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Legal news from Tuesday, December 6, 2011

HRW report: lesbians and transgender men face discrimination in South Africa
Michael Haggerson on December 6, 2011 3:26 PM ET

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[JURIST] Lesbians and transgender men in South Africa face discrimination and fear violence on a daily basis from both private individuals and government officials, Human Rights Watch (HRW) [advocacy website] reported [text, PDF; press release] on Monday. The report argues that the government has failed to protect lesbians and transgender men under the "equality clause" [text] of the South African Bill of Rights. The report recommends that government publicly denounce gender-based violence, increase awareness of the Bill of Rights' equality clause and policies of nondiscrimination and decrease barriers to prosecuting cases of sexual and physical violence based on gender orientation:
South Africa already has in place many laws and policies to address sexual violence and discrimination; what is sorely lacking is effective implementation of those provisions. It is incumbent upon the South African government to take immediate steps to honor its promise of equality, non-discrimination, and a life of dignity for lesbians, gay men, and bisexual and transgender people; failing to do so betrays the constitution, imperiling the rights of all South Africans.
HRW also urged the UN and African Union to support South Africa's efforts and to ensure the country meets its obligations under international law.

In June South Africa introduced the "Human rights, sexual orientation and gender identity" resolution [JURIST report] which was passed by the UN Human Rights Council [official website]. South Africa was the only African nation to vote for the passage of the resolution. The UN has faced difficulty passing resolutions on gay rights issues, due to no international consensus on the morality of homosexuality. Last year, UN Secretary General Ban Ki-moon [official website] called for countries around the world to abolish laws discriminating against gay and lesbian individuals [JURIST report]. Two years ago, the UN passed a gay rights declaration [text, PDF], which the US signed and sponsored [JURIST report]. The declaration, a nonbinding measure that does not have the full force of a resolution, called on states to end criminalization and persecution of homosexuals. This declaration was recalled by the new resolution. Although 85 countries signed the declaration [US Ambassador statement], 57 countries, primarily in Africa and the Middle East, signed an opposing statement. The year before, the UN General Assembly [official website] was divided over the issue of decriminalizing homosexuality [JURIST report] as 66 nations signed a statement calling for decriminalization, and nearly 60 nations signed an opposing statement. As of the 2011 International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) [advocacy website] State-Sponsored Homophobia report [text, PDF], 76 countries still criminalize same-sex relationships, and five enforce the death penalty against homosexuals.

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International election fraud monitor concerned about Russia election process
Michael Haggerson on December 6, 2011 2:01 PM ET

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[JURIST] The Organization for Security and Co-operation in Europe (OSCE) [official website] issued preliminary findings [text, PDF; press release] on Sunday stating that the Russian election was "characterized by frequent procedural violations and instances of apparent manipulation." The report noted that the vote count was assessed was "bad or very bad" in 34 of 115 observed polling stations, voting counts were interrupted and taken out of the view of monitors, there were indications of ballot stuffing in 17 polling stations, vote counting errors were noted in 35 polling stations and in several instances election observers were not shown marked ballots of expelled from the polling station during the counting process. The US State Department [official website] called for an investigation [press conference, video; transcript] into the allegations of election fraud and expressed concern over "harassment" [NYT report] of election monitoring groups, such as Golos [advocacy website]. In addition to evidence of ballot stuffing found by OSCE, there have also been indications of other voting fraud [The Observers report] including erasable ink pens being given to voters, ballots being falsified, "carousel" voting where one individual votes at multiple polling centers and unsealed ballot boxes. Despite the alleged voting fraud, the ruling United Russia [party website, in Russian] party of Russian Prime Minister Vladimir Putin [official website; JURIST news archive] lost 77 seats in the State Duma [official website, in Russian], Russia's parliament, barely maintaining its majority.

There were allegations of voting fraud in both the 2007 and 2008 Russia elections as well. In 2008 the Parliamentary Assembly of the Council of Europe (PACE) [official website] expressed concerns [JURIST report] about Russia's presidential elections due to alleged media restrictions and polling irregularities. In 2007 election monitoring groups Transparency International [advocacy website] and Golos stated that Russia's parliamentary elections were rife with fraud and corruption [JURIST report]. Election observers from PACE and OSCE said the parliamentary elections were "not held on a level playing field" [JURIST report] due to strong media bias towards Putin and the United Russia party leading up to the election, widespread reports of harassment of opposition parties and a new election code that made it more difficult for smaller political parties go gain the seven percent of the vote necessary to serve on the State Duma. They also called Putin's merging of the state with the United Russia party an abuse of power.

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EU antitrust commission to investigate Apple e-book dealings
Matthew Pomy on December 6, 2011 12:06 PM ET

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[JURIST] The European Commission for Competition [official website] announced Tuesday that it will investigate Apple [corporate website] for anti-competitive practices in connection with its dealings with several publishers. The investigation is allowed by Article 11(6) of the Antitrust Regulation [text]. The Commission will probe whether Apple colluded with publishing companies, Hachette Livre, Harper Collins, Simon & Schuster, Penguin and Verlagsgruppe Georg von Holzbrinck, to increase e-book prices. The Commission outlined the focus of the investigation:
Whether these publishing groups and Apple have engaged in illegal agreements or practices that would have the object or the effect of restricting competition in the EU or in the EEA. The Commission is also examining the character and terms of the agency agreements entered into by the above named five publishers and retailers for the sale of e-books. The Commission has concerns, that these practices may breach EU antitrust rules that prohibit cartels and restrictive business practices (Article 101 of the Treaty on the Functioning of the European Union - TFEU) [text].
The Commission assured that the investigation is not a prejudgement of the outcome.

Apple has recently been involved with a number of legal disputes, including a class action lawsuit [JURIST report] in the US District Court for the Northern District of California [official website] dealing with the same matter. The class action lawsuit claims that Apple's conduct constitutes violations of federal and state antitrust laws, including the Sherman Act, the Cartwright Act and the Unfair Competition Act [texts]. In July, Apple prevailed in a complaint [JURIST report] against HTC [corporate website] when the US International Trade Commission (USITC) [official website] ruled against HTC [JURIST report] for infringement of patents related to cell phones that run the Android operating system (OS). Apple filed a complaint against Samsung [JURIST report] earlier that month in an effort to bar importation of Samsung's smartphones and tablets. Apple claimed Samsung's "Galaxy" line copies its iPhone and iPad technology. Apple is also involved in two other suits with Samsung dealing with patent infringements, one in the U.S. {JURIST report] and one in London [Bloomberg report]. In June, Nokia announced that it had reached an agreement with apple [press release; JURIST report] settling all patent disputes between the parties and directing Apple to pay royalties to Nokia for the term of the agreement.

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ICC prosecutor: DRC election violence will not be tolerated
Rebecca DiLeonardo on December 6, 2011 11:08 AM ET

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[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] said Tuesday that he will continue to monitor post-election violence [statement] in the Democratic Republic of the Congo (DRC). Moreno-Ocampo said that he is in the process of requesting information from DRC authorities and that he would investigate allegations of violence by government security forces as well as armed political groups. He emphasized that he will not depart from his November commitment to prosecute election violence [JURIST report]. Moreno-Ocampo warned political leaders of the consequences of continued violence:
Leaders from all sides must understand this: my Office is watching the situation in the DRC very closely. As we have shown in both Kenya and Cote d'Ivoire, planning and executing attacks on civilians for electoral gain will not be tolerated. This Court can investigate and prosecute you if you are responsible for committing ICC crimes, irrespective of position, and irrespective of political affiliation. I urge leaders, commanders, and politicians on all sides to calm your supporters. Electoral violence is no longer a ticket to power, I assure you. It is a ticket to The Hague.
Moreno-Ocampo noted that he welcomed the investigation of violence by national authorities in the DRC and that his office would continue to monitor these efforts.

The DRC has faced significant international pressure to ensure fair elections and prevent election violence. Last week, Human Rights Watch (HRW) [advocacy website] urged the DRC government to prevent violence [JURIST report] after a report found that 18 civilians had been killed and about 100 seriously wounded during unrest following the presidential elections on November 28. Also last week, top UN officials with the UN Organization Stabilization Mission in the Democratic Republic of Congo (MONUSCO) [official website] decried [JURIST report] post-election violence in the DRC and called for restraint. MONUSCO urged all parties to remain calm and await the decision of the seven-member Independent National Electoral Commission (CENI) on the preliminary results of the elections. Last month, Moreno-Ocampo said his office would prosecute individuals involved election violence in the DRC. The chief prosecutor's warning came just days after the UN Joint Human Rights Office (UNJHRO) [official website] on urged the DRC government to take action to abolish election-related violence [JURIST report] before the presidential election on November 28.

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Asia-Pacific region executes more people than rest of world: report
Jaimie Cremeans on December 6, 2011 11:04 AM ET

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[JURIST] A group of 14 Asian countries in the Asia-Pacific region execute more people than the rest of the world combined, the Anti-Death Penalty Asia Network [advocacy website] said Monday. The report, When Justice Fails: Thousands Executed in Asia After Unfair Trials [text, PDF], argues that these countries' legal systems fail to meet international standards, such as torture, mandatory death sentences, presumed guilt, right to counsel and other factors that contribute to unjust trials and convictions. The report also examines case studies from individuals facing trials in China, India, Indonesia, Japan, Malaysia, Singapore, Taiwan and Pakistan. It states:
In compiling this report, a number of cases have been reviewed which clearly demonstrate that who will be executed and who will be spared is often determined not only by the nature of the crimes but also the defendants' ethnic or other identity, their economic or social status, or their ability to understand and navigate through the trial process, the availability or adequacy of legal aid and defence counsel, and other factors that determine whether they are able to challenge unfairness in a criminal justice system that propels them towards death.
ADPAN's goal is abolition of the death penalty, as it says "only abolition ... can guarantee that no innocent person will be executed." For countries that refuse to abolish it, the group advocates that they at least comply with international standards for fair trials that do not violate human rights.

Last year, Amnesty International [advocacy website] released a report saying the number of countries using the death penalty is decreasing [JURIST report]. At that time, though, Asia still had the highest number of executions, executing more people than the rest of the world combined. ADPAN has been working since 2006 to achieve abolition of the death penalty in all Asia-Pacific countries.

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UN rights chief condemns Yemen violence, urges investigation
Brandon Gatto on December 6, 2011 10:45 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Tuesday urged all sides in Yemen to cease ongoing deadly attacks [press release] and live up to previous commitments to investigate the serious human rights violations of its former government, calling for an immediate and impartial investigation. Ravina Shamdasani, a spokeswoman for the UN Office of the High Commissioner for Human Rights (OHCHR) [official website], condemned all Yemeni factions [press release] after claiming that as many as 22 people have been killed in the city of Taiz by shootings and shellings [Al Jazeera report] since December 1, including two children. Despite tanks withdrawing from the city under a ceasefire pact to end violence that has consumed the country for nearly 10 months, witnesses and activists have claimed that forces loyal to former Yemeni president Ali Abdullah Saleh [official website, in Arabic; JURIST news archive] shot and killed a woman protester in Taiz just this week. Shamdasani added that the ongoing severity of the clashes between armed rebels and the Yemeni army warrant an immediate intervention by the OHCHR, and she called on Yemeni government officials to allow a UN investigation as soon as possible. The Yemeni government has yet to issue a response.

Yemen has been faced with calls for human rights investigations consistently throughout its government's transition. Last week, Nobel peace laureate Tawakkul Karman [BBC profile; Nobel profile] urged the International Criminal Court (ICC) [official website] to investigate [JURIST report] Saleh's violent crackdown on dissent and alleged human rights violations while in power. In September, the UN Security Council [official website] called on Yemen to comply with international law [JURIST report] and end ongoing violence against protesters that resulted in the deaths of at least 49 people [Al Jazeera report] shortly following Saleh's return as president after a three-month absence. The OHCHR has also previously urged a UN intervention [JURIST report] in Yemen after verifying that the Yemeni government was indeed firing on peaceful protesters. Saleh clung to the presidency throughout nearly 10 months of protests and violence despite agreeing to step down [JURIST report] in April, shortly following his attempt to remove presidential term limits [JURIST report] and expand his political authority.

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Mali gold mining industry violating child labor laws: HRW
Sarah Posner on December 6, 2011 10:38 AM ET

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[JURIST] More than 20,000 children are subjected to harsh and unsafe conditions [press release] while working in Malian gold mines, Human Rights Watch (HRW) [advocacy website] reported [text, PDF] Tuesday. Children reportedly carry heavy ore from the mining shafts and are exposed to mercury inhalation, which causes severe health problems. The gold mined by Malian children as young as six years old is then exported through the international stream of commerce with Switzerland and the United Arab Emirates as the industry's two major purchasers. Although Mali's government adopted a National Action Plan for the Elimination of Child Labor in June 2011, HRW says the plan has not been adequately enforced. HRW reports that there is no regulation or inspection of the mines, even though under both Malian and international law hazardous labor is prohibited for children under the age of 18. Furthermore, the Mali government has allegedly failed to provide education for the children working in mines, and those who do attend school struggle academically. Most of the children work in the mines with their parents to supplement the family income. However, children who work alone in the mines are sometimes exploited and abused by relatives or other people who take their pay and some girls are sexually abused. The report calls on all governments to:
support a strong international legally binding instrument on mercury that requires governments to implement mandatory action plans for mercury reduction in artisanal gold mining. The action plans should include strategies to end the use of mercury by children and pregnant women working in mining, and public health strategies to address the health effects of mercury poisoning.
HRW urged the Mali government and international donors to take actions to end the dangerous practice of child labor in Mali's gold mines.

In November, HRW reported that Chinese copper mining companies in Zambia routinely violate national and international labor standards [JURIST report]. The report described poor health and safety standards, regular 12-hour and 18-hour work shifts and anti-union activity. Workers also reportedly face the threat of being fired if they refuse to work under unsafe conditions. Although not reported to the government, injuries and health standards are in violation of Zambian and international labor law. In October, the US Court of Appeals for the Ninth Circuit [official website] reinstated [JURIST report] a lawsuit by Papua New Guinea [BBC backgrounder] citizens against mining company Rio Tinto [corporate website] on claims of genocide and war crimes. Allowing the suit under the Alien Tort Statute [text], the court ruled that it may proceed due to the Australian mining company's substantial operations in the US.

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Second tobacco company challenges new Australia packaging law
Hillary Stemple on December 6, 2011 9:21 AM ET

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[JURIST] A second major tobacco company, Imperial Tobacco, Ltd. [corporate website], on Tuesday filed an action in Australia's High Court [official website] challenging the country's new tobacco packaging laws. Last month, Parliament [official website] approved [JURIST report] the Tobacco Plain Packaging Bill [text], which removes descriptive colors and logos from cigarette boxes and requires a depiction of the negative effects of smoking. Imperial argues that the law violates the Australian Constitution [materials] because it allows the government to take the intellectual property of private companies [Reuters report] without compensation. Tobacco companies challenging the law also maintain that the law will dramatically decrease the value of their brands [AP report]. The Australian government has indicated that they expected challenges to the law, but ultimately believe the law will be allowed to go into effect. The law is currently scheduled to go into effect on December 1, 2012.

Last week, a similar lawsuit was filed [JURIST report] with the High Court by British American Tobacco (BAT) [corporate website]. BAT argued that the new law would flood the black market with fake cigarettes and that the taxpayers would lose out on billions of dollars as a result of lost excise taxes. The High Court could decide to hear the BAT and Imperial cases together. In November, Philip Morris Asia Ltd. (PMA) [corporate website] initiated legal proceedings [JURIST report] on behalf of its Australian subsidiary Philip Morris Ltd. [corporate website]. One hour after the legislation passed, PMA, a Hong Kong based company, filed a Notice of Arbitration under Australia's Bilateral Investment Treaty with Hong Kong [text, PDF], arguing that the law violates the trade deal between Australia and Hong Kong. PMA has also threatened further litigation [AP report] related to the law. Tobacco export countries including Nicaragua, Dominican Republic and Ukraine have also indicated that they may challenge the law as a violation of global trade rules.

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US hedge fund founder begins 11-year sentence
Drew Singer on December 6, 2011 7:56 AM ET

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[JURIST] Former Galleon Group hedge fund executive Raj Rajaratnam [JURIST news archive] on Monday began serving his prison sentence at a Massachusetts military base. A judge in October sentenced [JURIST report] Rajaratnam to 11 years in prison, fined him $10 million and ordered he forfeit an additional $53.8 million. The 11-year sentence was significantly lower than the 24 1/2-year sentence requested by prosecutors and less than the 19 1/2-year minimum indicated by the non-obligatory federal sentencing guidelines. Even so, Rajaratnam's sentence is the longest term ever imposed for insider trading and is part of a trend of tougher sentences for white-collar criminals precipitated in part by the federal sentencing guidelines which Congress passed in 1987. Calling his crime an assault on free markets and a virus in business culture in need of eradication, Judge Richard Holwell cited Rajaratnam's charitable financial help for victims of the tsunami in Sri Lanka, the earthquakes in Pakistan and the 9/11 attacks, as well as his impeding kidney failure due to advanced Type II diabetes as reasons for the comparatively lenient sentence.

Rajaratnam was convicted of 14 counts of insider trading [JURIST report] in May in the largest hedge fund insider trading case in US history. Several other defendants have pleaded guilty in connection with the case. Danielle Chiesi pleaded guilty [JURIST report] in January. Former IBM senior vice president Robert Moffat was sentenced to six months in prison in September and ordered him to pay a $50,000 fine for his role in the scheme after pleading guilty [JURIST reports] in March 2010. Former Intel Capital executive Rajiv Goel pleaded guilty [JURIST report] to insider trading charges in February 2010. Rajaratnam, Chiesi, Goel and Moffat were arrested in October 2009 and charged [complaint, PDF] along with two 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 originally pleaded not guilty [JURIST report] in December 2009 after being indicted for insider trading.

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