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Legal news from Friday, June 4, 2010

Kazakhstan president declines to sign bill extending powers
Sarah Miley on June 4, 2010 3:37 PM ET

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[JURIST] Kazakh President Nursultan Nazarbayev [official website; BBC profile] on Thursday announced during a local TV broadcast that he will not sign a controversial law that would grant him several presidential powers for life, even if he stepped down from office. Nazarbayev would be given a significant amount of power [RFE/RL report] under the amendment, including being named the "leader of the nation." In addition, Nazarbayev would receive immunity from investigation or prosecution for life. The bill would make it illegal to deface images of him, distort facts of his biography, or publicly insult him and would guarantee that all his property and holdings cannot be confiscated for any reason. Nazarbayev's supporters believe that the president has earned such protections due to his ability as a nation builder. Opponents have urged the president not to sign the bill [AP report]. The draft law moved quickly through Kazakhstan's parliament earlier this month with the upper and lower houses [JURIST reports] approving the bill in under a week. The amendment has been criticized both internationally and domestically with opponents accusing Nazarbayev's supporters of trying to install a constitutional monarchy.

Kazakhstan has come under increased scrutiny as the first former Soviet republic to chair the Organization for Security and Cooperation in Europe (OSCE) [official website], a role it assumed at the beginning of 2010. In March, Amnesty International (AI) [advocacy website] published a report criticizing the government [JURIST report] for failing to curb torture. In February, Kazakh non-governmental organizations asked [submission, PDF] the UN Human Rights Council [official website] to address instances of torture and the use of unlawful evidence obtained through torture during trial. In August, Reporters Without Borders [advocacy website] condemned a Kazakh high court decision upholding the conviction [JURIST report] of a journalist charged with publishing state secrets. In December 2008, Human Rights Watch [advocacy website] said that the former Soviet nation is falling short [JURIST report] on reforms promised in advance of their assumption of the OSCE chairmanship.

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Tobacco companies join lawsuit against NYC statute requiring anti-smoking signs
Hillary Stemple on June 4, 2010 3:06 PM ET

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[JURIST] Three tobacco companies on Thursday joined a lawsuit [complaint, PDF] challenging a New York City Department of Health [official website] regulation [text, PDF] requiring stores to display graphic anti-tobacco ads where tobacco products are sold. Altria Group, Lorillard, and Reynolds American [corporate websites] joined the suit filed by New York City retailers in the US District Court for the Southern District of New York [official website] to challenge the regulation as a violation of First Amendment [text] freedom of speech. The suit also contends that the local action was preempted by the Cigarette Labeling and Advertising Act [text], in which Congress reserved control over the content of cigarette labeling and advertising to the federal government. The act specifically prohibits states and municipalities from imposing any requirement or prohibition based on smoking and health with respect to the advertising of cigarettes. The parties have asked the court to enter a preliminary injunction against the enforcement of the regulation pending a resolution of the lawsuit.

This lawsuit is not the first by tobacco companies challenging regulations on First Amendment grounds. Last August, several tobacco companies filed a federal lawsuit [JURIST report] challenging the Family Smoking Prevention and Tobacco Control Act [text, PDF] as a violation of First Amendment rights. President Barack Obama signed the act into law last June, two weeks after it was approved by Congress [JURIST reports]. The law attempts to safeguard the public by granting the Food and Drug Administration (FDA) [official website] certain authority to regulate tobacco products, among other provisions. Last year, the House Energy and Commerce Committee [official website] voted 38-12 to approve the bill [JURIST report]. The US Senate Health, Education, Labor and Pensions Committee [official website] approved a similar bill [JURIST report] in August 2007.

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Convicted Mumbai gunman appeals death sentence
Hillary Stemple on June 4, 2010 2:15 PM ET

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[JURIST] Authorities in India announced Friday that Mohammad Ajmal Amir Kasab [NDTV profile], the lone gunmen to survive the three-day siege of Mumbai [BBC backgrounder; JURIST news archive] that killed 166 in November 2008, has filed an appeal challenging his conviction. Kasab, a Pakistani national, was convicted last month [JURIST report] for his role in the terrorist attack, which was allegedly coordinated by Pakistani militant group Lashkar-e-Taiba (LeT) [CFR backgrounder]. He was sentenced to death after the prosecution sought the death penalty [JURIST reports], citing eight aggravating circumstances [TNN report]. In addition to appealing his conviction, Kasab is requesting that a lawyer be provided to help argue his case. Two Indian alleged accomplices tried with Kasab were acquitted on all charges of helping to plan the attacks. The Indian government is currently determining whether to appeal [PTI report] the acquittals. If an appeal of the acquittals is filed, the Bombay High Court [official website] would hear the cases simultaneously.

Judge ML Tahiliyani, specially appointed [PTI report] in January 2009 to preside over the trial of three suspects detained after the attacks, heard closing arguments [JURIST report] in the case in March. In January, Tahiliyani denied [JURIST report] Kasab's request for an international trial. Kasab claimed that he would not receive a fair trial in India. In December, Kasab withdrew his confession [JURIST report], claiming he was tortured and framed by police. Kasab originally pleaded not guilty last year, but interrupted his trial to confess and change his plea to guilty [JURIST reports] in July. Tahiliyani continued the trial [JURIST report] despite Kasab's confession, ruling that it was incomplete but should be entered into the record.

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Argentina ex-military officials go on trial for 'Dirty War' crimes
Sarah Miley on June 4, 2010 12:03 PM ET

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[JURIST] An Argentine federal court on Thursday commenced trial proceedings for five ex-military officials allegedly responsible for the death of 65 left-wing activists during the nation's 1976-83 "Dirty War" [GlobalSecurity backgrounder; JURIST news archive]. The former dictators are charged with the illegal detention, torture, and murder of detainees at a secret Buenos Aires facility known as Automotores Orletti. The detentions were part of "Operation Condor" [BBC backgrounder], a campaign by the governments of Argentina, Brazil, Bolivia, Chile, Uruguay, and Paraguay to round up left-wing dissidents. The defendants allegedly used Orletti, a former auto-body shop, as a front for a tactical operations center [AP report] to extract information from activists during Operation Condor. The men include two former intelligence officers, Honorio Martinez Ruiz and Eduardo Ruffo, former general Eduardo Cabanillas, former colonel Ruben Visuara, and former military intelligence agent Raul Guglielminetti. A sixth man, Vice Commander Nestor Guillamondegui is also also facing charges for the atrocities at Orletti, but his trial has been delayed due to health reasons.

Argentina continues to prosecute those accused of committing human rights abuses during the Dirty War. Last month, Argentine authorities arrested [JURIST report] former secret service agent Miguel Angel Furci on charges of human rights abuses. Furci, a former agent of the Secretariat of State Intelligence (SIDE), was charged with 70 kidnappings and the torture of detainees at Orletti. Also in May, the Spanish government extradited [JURIST report] pilot Julio Alberto Poch to Argentina to face trial for his alleged role. Poch was a navy officer at Argentina's Naval Mechanics School [backgrounder, in Spanish], one of the most notorious detention centers of the military dictatorship, and is believed to have piloted flights known as "death flights," which were used to dump the military junta's political opponents into the Plata River and the Atlantic Ocean. Earlier in May, former Argentine military junta leader Jorge Rafael Videla [Trial Watch profile; JURIST news archive] was charged [JURIST report] with an additional 49 counts of murder, kidnapping, and torture for crimes allegedly committed during the Dirty War. In April, a federal court in Argentina sentenced [JURIST report] former president and military general Reynaldo Bignone [JURIST news archive] to 25 years in prison for human rights abuses during his 1982 to 1983 presidency. During the Dirty War, an estimated 20,000 to 30,000 people were forcibly kidnapped or "disappeared" in a government-sponsored campaign against suspected dissidents.

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UN officials urge probe into killing of DR Congo rights activist
Hillary Stemple on June 4, 2010 11:28 AM ET

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[JURIST] Senior UN officials on Thursday condemned the killing of human rights activist Floribert Chebeya in the Democratic Republic of Congo (DRC) [BBC country profile] and called for an investigation into his murder. Chebeya was found dead in his car on Wednesday, one day after being asked to attend a meeting at the office of the inspector general of the national police. UN Secretary General Ban Ki-moon [official profile] praised Chebeya [statement] saying, "[h]is reputation as a champion of human rights earned him the respect and admiration of his compatriots and of the international community. His work will be remembered as a tribute to Congolese perseverance." Ban also called for a "transparent and independent" investigation "with full respect for due process and rule of law." UN High Commissioner for Human Rights Navi Pillay [official website] noted Chebeya's achievements saying [statement], "[h]e believed in the cause of human rights and was not afraid to pursue it against all odds." Pillay also expressed concern over the "growing trend of intimidation and harassment of human rights defenders, journalists, political opponents as well as victims and witnesses in the DRC." She also called for an investigation into Chebeya's murder.

Human rights have long been a major concern in the DRC. In December, Human Rights Watch (HRW) [advocacy website] urged the UN Organization Mission in DR Congo [official website] to stop funding military groups [JURIST report] in the country that are committing human rights abuses. In December 2008, Amnesty International (AI) [advocacy website] reported [JURIST report] that rape and sexual warfare have been employed by both the DRC military and by rebel forces. In November 2008, MUNOC head Alan Doss [appointment release] condemned [JURIST report] the killing of civilians by militias in the country as war crimes. MONUC has been operating in DRC since 1999. The conflict in the DRC [Global Security backgrounder] has claimed more than four million lives and has been ongoing since 1983. MONUC has overseen elections and continues to provide armed protection for civilians in certain areas, particularly the North and South Kivus provinces.

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Iran supreme leader pardons 81 post-election protesters
Dwyer Arce on June 4, 2010 11:19 AM ET

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[JURIST] Iranian Supreme Leader Ayatollah Ali Khamenei [official website; BBC profile] on Wednesday pardoned or commuted the sentences of 81 protesters arrested following the disputed 2009 presidential election [BBC backgrounder; JURIST news archive]. The pardons were made upon the request [FNA report] of the head of the Supreme Judicial System of Iran [GlobaLex backgrounder], Ayatollah Sadeq Larijani [official website, in Farsi], who described the pardoned protesters as repentant. They were announced on the same day that defeated presidential candidates Mir Hossein Mousavi and Mehdi Karrubi [BBC profiles] applied for government permission [Bloomberg report] to hold demonstrations marking the one-year anniversary of the presidential elections. Pardons are common occurrences on national religious observances in Iran, and Wednesday marked the birth of Fatima [Iranica backgrounder], the daughter of the Prophet Muhammad, a revered figure in Shi'a Muslim [Oxford backgrounders] tradition.

The Iranian government arrested hundreds in a crackdown on anti-government activity in the wake of protests over the re-election of Iranian President Mahmoud Ahmadinejad [BBC profile; JURIST news archive] last June, drawing criticism from international human rights groups and advocacy organizations. A Tehran Revolutionary Court [official website, in Persian] in April sentenced [JURIST report] three prominent progressive activists to six years in prison in connection with protests. The men were high-ranking officials of the Islamic Iran Participation Front [party website, in Farsi], a pro-democracy reformist political party that supported opposition leader Mousavi in the disputed election. Iranian authorities jailed prominent Iranian journalist Mohammad Nourizad and reform movement leader Hossein Marashi [JURIST reports] on similar charges in April and March, respectively. Also in March, an Iranian appeals court upheld [JURIST report] the death sentence of 20-year-old student Mohammad Amin Valian, who took part in anti-government protests in December. In February, the US and EU jointly issued a statement condemning [JURIST report] Iran's action against protesters and political dissenters.

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UN rights experts call for end to secret prisons
Hillary Stemple on June 4, 2010 10:21 AM ET

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[JURIST] UN rights experts on Thursday called on the UN Human Rights Council [official website] to investigate findings from a report [text, PDF; JURIST report] released earlier this year detailing the secret imprisonment of terrorism [JURIST news archives] suspects by 66 countries including the US, Ethiopia, Romania, and Pakistan. UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Manfred Nowak [official website] indicated that secret prisons [JURIST news archive] remain a widespread problem [press release] and can often lead to torture. He also stated that fighting terrorism cannot be used as an excuse for torture or to subvert the judicial process. The report, presented to the UN General Assembly in February, criticized the use of secret prisons stating:
Secret detention violates the right to personal liberty and the prohibition of arbitrary arrest or detention. No jurisdiction should allow for individuals to be deprived of their liberty in secret for potentially indefinite periods, held outside the reach of the law, without the possibility of resorting to legal procedures, including habeas corpus.
Several countries taking part in the dialogue questioned the report's validity due to the anonymous information cited in the study.

The UN report is not the only report to link the incidence of torture to secret prisons. Last month, the Red Cross confirmed [JURIST report] the existence of a secret detention facility at Bagram Air Base [official website; JURIST news archive]. The confirmation came one month after nine Afghan witnesses claimed they were held and tortured in a secret US prison [JURIST report] at Bagram. In April, Human Rights Watch [advocacy website] detailed the repeated torture [press release; JURIST report] of Iraqi detainees in a secret prison in Baghdad. Last December, the Lithuanian Parliament reported [JURIST report] that the US Central Intelligence Agency (CIA) [official website] established two secret prisons for al Qaeda suspects in the country.

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Rights group praises conviction in Turkish prison torture case
Sarah Miley on June 4, 2010 9:41 AM ET

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[JURIST] Human Rights Watch (HRW) [official website] on Thursday lauded the Turkish government for its conviction of several prison and police officials [press release] for the torture and death of anti-government activist Engin Ceber while in police custody. Tuesday's conviction marks the first time a Turkish court has convicted a senior prison official for the conduct of guards under his command. Fuat Karaosmanoglu was sentenced to life imprisonment for knowingly allowing his guards to torture prisoners and failing to stop such conduct. The Istanbul 14th High Criminal Court also sentenced three guards to life imprisonment and two additional prison guards were also sentenced to more than seven years in prison for the torture of Ceber and two additional activists. All 19 defendants were convicted for their role in the activists' torture, including a prison doctor who was sentenced to more than three years for falsifying documents about the health of the inmates. HRW hopes the convictions are a turning point for Turkish government, which it says is well-known for absolving senior prison and police officials from criminal actions involving torture.
The authorities in Turkey have been notorious for protecting torturers. ... The Ceber case highlights the Turkish authorities' failure to protect detainees from torture in spite of improved procedural protections in recent years. ... Th[is] ... verdict should signal that the Turkish justice system will no longer turn a blind eye to torture and other ill-treatment. ... The convictions in the...case should signal a renewed commitment to end torture in Turkey, once and for all.
Ceber and his fellow activists were taken into custody in September 2008 and were subsequently transferred to Metris Prison in Istanbul, where Ceber informed his lawyer he was beaten regularly by prison guards. Ceber was taken to the hospital a few weeks later and pronounced dead as a result of a brain hemorrhage caused by the trauma.

Following Ceber's death in 2008, Turkish Justice Minister Mehmet Ali Sahin apologized on behalf of the Turkish government [JURIST report] and suspended the 19 defendants pending an investigation into Ceber's death. The landmark ruling comes during Turkey's struggle become a member-state of the EU. Turkish human rights and foreign relations are reportedly compromising the country's efforts toward EU accession, receiving mixed reviews [JURIST report] in October in the European Commission's annual reports on enlargement strategy and candidate progress [reports, PDF]. In May 2009, an EU advisory council said that Turkey should do more [JURIST report] in terms of judicial reform, protection of citizens' rights, and various other efforts in order to further its request for accession.

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US, EU emphasize human rights in counter-terrorism efforts
Dwyer Arce on June 4, 2010 9:26 AM ET

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[JURIST] A joint statement [text] issued by the US and EU on Thursday emphasized the need to respect international human rights and religious freedom in counter-terrorism efforts. The EU-US 2010 Declaration on Counter-Terrorism was adopted by the Council of the European Union [official website] and US representatives in Luxembourg. The declaration affirms the commitment of the US and EU governments to combat what was described as criminal and unjustifiable terrorist activity while respecting human rights law and religious freedom and expression. The declaration also calls on states to refrain from the use of racial or religious profiling and to abide by domestic constitutional law. Spanish Interior Minister Alfredo Perez Rubalcaba [official website], whose country holds the EU's rotating presidency, described the declaration as a message to the Islamic world [AFP report] and as establishing a unified US-EU terrorism strategy. Shortly after, the US State Department [official website] issued a statement [text] echoing these sentiments. The declaration comes a day in advance of an EU-Pakistan summit [RFERL report], which will be attended by Pakistani Prime Minister Yousuf Raza Gilani [BBC profile].

The US and European countries have faced criticism for their counter-terrorism policies. Earlier this week, the American Civil Liberties Union (ACLU) [advocacy website] called [JURIST report] on the administration of US President Barack Obama to stop shielding officials from the administration of former president George W. Bush [official profile] from civil suit and criminal prosecution in relation to the treatment of suspected terrorists in US custody. The organization warned that to do otherwise would only further impunity and cause "irreparable damage to the rule of law," imploring the US Department of Justice [official website] to expand the scope of its criminal investigation into the alleged mistreatment of detainees. In May, UK Foreign and Commonwealth Affairs Secretary William Hague [official profile] said that the UK will launch an investigation [JURIST report] into allegations that overseas UK operatives were complicit in torture. Hague stated that the new coalition government will initiate a judge-led inquiry into the allegations, but no details were outlined in the legislative program [text, PDF] published by Prime Minister David Cameron [official profile]. At least 12 men have filed lawsuits against the UK claiming the government knew or should have known about the torture the men experienced overseas.

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Federal court begins trial of Illinois ex-governor Blagojevich
Ann Riley on June 4, 2010 8:29 AM ET

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[JURIST] The US District Court for the Northern District of Illinois [official website] on Thursday began the trial of former Illinois governor Rod Blagojevich [JURIST news archive] on charges of federal honest services fraud, racketeering, attempted extortion, bribery, conspiracy to commit bribery, and conspiracy to commit extortion. US District Judge James Zagel questioned 29 potential jurors on the first day of jury selection, who, if picked, will remain anonymous [Chicago Tribune report] until the conclusion of the case. Prosecutors' key witnesses [AP report] include Blagojevich's former chiefs of staff John Harris and Alonzo Monk, both of whom have pleaded guilty to conspiring to solicit bribes and sell the Senate seat left vacant by President Barack Obama. The White House has confirmed reports that the defense has subpoenaed [Chicago Sun-Times report] Obama's Chief of Staff Rahm Emanuel and Senior Adviser Valerie Jarrett [official profiles] to testify.

Last week, the US Supreme Court [official website] denied Blagojevich's request to delay the start of his corruption trial by 30 days. Blagojevich had sought to postpone the start of his trial until the Supreme Court issues opinions in cases involving the federal honest services fraud statute [18 USC § 1346 text], arguing that it would be unfair to proceed with the trial if the Supreme Court were to declare the law unconstitutional. In April, the prosecution was ordered [JURIST report] to release a 91-page government proffer outlining evidence in its case against Blagojevich. According to the proffer, Blagojevich tried to sell the senate seat vacated by Obama, made appointments based on anticipated campaign contributions, and took kickbacks from a number of companies. In March, Blagojevich pleaded not guilty [JURIST report] to eight amended corruption charges. In January 2009, the Illinois State Senate voted unanimously [JURIST report] to convict Blagojevich of abuse of power and remove him from office. Blagojevich and Harris were initially arrested [JURIST report] in December 2008 on allegations that they had conspired to sell the Senate seat left vacant by Obama.

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European Commission to pursue legal action against UK for air pollution
Ann Riley on June 4, 2010 7:28 AM ET

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[JURIST] The European Commission [official website] announced Thursday that it would pursue legal action [press release] against the UK for its failure to comply with EU air quality standards. The Directive on ambient air quality and cleaner air for Europe [Directive 2008/50/EC materials] limits the concentrations of certain air pollutants, such as harmful airborne particulates called PM10, and requires action from member states to reduce pollution. The air quality directive also allows for member states to seek extensions to meet the standards where effort and extenuating external circumstances are demonstrated. The commission issued its final warning to the UK due to high levels of PM10 in London and Gibraltar that exceed the limits set by the directive. European Commissioner for the Environment Janez Potocnik [official website] said:
Air pollution is bad for our health. It reduces human life expectancy by more than eight months on average and by more than two years in the most polluted cities and regions. Member States must comply with EU air quality standards quickly and reduce air pollutant emissions.
The Commission may refer the case to the European Court of Justice (ECJ) [official website] if the UK fails take the necessary measures to comply with the air quality directive.

The commission first warned [JURIST report] member states, including the UK, for failing to comply with the heightened PM10 standards in January 2009. The commission rejected the UK's request for an exemption of the Greater London Area because it failed to show that it would reach the PM10 limit value by 2011. British authorities have recently submitted an additional exemption request for Greater London, which is still under assessment. The carcinogenic PM10 [EPA backgrounder] particles are emitted primarily by automobiles, industrial sources, and domestic heating systems. The European Commission, which is responsible for ensuring that EU law is applied throughout all member states and for taking legal action [JURIST report] against infringers, has led the charge for tightened environmental standards, including a 2007 proposal for all EU Member States to criminalize [JURIST report] serious environmental offenses and impose minimum sanctions for violations.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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