial.
The commission, the first and only program of its kind in the US, was signed into law in August 2006 and has received more than 600 claims of innocence. Its creation was prompted based on wrongful convictions in several high-profile cases in North Carolina, including Darryl Hunt, who was found innocent of murder based on DNA evidence after serving 18 years in jail, and Alan Gell, who was released from death row based on evidence that prosecutors purposefully withheld in his trial. The commission is modeled after the UK’s Criminal Cases Review Commission.

[JURIST] A Haitian judge on Wednesday ordered the release of eight of the 10 US missionaries held in a Haitian jail on kidnapping charges in the wake of the January 12 earthquake. Eight of the 10 members of the missionary group, affiliated with the Central Valley Baptist Church of Idaho and the New Life Children’s Refuge Charity, were released without bail Wednesday and flown overnight to Miami on an American military cargo plane. The eight were allowed to leave Haiti after the children’s parents testified that they voluntarily handed over the children to the missionaries because they were promised a better life. The two others, Laura Silsby and Charisa Coulter remain in custody while they are questioned by Judge Bernard Saint-Vil about their plan to take Haitian children out of the country to the neighboring Dominican republic without adoption certificates. Saint-Vil said the two others were being held because they been to Haiti prior to the earthquake.
Saint-Vil had said last week that that would recommend a provisional release pending an investigation. Even as American and Haitian lawyers worked toward their release last week, it was reported that the eight released missionaries accused Silsby and Coulter of misleading them. The 7.0 magnitude earthquake caused massive damage to property and infrastructure in Haiti, and the death toll has now been estimated at more than 200,000.

[JURIST] A judge for the US District Court for the District of Columbia granted summary judgment for the National Forest Service (NFS) Wednesday, upholding an agreement limiting the amount of timber that can be harvested in Alaska’s Tongass National Forest. Several Alaska towns and companies challenged the 2008 Tongass National Forest Land and Resource Management Plan (TLMP), which, among other things, designated parts of the forest “old growth reserves,” limiting the amount of timber that could be harvested. Under the TLMP, timber production is allowed in approximately 3.4 million acres of the 17 million acre forest. The plaintiffs argued that by designating a portion of the forest “old growth reserves,” the NFS withdrew the land from public use without congressional approval in violation of federal law. The court ruled, however, that the TLMP, in designating a portion “old growth reserves” did not “withdraw” that section of the forest under the meaning of the statute. The court also dismissed arguments that TLMP would not allow the Tongass to produce meet the market demand for timber as required by federal law.
In August, the US Court of Appeals for the Ninth Circuit upheld a rule preventing the building of roads or the use of roadless land for timber production in national forests. In 2008, an en-banc panel of the Ninth Circuit granted broad deference to the NFS when making decisions regarding the impact of logging on national forests. Earlier in the year, the same court ruled that the NFS generally has the prerogative to determine which trees are candidates for clearing after after a forest fire, but directed the agency to more thoroughly consider whether any logging should be done in certain wilderness areas. The court previously reversed a lower court order denying an injunction against a NFS plan to allow commercial logging in another forest to help pay for a wildfire prevention program. In 2005, the Ninth Circuit rejected a government plan that would have opened large portions of the Tongass to logging.

[JURIST] Eighty-five victims of rocket attacks in Israel have filed a lawsuit in the US District Court for the District of Columbia seeking damages from Iran and Iran’s central bank for for injuries suffered in the 2006 Second Lebanon War. The suit, filed Monday, claims that Iran, between 2001 and 2006, gave Hezbollah more than $50 million “with the specific intent and purpose of facilitating, enabling and causing Hezbollah to carry out terrorist attacks against American and Israeli targets in order to advance Iran’s Policy and Goals” of undermining the US and abolishing Israel. Specifically, the plaintiffs allege that Iran’s funding allowed Hezbollah to carry out a rocket barrage in July and August 2006 during a conflict with Israel. The plaintiffs are US, Canadian, and Israeli citizens who were injured or represent those killed in the attacks. The suit seeks $1 billion in compensatory damages and an unspecified amount in punitive damages.
In 2007, Human Rights Watch condemned Hezbollah for using rockets against civilians during the conflict. Earlier that year, Amnesty International found that both Israel and Hezbollah failed to adequately investigate war crimes allegations stemming from the conflict. In 2006, the UN Human Rights Council found that Israel had committed flagrant violations of human rights. Human rights groups accused both Israel and Hezbollah of using weapons banned by international law for use against civilians.

[JURIST] The Italian audit court, Corte del Conti, announced Wednesday that the number of corruption cases in Italy have risen by 229 percent over the past year. Court president Tullio Lazzaro voiced his concerns over the significant increase in public corruption scandals from 2008 to 2009, saying that legal sanctions are no longer a sufficient deterrent to criminal behavior. In recent years, Italy has seen numerous corruption scandals in both the business and political realms. A recent high-profile corruption scandal involves Italian Prime Minister Silvio Berlusconi, currently facing a possible third corruption charge.
Berlusconi, who is already facing two separate trials on charges of corruption and bribery, is accused of embezzlement and tax fraud related to his television company Mediaset, though his lawyers have dismissed any substance to the charges. Berlusconi’s son and 11 other members of Mediaset’s board are also implicated. A Milan judge will decide if there is enough evidence to hold a trial, which could begin this month. In January, Italian judges postponed a separate corruption trial at Berlusconi’s lawyers’ request. He is charged with paying his British lawyer David Mills to provide false testimony in two trials involving Mediaset. His tax fraud trial has also been postponed. Berlusconi has been previously acquitted of false accounting and bribery, and has had some other charges against him dropped.

[JURIST] The Supreme Administrative Court of Ukraine on Wednesday delayed an official declaration of victory for the recent presidential elections pending a suit filed by election runner-up Prime Minister Yulia Tymoshenko. Tymoshenko alleges widespread voter fraud allowed Viktor Yanukovych to win the election 49 percent to 45 percent. Tymoshenko filed her suit on Tuesday after the Ukrainian Central Election Committee rejected a fraud appeal. The court has scheduled the hearing on Tymoshenko’s suit for February 19.
Tymoshenko has been a controversial figure in Ukrainian politics during her two terms as prime minister. In March 2009, she called for constitutional changes to provide more separation between parliamentary and presidential powers. In October 2008, Tymoshenko withdrew a lawsuit she had brought against Ukrainian President Victor Yushchenko after he suspended a plan to hold early elections following the collapse of the country’s coalition government. Before suspending the plan, Yushchenko had issued a decree abolishing a Kiev court after it tried to block his order dissolving parliament.

[JURIST] An Internet privacy advocacy group on Wednesday filed a complaint with the US Federal Trade Commission (FTC) alleging that the new Google social networking service Buzz violates privacy laws. The complaint was filed by the Electronic Privacy Information Center (EPIC) and asks the FTC to investigate possible unfair business practices, privacy violations, and to restore to users greater control over their private information, including e-mail contact lists. Google released Buzz, a service built into Google’s Gmail service, last week to bring about a “new way to start conversations about the things you find interesting.” That release prompted almost immediate criticism regarding the possible privacy issues that arise from making information about e-mail contacts available to others. The Privacy Commissioner of Canada has also raised concerns about privacy protections with Buzz, and has expressed interest in working with the company to address users’ concerns.
Google’s entry into the social networking realm has resulted in problems previously experienced by other providers, such as Facebook. In late January, the Canadian Privacy Commissioner launched a new investigation into Facebook’s default privacy settings. The Canadian Commissioner had previously worked with Facebook in July and August of 2009 to increase users’ control over privacy settings. In August, five users filed suit against Facebook in US Federal Court in California, alleging that the site violates California privacy laws.

[JURIST] The UN announced on Tuesday that the Convention on Cluster Munitions (CCM) will enter into force on August 1 after being ratified by 30 countries. Burkina Faso and Moldova both submitted their instruments of ratification Tuesday, becoming the 29th and 30th countries to do so. In a statement, UN Secretary-General Ban Ki-moon said that “the Convention’s entry into force just two years after its adoption demonstrates the world’s collective revulsion at the impact of these terrible weapons.” Several major users of cluster munitions, including the US, Russia, China, Israel, India, and Pakistan, have not adopted the convention, arguing that cluster bombs serve legitimate military purposes. Ban urged “all States to become a party to the Convention without delay.”
The CCM opened for signature in December 2008 at a conference in Oslo, Norway. More than 100 countries adopted the convention in May 2008 at a meeting in Dublin, Ireland. Strong supporters of the ban include the UK, France, Germany, Italy, Spain, Canada, Japan, Mexico, and Australia. Although the US did not adopt the ban, claiming it would impede humanitarian efforts by discouraging cooperation with non-signatories, it did adopt a formal policy on cluster munitions in June 2008 “intended to minimize the potential unintended harm to civilians and civilian infrastructure.” Cluster bombs break apart, releasing large numbers of smaller, self-contained explosives which spread out before detonating upon impact. Their design aims to stop large-scale troop movements by maximizing bodily injury over a wide area. Bombs that fail to detonate can present a serious hazard for civilian populations.

[JURIST] A Finnish government commission established to investigate a 2008 school shooting proposed a ban on semiautomatic handguns in a report released Wednesday. If approved by the Finnish Parliament, the ban would affect more than 200,000 semiautomatic handguns across the country. The commission made other recommendations for stricter gun control laws, including raising the age requirement for owning handguns from 15 to 20, making gun permits temporary, and requiring two years of shooting practice. Finland has 650,000 registered gun owners and a population of 5.3 million. According to the 2007 Small Arms Survey, Finland ranks fifth in the world for gun ownership per capita with over three million civilian firearms.
The commission was set up by the Finnish Ministry of Justice to examine the September 2008 shooting at a vocational school in Kauhajoki, where a gunman killed nine students and one teacher. Less than one year earlier, a student killed eight people at a high school in Tuusula. Many observers, including Prime Minister Matti Vanhanen noted the “unfortunate” similarities between the two incidents, and Finnish government officials said they were ready to consider stricter gun control laws. After the killings, reform efforts began in both Finland and the European Union.

[JURIST] A judge from the US District Court for the Northern District of Alabama sentenced former HealthSouth executive Ken Livesay to five months in prison on Tuesday for his involvement in the company’s accounting fraud. Judge Karon Bowdre sentenced Livesay for the fourth time after the US Court of Appeals for the Eleventh Circuit in November vacated the trial court’s third sentence for being too lenient. The Eleventh Circuit had found that due to the severity of the crime and the possibility of deterring similar behavior, the trial court’s sentence of five years probation was “patently unreasonable.” The sentence remains below the 78 to 97 months recommended by the Federal Sentencing Guidelines. Livesay pleaded guilty in 2004 to charges that he participated in accounting fraud while at HealthSouth in order to overstate the company’s earnings. In exchange for his guilty plea and testimony against fellow conspirators, the government promised to recommend a reduced sentence.
HealthSouth founder and former CEO Richard Scrushy was found liable to the company’s shareholders for fraud in June and ordered to pay $2.88 billion in restitution. Also in June, the Eleventh Circuit rejected Scrushy’s challenges to a $445 million settlement against HealthSouth. In May, the Eleventh Circuit denied Scrushy’s petition for an en banc rehearing of his conviction for unrelated federal bribery and corruption charges for paying campaign debts of former Alabama governor Don Siegelman in exchange for a seat on a state-operated review board that regulates Alabama hospitals. In 2007, the US Securities and Exchange Commission settled its accounting fraud claims against Scrushy for $81 million. In 2005, Scrushy was acquitted of criminal charges of wire and mail fraud, money laundering, conspiracy, and violations of the Sarbanes-Oxley Act of 2002. In 2003, HealthSouth conceded that its prior financial statements had overstated its income and assets by a substantial amount. Several class action suits were subsequently filed by investors against the company and its officers for alleged violations of the Securities Act of 1933 and the Securities Exchange Act of 1934. The actions were consolidated and, in 2006, the $445 million settlement was reached.

[JURIST] A Malaysian appeals court on Wednesday denied a request by opposition leader Anwar Ibrahim to dismiss the charge of sodomy against him. Anwar was appealing the Malaysian high court’s December decision not to dismiss the charge. Anwar is accused of sodomizing his former aide, Mohd Saiful Bukhari, in 2008. He contends the charge is a politically-motivated government conspiracy seeking to undermine his political career. He has pleaded not guilty to the charge. Anwar had previously sought to have the high-profile trial, which began earlier this month, postponed until the court of appeals had made its decision. If convicted, he faces up to 20 years in prison.
The appeal is only one of numerous attempts by Anwar’s defense team to have the trial postponed or dismissed. Last week, the trial was temporarily suspended when Anwar’s lawyers sought the removal of high court Judge Mohamad Zabidin Diah for his failure to control prejudicial media coverage. The defense filed an objection asking Mohamad Zabidin to admonish Utusan Malaysia, a government-linked newspaper, for running suggestive headlines and photographs taken during the court’s private visit to the scene of the alleged sexual encounter. Mohamad Zabidin denied the request and indicated the defense should file a police complaint against the newspaper instead. Anwar’s lawyers are also hoping to have the trial postponed until his appeal of a decision not to grant him access to the prosecution’s evidence has been resolved.

[JURIST] A judge for the US District Court for the District of Columbia ruled Tuesday that claims of unlawful treatment and wrongful death brought on behalf of two former Guantanamo Bay detainees are barred by the Military Commissions Act of 2006 (MCA). The two men, Yasser Al-Zahrani and Salah Ali Abdullah Ahmed Al-Salami, were among three detainees who allegedly hanged themselves in their cells in July 2006. The claim was brought against former US defense secretary Donald Rumsfeld and more than 100 military officers and personnel under the Alien Tort Claims Act, which provides that district courts have original jurisdiction to hear claims for torts “committed in violation of the law of nations or a treaty of the United States.” The defendants moved to dismiss the suit based on section 7 of the MCA, which removes the ability of federal courts to hear challenges to the treatment of aliens who have been “properly detained” as enemy combatants. In the ruling, US District Judge Ellen Huvelle found that since the two men had been properly detained, the court lacked jurisdiction to hear the case.
In January, the UK-based human rights group Reprieve accused the Obama administration of suppressing information relating to the investigation of the suicides and urged further inquiries. The statement came after former guards at the prison told Harper’s Magazine that the three detainees experienced intense interrogations in a remote area of the base just hours before the apparent suicide. According to the article, military personnel were instructed by a commanding officer that the media would be told that the deaths were suicides. The Obama administration issued a statement indicating that it took the matter seriously and found no evidence of wrongdoing during its investigation. A 2008 investigation conducted by the US Naval Criminal Investigative Service (NCIS) concluded that the cause of death was suicide.

[JURIST] The Committee to Protect Journalists (CPJ) issued its annual report on Tuesday confirming the work-related killings of more than 70 journalists worldwide during 2009, the highest in the 30-year history of the CPJ. Of the 71 confirmed killings identified in the report, 51 are believed to be murders, with several others still under investigation. The CPJ also found that the number of journalists currently in prison is near the highest point this decade. The report states:
At a time when technology is changing the way people around the world gather and receive information, when international news organization are cutting back and closing bureaus, freelancers, local reporters, and online journalists are more important than ever. The press critic A.J. Liebling once quipped, “Freedom of the press is guaranteed only to those who own one.” In today’s world, that’s just about everyone. While the rights of each journalist are protected by international law, few have large media organizations that can stand behind them. Instead, their safety and security depends on the ability of press freedom organizations to generate public attention and mobilize action.The report also claims an alarming number of countries have taken action to limit or control journalists’ ability to use the Internet as a means to present opposing viewpoints. Incidents involving the death of journalists in the Philippines and Russia have drawn a significant amount of international attention over the last year. Last week, the Philippine Department of Justice (PDOJ) charged 197 people with murder in connection with the November massacre in the semi-autonomous Maguindanao province that left 57 dead, including 31 journalists. Last month, a Russian journalist died in a Siberian hospital from injuries he received during a police beating. In October, the UN Human Rights Committee issued a report stating that Russia is failing to protect important human rights, including freedoms of speech and of the press.

[JURIST] Ukrainian Prime Minister Yulia Tymoshenko filed a lawsuit on Tuesday with the Supreme Administrative Court of Ukraine claiming that last weekend’s presidential election was corrupt. Tymoshenko alleges that widespread voter fraud allowed her opponent, Viktor Yanukovych, to win the election. An initial fraud appeal to the Ukrainian Central Election Committee was rejected. Tymoshenko said that she hopes that the trial will be televised to ensure that the Ukrainian people know the truth. The likelihood of successful challenge for Tymoshenko is small. Western leaders, including US President Barack Obama, have already acknowledged Yanukovych as the winner and even many of Tymoshenko supporters have questioned her motivation for the lawsuit.
Tymoshenko has a history of being at the center of controversial political moments in Ukraine. In March, she called for constitutional changes to provide more separation between parliamentary and presidential powers. In October 2008, Tymoshenko withdrew a lawsuit she had brought against Ukrainian President Victor Yushchenko after he suspended a plan to hold early elections following the collapse of the country’s coalition government. Before suspending the plan, Yushchenko had issued a decree abolishing a Kiev court after it tried to block his order dissolving parliament. Ukraine’s leadership is divided in the wake of the 2004 Orange Revolution that brought Yushchenko to power as president.