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Legal news from Friday, August 20, 2010




EU court temporarily exempts Inuit from seal hunting ban
Hillary Stemple on August 20, 2010 3:12 PM ET

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[JURIST] The EU General Court [official website] has issued a temporary injunction exempting Inuit hunters from Canada and Greenland from an EU ban on seal hunting that went into effect on Friday. Regulation (EC) No 1007/2009 [text, PDF] recognizes seals as "sentient beings that can experience pain, distress, fear and other forms of suffering," and bans all imports containing seal products. In January, representatives of Canada's Inuit population filed suit in the EU General Court [JURIST report] challenging the ban on seal products, arguing that the hunting represented a traditional aspect of the Inuit's lifestyle. The plaintiffs in the case made the court decision public [AFP report] on Thursday, although the interpretation of the exemption is still being debated. A spokesperson for the EU's executive branch indicated that the exemption applied only to the plaintiffs in the lawsuit, while a lawyer for the plaintiffs stated that he believed the regulation was effectively suspended. The EU has been given until September 7 [AP report] to respond to the injunction.

The Canadian government took action [press release] against the ban in November, initiating the World Trade Organization (WTO) [official website] dispute resolution process by requesting consultations. The ban follows extensive public pressure [CBC report] to end seal hunting by groups citing humanitarian considerations. More narrow European restrictions imposed in 1983 caused the industry to suffer a sharp decline. Commercial seal hunting is an economic and cultural staple for the Inuit, who contend that their methods are necessary and humane.




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Dutch prosecutors open investigation into officer conduct in Srebrenica
Sarah Miley on August 20, 2010 3:02 PM ET

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[JURIST] The Dutch National Prosecution Office [official website, in Dutch] announced Friday that it will open an investigation [press release, in Dutch] into whether Dutch peacekeeping soldiers should face criminal charges for their actions during the 1995 Srebrenica massacre [JURIST news archive] in Bosnia. The inquiry was commenced after relatives of victims began proceedings against three soldiers for failing to protect their family members by forcing the victims out of a UN-designated "safe area" [resolution materials] and turning them over to Bosnian Serbs. Srebrenica was under protection of Dutch soldiers serving under the UN when Bosnian Serbs attacked, killing more than 8,000 Bosnian Muslims. The relatives claim that, by handing over their family members to the insurgents, the soldiers colluded in genocide [Reuters report]. The prosecution office stated that the investigation would take several month to complete, at which time prosecutors will determine whether to pursue criminal charges.

In March, The Hague Appeals Court [official website, in Dutch] upheld [JURIST report] the UN's immunity from prosecution by rejecting claims brought by relatives of Srebrenica victims, known as the Mothers of Srebrenica. The accusations were similar to those currently faced by the Dutch solders, claiming the UN failed to protect their family members in the designated "safe area." The court found that immunity is essential to the UN's ability to carry out its duties and that the Dutch, acting as UN peacekeepers, could not be held responsible. The decision upheld the district court's 2008 decision to dismiss the claims [JURIST report]. The Mothers of Srebrenica have vowed to appeal the case to the Netherlands Supreme Court and the European Court of Justice (ECJ) [official websites] if necessary.




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Thailand court approves US extradition of suspected Russia arms dealer
Hillary Stemple on August 20, 2010 11:10 AM ET

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[JURIST] An appeals court in Thailand ruled Friday that accused Russian arms dealer Viktor Bout [BBC profile] can be extradited to the US to face charges [indictment, PDF] including conspiracy to kill US nationals and conspiracy to provide material support to a proscribe terrorist group. The court's decision overturned a decision issued by the Bangkok Criminal Court last August, refusing to extradite Bout [JURIST report] on the basis that the accusations made by the US were not cognizable under Thai law. The appeals court ruled that the Revolutionary Armed Forces of Colombia (FARC) [GlobalSecurity backgrounder], the group Bout is accused of supporting, is a cognizable terrorist group [Guardian report] under Thai law and that Thailand is obligated to honor their extradition treaties with the US. Lawyers for Bout argued that his safety would be in jeopardy in the US and that he would be unable to receive a fair trial. They have also indicated that they will continue fighting Bout's extradition by filing an appeal with the Thai government. A spokesperson for the US Department of Justice (DOJ) [official website], praised [statement] the court's decision:
We are extremely pleased that the Appeals Court in Thailand has granted the extradition of Viktor Bout to the United States on charges of conspiring to sell weapons to a terrorist organization for use in killing Americans. We have always felt that the facts of the case, the relevant Thai law and the terms of our bilateral extradition treaty clearly supported the extradition of Mr. Bout on these charges.
He also indicated that Bout's prosecution is a top priority for the DOJ. Russian officials have questioned the role of the US in lobbying [CNN report] for the court's decision and indicated that Russia will continue working to obtain his release. Bout must be extradited to the US within three months or be released from Thai custody.

Last July, Russian organized crime leader and suspected weapons trafficker Semyon Mogilevich [FBI profile], who is wanted by the US, was released [JURIST report] by a Russian court. Mogilevich is unlikely to stand trial on US racketeering, securities fraud, wire fraud, mail fraud and money laundering charges, as the US and Russia do not have an extradition treaty. In March 2009, Armenian international arms dealer Artur Solomonyan was sentenced to 22 years in prison [JURIST report] for arranging to sell shoulder-fired surface-to-air missiles, rocket-propelled grenades and other Russian-made weaponry to a confidential informant posing as an al Qaeda operative.




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Guatemala ex-president ordered to stand trial for embezzlement
Hillary Stemple on August 20, 2010 9:12 AM ET

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[JURIST] A Guatemalan judge ruled Wednesday that former president Alfonso Portillo [CIDOB profile, in Spanish] and two of his former ministers will stand trial on charges of embezzlement. Portillo, president of Guatemala from 2000-2004, is accused of diverting approximately USD $15 million in funds from the Ministry of Defense. The ministers of finance and defense who served under Portillo face similar charges. The judge issued his ruling after the International Commission Against Impunity in Guatemala (CICIG) [official website, in Spanish] provided sufficient evidence to the court of Portillo's corruption. The judge's determination was also aided by evidence provided by the French government [AFP report, in Spanish] showing that bank accounts were established in the names of members of Portillo's family in order to launder the money. The documentation also showed that Portillo transferred money between accounts in the US, France, Luxembourg, Switzerland and Liechtenstein. Lawyers for the men maintain their innocence, arguing that they were acting within the country's constitutional limits. The trial is scheduled to begin in September.

In March, a Guatemalan court ruled that Portillo can be extradited to the US [JURIST report] to face charges of money laundering. He is accused of taking $15.8 million from funds designated for the Guatemalan Ministry of Defense and siphoning it into bank accounts in Europe and Bermuda. Portillo was arrested [BBC report] in January following an arrest warrant issued by Guatemala [JURIST report] based on the US indictment. In 2008, Portillo was extradited [JURIST report] back to Guatemala from Mexico, where he had fled after his immunity expired along with his term in office. The extradition order was first signed [JURIST report] in 2006, but Portillo challenged it until the Mexican Supreme Court [official website, in Spanish] ruled against him in January 2008. Portillo will have to stand trial in Guatemala [CP report] before he can be extradited to the US.




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Rights groups urge Cameroon to decriminalize same-sex acts
Ann Riley on August 20, 2010 8:41 AM ET

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[JURIST] Human Rights Watch (HRW) and Alternatives-Cameroun [advocacy websites] on Thursday urged the government of Cameroon [BBC backgrounder; JURIST news archive] to decriminalize consensual sexual acts between adults of the same sex [press release]. Under Article 347 of the Cameroon Penal Code [DHS backgrounder], same-sex acts are subject to a punishment of six months to five years in prison. The groups called on the Cameroon government to implement the July recommendations [report, DOC] of the UN Human Rights Committee (UNHRC) [official website]. After a periodic review [press release] of Cameroon's implementation of the International Covenant on Civil and Political Rights (ICCPR) [text], the UNHRC urged Cameroon to immediately decriminalize consenting same-sex acts, address negative social stigmas of same-sex relationships and express its intolerance of discrimination, harassment and violence because of sexual orientation. The UNHRC also expressed concern that the criminalization of same-sex acts impedes the effectiveness of HIV and AIDS prevention programs. Director of Alternatives-Cameroun Steave Nemande cited the need to support sexual tolerance and education programs:
By implementing this recommendation, Cameroon would do the bare minimum to realize the fundamental human rights enshrined in its national constitution. To save lives, the government should immediately start implementing effective education programs to combat HIV/AIDS.
In June, HRW and Alternatives-Cameroun told the UNHRC that the Cameroon government's discriminatory policies deny access to HIV prevention programs and health services, treatment and care to those engaging in same-sex acts.

According to a 2009 Amnesty International (AI) [advocacy website] report [text, PDF; abstract], the Cameroon government participated in and encouraged unlawful executions, torture and other human rights violations [JURIST report]. The report alleges that such violations have been taking place for more than 10 years and may increase with the current global economic crisis and continued political unrest. According to the report, the actions by many governmental officials violate national law as well as the ICCPR. The ICCPR guarantees the right of equal treatment and the right of equal protection under the law, without discrimination. In 1994, the UNHRC held in Toonen v. Australia [case materials] that sexual orientation is included in the protections against discrimination in the ICCPR.




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SEC charges New Jersey with securities fraud
Ann Riley on August 20, 2010 7:24 AM ET

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[JURIST] The US Securities and Exchange Commission (SEC) [official website] announced [press release] Wednesday that it has charged [order, PDF] the state of New Jersey with securities fraud for failing to disclose to municipal bond investors that it was underfunding two of the state's largest pension plans. Between August 2001 and August 2007, New Jersey sold more than $26 billion in municipal bonds and in the 79 offerings misrepresented material information in regard to the Teachers' Pension and Annuity Fund (TPAF) and the Public Employees' Retirement System (PERS) [official websites] in violation of Sections 17(a)(2) and 17(a)(3) of the Securities Act of 1933 [text, PDF; Cornell LII backgrounder]. New Jersey failed to disclose that it was underfunding TPAF and PERS in official preliminary disclosures, official statements and continuing disclosures, while creating a false impression that the pension plans were being adequately funded. SEC Chief of the Municipal Securities and Public Pensions Unit Elaine C. Greenberg stated:
Issuers of municipal bonds must be held accountable when they seek to borrow the public's money using offering documents containing false and misleading information. New Jersey hid its financial challenges from the very people who are most concerned about the state's financial health when investing in its future.
The SEC initiated its inquiry into New Jersey's bond offerings in April 2007, and, following the investigation, the state disclosed the inquiry on subsequent bond disclosure documents. Specifically, New Jersey omitted pertinent information regarding 2001 legislation [A3506 text] that increased retirement benefits for employees and retirees enrolled in TPAF and PERS and established Benefit Enhancement Funds (BEF) to cover the costs associated with the increased benefits. Also, the state did not adequately disclose details regarding the use of a five-year "phase-in-plan" to begin making contributions to TPAF and PERS. According to the New Jersey Office of the Attorney General [official website], in the Spring of 2007, the State took remedial actions [press release] set forth in the SEC order by employing an independent counsel to advise the State of its disclosure obligations and update and clarify pension disclosures on bond offering documents. Also, New Jersey established formal disclosure policies, procedures, and training programs and created a committee to oversee the disclosure process. New Jersey, the first state ever charged with securities fraud by the SEC, has agreed to settle the case without admitting or denying the findings.

In a similar case, the SEC sued [JURIST report] five former San Diego city officials in 2008, alleging they committed securities fraud by failing to disclose funding shortfalls in the city's pension and health care plans to potential buyers and sellers of San Diego's municipal bonds. An independent audit conducted in 2006 uncovered numerous securities law violations [JURIST report] and recommended that an independent monitor supervise the San Diego pension system and report back to the SEC, and that city officials be required to personally certify the accuracy of pension reports, a requirement that the Sarbanes-Oxley Act [text, PDF; SEC materials] imposed on corporations in the wake of the Enron scandal [JURIST news archive]. The audit also criticized outside consultants hired by San Diego to administer the pension plan for failing to fully investigate problems with the pension system.




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