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Legal news from Wednesday, March 03, 2010

  • Supreme Court hears arguments on immunity for Somalia ex-PM
  • ICC prosecutor accuses officials in Kenya post-election violence investigation
  • Iran appeals court upholds death sentence for student protester
  • Former Yukos oil executive criticizes Russian justice system
  • Spain court sentences former Basque separatist leader for promoting terrorism
  • Washington becomes second state to adopt single-drug lethal injection protocol
  • East Timor court sentences rebels for presidential assassination attempt
  • Supreme Court refuses to block DC same-sex marriage law
  • Apple files patent infringement suit against rival phone maker HTC
  • EU court dismisses challenge to emissions trading rules

  • Wednesday, March 03, 2010

    Supreme Court hears arguments on immunity for Somalia ex-PM
    Jaclyn Belczyk at 2:54 PM ET

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    [JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in Samantar v. Yousuf [oral arguments transcript, PDF; JURIST report] on whether a foreign state's immunity under the Foreign Sovereign Immunities Act [materials] extends to an individual acting in an official capacity on behalf of the foreign state. The plaintiffs allege that former Somali defense minister and prime minister Mohamed Ali Samantar committed acts of torture during the regime of Somalian dictator Mohamed Siad Barre. They brought suit against Samantar, who now resides in Virginia, under the Torture Victims Protection Act [text]. The US Court of Appeals for the Fourth Circuit held that immunity did not apply to individuals [opinion, PDF], allowing the suit to proceed and reversing the district court's opinion. Counsel for the petitioner argued:
    The FSIA applies to suits against foreign officials for acts taken on the state's behalf, because such suits are the equivalent of a suit against the state directly. ...

    The Torture Victim Protection Act creates a cause of action but is silent about immunity, and therefore has to be interpreted consistently with background immunity principles and consistently with a preexisting statute codifying immunity...
    Counsel for the respondents argued:
    the Torture Victim Protection Act, in which Congress did create a cause of action was - that cause of action was created for - to impose a liability, personal liability, for acts that were done with "actual or apparent," but included with actual, authority of the foreign state.

    Now, if Congress believes that the FSIA immunized everyone who undertook acts under color of law, or at a minimum with actual authority of the foreign state, that was a very empty statute.
    The US supported respondents as amicus curiae.

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    ICC prosecutor accuses officials in Kenya post-election violence investigation
    Carrie Schimizzi at 1:17 PM ET

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    [JURIST] International Criminal Court (ICC) [official website] chief prosecutor Luis Moreno-Ocampo [official profile] on Wednesday submitted [press release] to ICC judges the names of 20 senior political and business leaders who “bear the gravest responsibility” for the deadly violence perpetrated after Kenya’s 2007 presidential election [JURIST news archive]. According to Moreno-Ocampo, the 20 officials, whose names are confidential, organized and financed the post-election attacks against civilians and have yet to face prosecution for their alleged crimes in Kenya. Ocampo stressed that the officials have not been formally charged, but remain under investigation:

    At this stage, the names are indicative only. The allegations concerning the named individuals will have to be measured against the evidence gathered independently by my office. If the Judges authorize the investigation, I will engage those who wish to clarify their role or provide further information.

    The list includes officials from both the Party for National Unity (PNU) and the rival Orange Democratic Movement (ODM), both of whom Ocampo alleges used their political and tribal power to achieve "political objectives to retain or gain power." Under the ICC's complementarity principle, the investigation may only proceed if Kenya does not conduct its own investigation into the matter, which it has thus far failed to do [JURIST report].

    Last month, the ICC judges requested that Ocampo provide additional information regarding his request to open a formal investigation [JURIST reports] into allegations of crimes against humanity committed during the post-election violence in Kenya. The judges stated that clarification and additional information was necessary to properly exercise their review function authorized under Article 15 of the Rome Statute [text]. The ICC assigned three judges [JURIST report] to the Kenyan situation in November after receiving a letter from Moreno-Ocampo in which he said that he intended to request formal authorization to initiate an investigation. Moreno-Ocampo's submission to investigate the Kenyan situation is historic, in that it is the first time he has used his proprio motu power, which allows him to initiate formal investigations upon authorization by the Pre-Trial Chamber. The allegations of fraud [JURIST report] following the 2007 elections led to violence that caused the deaths of more than 1,000 people and displacement of 500,000 others.

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    Iran appeals court upholds death sentence for student protester
    Haley Wojdowski at 12:14 PM ET

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    [JURIST] An Iranian appeals court on Wednesday upheld [Kaleme report, in Persian] the death sentence for a 20-year-old student who took part in anti-government protests in December. Mohammad Amin Valian was convicted [AFP report] of Moharebeh, which means waging war against God and is punishable by death under Iranian law. At trial, Vilian testified that he threw stones [AP report] at the security officers during the protests, but that he did not hit anyone. The protests [JURIST report], which interrupted the Shia Muslim celebration of Ashura, were the largest since those that followed the disputed presidential election [JURIST news archive] in June.

    Last month, an Iranian court sentenced one person to death [JURIST report] and eight others to prison for their involvement in the December protests. Also in February, Iranian authorities arrested [JURIST report] seven people for allegedly planning to provoke rioting on February 11, the anniversary of the 1979 Islamic Revolution [BBC backgrounder], including several in the employ of the US Central Intelligence Agency [official website]. The seven allegedly played a key role in the Ashura protests. The protests resulted in at least four deaths, numerous injuries, and more than 300 arrests.

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    Former Yukos oil executive criticizes Russian justice system
    David Manes at 11:33 AM ET

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    [JURIST] Former Russian oil executive Mikhail Khodorkovsky [defense website; JURIST news archive] on Wednesday criticized [text, in Russian] Russia's justice system as an "assembly line" that inevitably finds the government's political enemies to be guilty. In an article published in the newspaper Nezavisimaya Gazeta [media website, in Russian], Khodorkovsky warned that the current system must be reformed before change occurs "in Russia's traditional way," with violence. The former chief executive of the Yukos [JURIST news archive] oil company described [text, PDF; in English] the Russian justice system with an industrial metaphor:

    The System - the conveyor belt of a gigantic plant, which lives inside a logic of its own that does not submit, in general, to any kind of regulation from the outside. If you have become the feedstock raw material for this conveyor belt, then at the end of it there is always a Kalashnikov machine-gun, i.e. a guilty verdict. Any other outcome to the processing of the feedstock by the System is regarded as a defective product. Therefore - again, in general - you should abandon the very thought that somebody someplace is actually going to be try to figure something out and get to the bottom of things in your case.

    The statement echoes concerns Khodorkovsky has previously expressed about the fairness of Russian trials and the need for widespread reform of the Russian court system [JURIST reports].

    Khodorkovsky and his former business partner Platon Lebedev [defense website] are currently serving eight-year prison sentences after being convicted [JURIST report] in 2005 on fraud and tax evasion charges stemming from an attempt to embezzle and strip Yukos of valuable assets. In December, the Russian Supreme Court ruled [JURIST report] that the 2003 arrest of Platon Lebedev was illegal. The two are currently on trial on additional related charges of money laundering and embezzlement, to which they have pleaded not guilty [JURIST reports]. They could face up to 20 additional years in prison if convicted. Critics have claimed that the charges against Khodorkovsky and Lebedev are politically motivated due to Khodorkovsky's opposition against former Russian president and current Prime Minister Vladimir Putin [official website, in Russian; JURIST news archive].

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    Spain court sentences former Basque separatist leader for promoting terrorism
    Jay Carmella at 10:10 AM ET

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    [JURIST] The Spanish National Court [official website, in Spanish] on Tuesday sentenced [order, PDF; in Spanish] a former Basque separatist party leader to two years in prison for promoting terrorism. The court found [El Pais report, in spanish] that comments made during a 2005 speech by Arnaldo Otegi, a former leader of Batasuna [BBC backgrounder; JURIST news archive], the political wing of ETA [GlobalSecurity backgrounder; JURIST news archive], praised the terrorist acts committed by other ETA members. Otegi compared his imprisoned associates to South African leader Nelson Mandela [ANC backgrounder]. The court criticized the comparison because, unlike the ETA, which is blamed for more than 800 deaths, Mandela was nonviolent. The court also disqualified Otegi from holding public office for 16 years. Otegi faces additional charges that could result in up to 30 years in prison.

    The Spanish government continues to actively pursue charges against ETA. On Monday, the court accused [JURIST report] the Venezuelan government of aiding ETA in a plot to assassinate members of the Colombian government in Spain. Last month, the Interior Ministry of Spain [official website, in Spanish] said [JURIST report] that it took into custody the suspected ETA leader, along with two other people who are believed to be senior members of the group. In January, Spanish Judge Fernando Grande-Marlaska ruled [JURIST report] that ETA had tried three times to assassinate former Spanish prime minister Jose Maria Aznar in 2001 but had failed. Last June, the European Court of Human Rights (ECHR) [official website] upheld [JURIST report] Spain's ban of Basque political groups Batasuna and Herri Batasuna for their alleged ties to ETA.

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    Washington becomes second state to adopt single-drug lethal injection protocol
    Jay Carmella at 9:10 AM ET

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    [JURIST] Washington Attorney General Rob McKenna [official profile] filed a motion with the state Supreme Court [official website] Tuesday announcing the adoption of a single-drug execution method. The state had previously used a three-drug cocktail to lethally inject those sentenced to be executed. The change [AP report] comes as three death row inmates are challenging Washington's previous execution method that included the use of sodium thiopental, pancuronium bromide, and potassium chloride. The single-drug system will involve only the sodium thiopental. The state Supreme Court previously issued a stay [AP report] on the executions to allow more time to review the system. The Washington Department of Corrections [official website] is currently rewriting the state's execution policy Individuals sentenced to death can still choose the three-drug method or can choose to be hanged.

    Washington is the second state to make the move to a single-drug execution protocol. Ohio conducted the first single-drug execution [JURIST report] in December after the US Supreme Court [official website] rejected a last-minute stay application. Ohio became the first state to adopt [JURIST report] the single-drug protocol in November. The state undertook a review of its lethal injection practices in September after the planed execution of inmate Romell Broom failed [JURIST reports] when a suitable vein for the drugs' administration could not be found. The new protocol consists of the intravenous injection of a single anesthetic, and provides for the intramuscular injection of two other drugs if an appropriate vein cannot be found.

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    East Timor court sentences rebels for presidential assassination attempt
    Brian Jackson at 8:17 AM ET

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    [JURIST] A court in East Timor [BBC backgrounder] on Wednesday sentenced 24 individuals for the attempted assassination of the country's president and prime minister in 2008. The individuals, former government and military officials displaced after civil unrest resulted in a change in government in 2006, had been accused of attacking President Jose Ramos-Horta [BBC profile] at his home in the capital of Dili, resulting in injuries. Prime Minister Xanana Gusmao [BBC profile], the country's first president, was also attacked, but he escaped harm. Sentences varied for each defendant, with some receiving up to 16 years in prison [Al Jazeera report]. One of the most high-profile defendants, Angelita Pires, was found not guilty [SMH report]. Pires was romantically linked to Alfredo Reinado, a former military leader who led the attack on Horta. Reinado was killed in the attack, and Pires has long professed his innocence, going so far as to offer a defense that Reinado was lured to Horta's home in order to be assassinated. The attempted assassinations led to the declaration of a state of emergency [JURIST report] in East Timor, in an attempt to quell the long-standing tension between the government and those former members of the military.

    The attempted assassination of Horta and Gusmao is often cited as an important factor in the calming of tensions in the tumultuous country. Much of the conflict within East Timor stems from the country's attempts to gain independence from Indonesia in 1999, following a 25-year occupation. Last August, Horta, who won the 1996 Nobel Peace Prize for his work in attempting to resolve the Timor-Indonesian conflict, rejected a call for a criminal tribunal [JURIST report] to investigate abuses during the Timorese bid for independence, saying that such a tribunal would harm reconciliation between the two nations. The request for a criminal tribunal [JURIST report], to be appointed by the UN, had been made by Amnesty International [advocacy website], which cited the lack of investigation into abuses during that period. In 2008, Indonesia accepted a truth commission report [JURIST report] that indicated it was responsible for rights abuses during the 1999 referendum for independence.

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    Supreme Court refuses to block DC same-sex marriage law
    Steve Czajkowski at 8:07 AM ET

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    [JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday denied [opinion, PDF] an emergency appeal to prevent Washington DC's same-sex marriage [JURIST news archive] law from taking effect. Chief Justice John Roberts, acting as circuit justice for the DC area, denied an application [text, PDF] requesting a stay pending further review of the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 [text, PDF]. The request was filed by Reverend Harry Jackson and other petitioners seeking to delay enforcement of the new law. Roberts rejected the request because the court was unlikely to grant certiorari for the following reasons:
    First, as "a matter of judicial policy" - if not "judicial power" - "it has been the practice of the Court to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern."

    Second, the Act at issue was adopted by the Council and placed before Congress for the 30-day period of review required by the DC Charter. A joint resolution of disapproval by Congress would prevent the Act from going into effect, but Congress has chosen not to act.

    Finally, while petitioners' challenge to the Act by way of a referendum apparently will become moot when the Act goes into effect, petitioners have also pursued a ballot initiative, under related procedures in the DC Charter, that would give DC voters a similar opportunity to repeal the Act if they so choose. Their separate petition for a ballot initiative is now awaiting consideration by the DC Court of Appeals. ... [T]he DC Court of Appeals will have the chance to consider the relevant legal questions on their merits, and petitioners will have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time.
    The law entered into force Wednesday, and the DC Superior Court began accepting marriage license applications from same-sex couples.

    In December, the Council of the District of Columbia [official website] gave both its preliminary and final approval [JURIST reports] to the legislation. After the bill was signed by DC Mayor Adrian Fenty [official profile], the US Congress had 30 legislative days to veto it under the Home Rule Act [text, PDF], which it declined to do. DC has now become the sixth US jurisdiction to recognize marriage between same-sex couples, joining five US states: Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire [JURIST reports].

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    Apple files patent infringement suit against rival phone maker HTC
    Steve Czajkowski at 7:18 AM ET

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    [JURIST] Apple [corporate website] filed a lawsuit [complaint, PDF; press release] Tuesday in the US District Court for the District of Delaware [official website] against rival smartphone maker HTC [corporate website] alleging that several of HTC's products infringe 10 patents owned by Apple. The patents involve various areas of technology including hardware designs, touch-screen interfaces, and graphical user interfaces. Apple's CEO Steve Jobs [corporate profile] explained the reason for the lawsuit:

    We can sit by and watch competitors steal our patented inventions, or we can do something about it. We’ve decided to do something about it. We think competition is healthy, but competitors should create their own original technology, not steal ours.

    Apple also filed a complaint [text, PDF] against HTC with the US International Trade Commission (ITC) [official website] claiming infringement of 10 other Apple patents, seeking to bar the importation of infringing devices.

    Apple has recently been involved in numerous legal actions over alleged patent infringement. In October, Finnish telecommunications company Nokia [corporate website] filed suit [JURIST report] against Apple alleging that Apple infringed 10 of its patents since the first iPhone was released in 2007. The patents cover wireless data transmission, speech coding, and security/encryption, specifically GSM, UTMS (3G), and WLAN standards. In November 2008, EMT Technologies Inc. sued Apple, claiming that Apple infringed its patent [Computerworld report] for "apparatus and method of manipulating a region on a wireless device screen for viewing, zooming and scrolling Internet content." Earlier that year, Apple settled a 2007 suit [CNET report] with Klausner Technologies, which alleged Apple infringed a patent [CNET report] relating to its visual voicemail function. Also in 2007, Apple was sued for patent infringement based on the iPhone keyboard [Ars Technica report].

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    EU court dismisses challenge to emissions trading rules
    Gabriela Forbes at 6:16 AM ET

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    [JURIST] The General Court of the EU [official website] on Tuesday rejected [judgment; press release, PDF] a challenge to the EU's Emissions Trading Directive [text] brought by Luxembourg-based Arcelor [website], the world's largest steel producer. The company sought both the annulment of certain articles of the directive and damages for the harm suffered as a result of the adoption of the directive. It argued that several principles of community law were violated by certain provisions of the directive, including the right of property, the freedom to pursue an economic activity, the principle of equal treatment, freedom of establishment, and the principle of legal certainty. The General Court rejected Arcelor's claim that the directive led to an unequal treatment of operators, noting that the directive applies in a general and abstract manner to all operators. Regarding the application for damages, the court held that Arcelor had failed to prove the breach of the aforementioned principles.

    Under the EU emissions regulation scheme, based on community obligations under the UN Framework Convention on Climate Change [text] and the Kyoto Protocol [text; JURIST news archive], member states set thresholds on the quantity of emissions produced each year and allocate allowances to national producers. The Emissions Trading Directive was adopted in 2003 to encourage operators to reduce their greenhouse gas emissions, by allowing them to sell their surplus allowances to other operators.

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