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Legal news from Monday, April 20, 2009

South Korea court clears blogger of charges
Safiya Boucaud on April 20, 2009 3:29 PM ET

[JURIST] The Seoul Central District Court on Monday acquitted a South Korean blogger charged with spreading misleading financial information online. Park Dae-sung had been charged [UNHCR report] with spreading false and misleading financial information for writing that the South Korean government had ordered local banks not to buy US dollars in an effort to stabilize currency. The judge concluded [Korea Times report] that Park did not violate the country's telecommunications law, and that he could not have been aware that the information he was posting was misleading. The judge also said that even if Park knew the information to be false that there was no intent that he meant any harm. The prosecutors' office indicated that they will appeal because they believed that the court failed to apply the law properly.

While print journalists have long faced imprisonment [JURIST news archive] in some countries for their work, the advent of blogging has resulted in a new group subject to sanctions for controversial reporting. In January, Chinese blogger Chen Qitang was sentenced to 30 months in prison [JURIST report] for making disparaging remarks about the government. In September, the Singapore Supreme Court sentenced US blogger Gopalan Nair [JURIST report] to three months in jail for insulting a judge. In February 2007, Egyptian blogger Abdel Kareem Nabil was sentenced to four years in prison [JURIST report] for insulting Islam and causing sectarian strife.

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Supreme Court hears Iraq immunity, English language school funding cases
Jaclyn Belczyk on April 20, 2009 2:40 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday heard oral arguments [day call, PDF; briefs] in two cases. In Iraq v. Beaty [oral arguments transcript, PDF; JURIST report] and Iraq v. Simon, the Court will consider whether Iraq has sovereign immunity from the jurisdiction of US courts in cases involving alleged misdeeds that occurred during the Saddam Hussein regime. The plaintiffs in both cases sued the Iraqi government, alleging that they were detained and tortured during the 1990s Gulf War. The Foreign Sovereign Immunities Act (FSIA) [28 USC § 1602 et seq. text] creates exceptions to the general rule that states cannot be sued in US courts for states designated as sponsors of terrorism. The US Court of Appeals for the DC Circuit found in both Beaty and Simon [opinions, PDF] that the Iraqi government was subject to suit under the the doctrine of sovereign immunity. Counsel for the Iraqi government argued that the plain language of the statute grants Iraq immunity from suit because it is no longer designated a terrorism sponsor. Counsel for the respondents argued, "[The FSIA] says if you are the victim of torture by a nation designated as a state sponsor of terror and that designation changes so that you are no longer on that list, then you still have a cause of action under the FSIA. The fact that the country changes its ways and gets de-designated doesn't change that result."

In Horne v. Flores [oral arguments transcript, PDF] and Speaker of the Arizona House of Representatives v. Flores, the Court will consider whether the US Court of Appeals for the Ninth Circuit erred in declining to modify an injunction against Arizona for failing to provide sufficient funding for non-English speaking school children. The circuit court affirmed [opinion, PDF] a lower court ruling that the state of Arizona was in violation of the Equal Educational Opportunity Act of 1974 [text]. Counsel for the petitioners argued that the district court, "blinded itself to the significant changes structurally as well as the progress that had been made and just said it doesn't matter because this is all about funding, and that is not true." Counsel for the respondents argued, "When the district court issued its initial judgment in 2000, what the court found was that there was a systemic violation of the EEOA. And the court further found that the program deficiencies were the result of the lack of funding rationally related to the programs."

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Senegal appeals court overturns criminal homosexuality convictions
Ingrid Burke on April 20, 2009 11:01 AM ET

[JURIST] As appeals court in Senegal on Monday ordered the release of nine members of AIDS awareness group AIDES Senegal who had been convicted of sodomy and sentenced to eight years in prison in January. Having been officially charged with acts against nature and the creation of an association of criminals, the men appealed [AFP report], asserting that police reports surrounding the arrests had relied primarily on anonymous tips. Under Senegalese Penal Code Article 3.913, homosexuality is punishable by up to five years in prison or up to 1,500,0000 CFA francs. The defendants were sentenced to an additional three years due to the trial court's ruling that their organization was engaged in actively recruiting conversions to homosexuality. The Joint UN Program on HIV/AIDS (UNAIDS) [official website] applauded [press release] the appellate court's holding, marking the decision as an important step toward reducing discrimination to the country's homosexual population.

The trial court's January decision was met with widespread international criticism. UNAIDS, the UN Development Programme (UNDP), and the French and Swedish embassies, on behalf of the European Union, have been advocating the release of the prisoners since their sentencing. The International Gay and Lesbian Human Rights Commisssion (IGLHRC) and the International Centre for the Legal Protection of Human Rights (INTERIGHTS) [advocacy websites] have both urged [statement] the Senegalese government to repeal the sodomy law. The Society for AIDS in Africa and the International AIDS Society [advocacy websites] issued a joint statement [text, PDF] in January asserting the necessity of overcoming state-sanctioned discrimination toward homosexuals as an integral step in overcoming the HIV threat in Senegal. In December, the UN General Assembly [official website] split [JURIST report] over the the issue of decriminalizing homosexuality [press release] as 66 nations signed a statement calling for decriminalization, and nearly 60 nations, including many African countries, signed an opposing statement.

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Supreme Court takes speedy trial, First Amendment, prosecutor immunity cases
Matt Glenn on April 20, 2009 10:25 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] granted certiorari [order list, PDF] Monday in three cases. In Bloate v. United States [docket; cert. petition, PDF] the Court will consider whether time granted to prepare pretrial motions is excludable under 18 USC § 3161(h)(1) [text], which lists exceptions to the requirement that a criminal defendant be tried within 70 days of indictment or his first appearance in court. The US Court of Appeals for the Eighth Circuit upheld [opinion, PDF] Bloate's conviction, ruling that time granted to file pretrial motions is not excludable. Other circuits are split on the issue.

In United States v. Stevens [docket; cert. petition, PDF] the Court will consider whether 18 USC § 48 [text], which bans depictions of animal cruelty, violates the First Amendment. The US Court of Appeals for the Third Circuit held [opinion, PDF] that the law illegally restricts speech.

In Pottawattamie County v. McGhee [docket; cert. petition, PDF] the Court will consider:

Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly (1) violated a criminal defendant’s "substantive due process" rights by procuring false testimony during the criminal investigation, and then (2) introduced that same testimony against the criminal defendant at trial.
The US Court of Appeals for the Eighth Circuit held [opinion, PDF] that prosecutors were not protected from suit by absolute immunity.

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Iran top judge urges fair appeals process for jailed US journalist
Benjamin Hackman on April 20, 2009 8:33 AM ET

[JURIST] Iran's judiciary on Monday ordered fair appellate proceedings for a US journalist convicted [JURIST report] this week of espionage and sentenced to eight years in prison. Iran's top judge Ayatollah Mahmoud Hashemi Shahrudi [BBC profile] said the appeal [BBC report] by journalist Roxana Saberi [BBC profile], a dual US-Iran citizen who was originally arrested for illegally purchasing alcohol, should be fair and accurate. Shahrudi's declaration came after Iranian President Mahmoud Ahmadinejad [BBC profile] implicitly criticized [Financial Times report] the judiciary's handling of Saberi's case. On Sunday, Ahmadinejad told [IRNA report; JURIST report] Tehran prosecutor Saeed Mortazavi to manage the appeal in a way that allows Saberi to defend herself freely. Saberi's lawyer said he would file an appeal [AFP report] by week's end.

Last year, the Committee to Protect Journalists [advocacy website] reported that Iran ranked sixth in the world [report] for total number of imprisoned journalists. In the past two years, Iran has arrested several journalists and scholars on espionage charges. In 2007, Iran accused four Iranian-Americans of belonging to a US-organized spy network. Iran formally charged [JURIST report] Iranian-American scholar Dr. Haleh Esfandiari [WWC profile] for allegedly plotting "against the sovereignty of the country." Iran also charged Dr. Kian Tajbakhsh [OSI press release] and Radio Farda [media website] correspondent Parnaz Azima with allegedly engaging in an espionage conspiracy [JURIST report]. An Iranian judge said that Esfandiari and Tajbakhsh admitted to carrying out some "activities" [JURIST report], although it was unclear if their statements were tantamount to an admission of spying.

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Rights group calls on Hamas to end internal violence against Israel supporters
Eszter Bardi on April 20, 2009 8:11 AM ET

[JURIST] Palestinian Hamas [GlobalSecurity backgrounder] authorities should end the systematic detention, torture, and execution of supporters of Israel and the rival Fatah party [GlobalSecurity backgrounder], according to a report [text, PDF; press release] released Monday by Human Rights Watch (HRW) [advocacy website]. HRW said the tactics had been documented since December. It said that even though Israel withdrew its forces from the Gaza strip in early 2009, Hamas has continued its practice of extraordinary internal violence in the region, leading to 14 deaths and other human rights violations since January:

Of particular concern is the widespread practice of maiming people by shooting them in the legs, which Hamas first used in June 2007, when it seized control inside Gaza from Fatah. According to the Independent Commission for Human Rights (ICHR), the human rights ombudsman organization of the Palestinian Authority, unidentified gunmen in masks deliberately inflicted bullet wounds to the legs of at least 49 people between December 28, 2008 and January 31, 2009...
...Abductions and severe beatings are another major concern. According to ICHR, unidentified perpetrators physically abused 73 Gazan men from December 28 to January 31, causing broken legs and arms. Human Rights Watch documented three such cases of Fatah supporters assaulted during and after the Israeli offensive, as well as one case of what appeared to be a politically motivated house arrest.
The group urged Hamas authorities to hold accountable those responsible for using the methods, which it said violated the Palestinian constitution [text, PDF], the UN Convention Against Torture [text], and the International Covenant on Civil and Political Rights [text]. Hamas denied that it took part in politically motivated attacks but has promised to investigate [Reuters report] any attacks aimed at Fatah.

Earlier this month, Hamas said that it would cooperate [JURIST report] with a UN Human Rights Council [official website] mission sent to the region to investigate possible war crimes that occurred during hostilities with Israel. In February, Palestinian leaders asked the International Criminal Court (ICC) [official website] to consider prosecuting Israel authorities for war crimes it had allegedly committed in the Gaza region, but the ICC said it was not sure whether it would have jurisdiction over the region [JURIST report], because it was not recognized as a state by much of the international community. In January, Israeli government authorities responded [JURIST report] to Hamas violence directed at Israel by filing two letters of complaint [text; second letter text] with UN Secretary-General Ban Ki-moon and warned militants that they would pay a "heavy price" [AP report] if attacks continued.

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UN racism conference begins as US and other nations boycott
Jay Carmella on April 20, 2009 8:07 AM ET

[JURIST] The UN Durban Review Conference on racism [official website] began on Monday with the UN Secretary-General Ban Ki-moon [official profile; JURIST news archive] expressing concerns [press release] over the decision by the US and several other countries to boycott the summit. The US, along with Australia, Canada, Germany, Israel, Italy, Netherlands, and New Zealand, decided to boycott to conference due the draft declaration's position on Israel and the Middle East. Additionally, the selection of Iranian president Mahmoud Ahmadinejad [official profile; JURIST news archive] as a speaker at the conference has led to protests [NYT report] from the Israeli government. Ban defended the draft declaration, saying:

The document before us is carefully balanced. It addresses key issues. It sets the stage for concrete action in a global campaign for justice for victims of racism worldwide. I deeply regret that some have chosen to stand aside. I hope they will not do so for long.

Like Theodore Roosevelt, among others, my allegiance and sympathies have always been with the men and women in the arena, struggling with courage and determination to win the day. It may be easier to criticize those efforts from afar, but it does not advance the universal cause. We need you.
The conference is first of its kind since 2001. Many critics viewed the 2001 conference has being anti-Israel, which undoubtedly led to the heightened concerns leading up to this year's conference.

Last month, the US initially threatened [JURIST report] to boycott [Washington Post report] the conference due to the document draft's bias against Israel. The US has refused to continue negotiations [press release] on the document that the Department of State believes "must not single out any one country or conflict, nor embrace the troubling concept of 'defamation of religion' [and] ... should not go further than the DDPA on the issue of reparations for slavery." In preparation of the conference, the UN Human Rights Council (UNHRC) [official website] passed a resolution [JURIST report] last month calling for laws against defamation of religion.

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Witness testifies about execution at ex-Khmer Rouge leader 'Duch' trial
Tere Miller-Sporrer on April 20, 2009 7:13 AM ET

[JURIST] A witness in the trial of former Khmer Rogue [BBC backgrounder] leader Kaing Guek Eav [TrialWatch backgrounder, JURIST news archive], also known as "Duch," testified Monday about his uncle's execution by Kaing and other crimes committed at the prison camp M-13. The witness, Chan Veoun, testified before the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] that while he worked at the prison he observed [AFP report] not only his uncle's execution but also saw Kaing once burn a woman's breasts and said that shackled prisoners would be left to drown in pits during the monsoon season. Kaing, who admitted responsibility [JURIST post] for the deaths of prisoners at the S-21 prison, denies everything revealed in Chan's testimony. The M-13 camp is outside the court's jurisdiction, but testimony about events there has been admitted to establish Kaing's role in the Khmer Rouge regime. In the coming week, the ECCC will hear testimony [Phnom Penh Post report] from former S-21 staff and survivors.

Kaing recently requested release to 'safe house' [JURIST report] during Cambodia genocide trial, though he lost a similar appeal [JURIST report] of his pre-trial detention in 2007. His trial is the first of eight [JURIST report] that the ECCC hopes to hear against former members of the Khmer Rouge, which has been accused of murdering 1.7 million Cambodians [PPU backgrounder] during its nearly four-year reign. The ECCC has long been plagued with accusations of corruption and inadequate funding, with greater problems in recent years. In March, the ECCC reported that it would be unable to pay its Cambodian employees [JURIST report] for that month, one year after the court had requested $114 million dollars from the UN [JURIST report]. In February, Human Rights Watch warned that the ECCC trials were in danger of being tainted for their failure to follow fair trial standards [JURIST report], and in January a Cambodian court agreed to hear a corruption case [JURIST report] involving two ECCC judges.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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