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Legal news from Thursday, June 11, 2009

South Korea court rules against Microsoft in antitrust suit
Christian Ehret on June 11, 2009 3:09 PM ET

[JURIST] A South Korean court ruled Thursday that Microsoft [corporate website] violated antitrust regulations by packaging software with the Windows operating system, but dismissed requests for damages from two Korean software firms. The suit alleged [Yonhap News report] that the company's packaging of MSN Messenger and Windows Media Player with their operating system caused financial damage to competitors Digito.com and Sanview Technology, Inc [corporate websites, in Korean]. The Seoul District Court acknowledged that such conduct was an antitrust violation and an abuse of a dominant market position but ultimately dismissed the multi-million dollar claims on the grounds that the damages were not sufficiently linked to Microsoft's conduct. The court held that the claimants' lost market share was a result of price competitiveness or a failure to properly market overseas.

Microsoft has frequently faced antitrust and unfair competition claims. In February, Google [corporate website] sought to join a European Commission (EC) [official website] antitrust suit against Microsoft that accused the company of hindering competition. Google's actions followed an EC issuance of a Statement of Objections (SO) [press release] to Microsoft, alleging that the software company violated an EC Treaty provision [Article 82 text] that prohibits the abuse of a dominant market position by bundling its Internet Explorer web browser with the Windows operating system. The SO was based on legal principles confirmed in a 2004 European Commission action [materials; JURIST report] against Microsoft that directed the company to unbundle its media player from the operating system. That landmark ruling required Microsoft to share technical information with competitors and lower its prices, but Microsoft failed to comply with the judgment and the EC assessed a record fine [JURIST report] of €899 million ($1.3 billion). In May 2008, Microsoft filed an appeal [JURIST report] with the European Court of First Instance [official website], seeking to annul the fine. In response to the European decision and other judgments, Microsoft has instituted an Antitrust Compliance Committee [official website].

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Europe court rules terror suspect asset freeze violates fundamental rights
Christian Ehret on June 11, 2009 1:29 PM ET

[JURIST] The European Union Court of First Instance [official website] ruled [judgment materials] Thursday that an EU-ordered asset freeze of a Jordanian terrorist suspect lacked judicial review, violating the suspect's fundamental rights. The assets of Muslim cleric Abu Qatada [BBC profile] were frozen in 2001 pursuant to a UN Security Council [official website] resolution, which specified entities and persons who must be subjected to such restrictive actions. Qatada, also known as Omar Mohammed Othman, was one of the enumerated subjects in the resolution, identified by his alleged association with Osama bin Laden. The court held that the regulation prohibiting the use of his assets was "adopted without furnishing any guarantee enabling him to put his case to the competent authorities," constituting an unjustified restriction of his right to property. The court only annulled the regulation as it applied to Qatada and ordered the Council of the European Union [official website] to pay costs.

Qatada was granted political asylum by the UK in 1994. When he was arrested in 2001 under the Prevention of Terrorism Act 1989, police seized a sizable sum of money in various currencies for which no explanation was given. Later in 2001, he went into hiding to avoid being arrested and detained under the then-proposed Anti-Terrorism, Crime and Security Act 2001. He was arrested again in 2002 and held until March 2005 when he was released pursuant to a House of Lords judgment declaring his detention sans trial unlawful. In February, the European Court of Human Rights (ECHR) [official website] ordered the UK to pay £2,500 in damages to Qatada after determining that his imprisonment violated the European Convention on Human Rights [official website]. Despite his previous grant of asylum and fears of torture and persecution, UK Law Lords in February ruled that Qatada could be returned [JURIST report] to Jordan to face terrorism charges. The February decision overruled an April 2008 Court of Appeal decision blocking his deportation [JURIST report].

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Annan extends Kenya election violence tribunal deadline
Christian Ehret on June 11, 2009 12:06 PM ET

[JURIST] Kenya has until the end of August to establish a tribunal to try the leaders behind the 2007 post-election violence [JURIST report], former UN secretary-general Kofi Annan [official website] told the BBC [report] Thursday. If the country does not meet the August deadline, which was originally set for March, Annan plans to give the International Criminal Court (ICC) [official website] a sealed list of key suspects for prosecution. Annan said that Kenyan leaders are going to make another attempt to establish the tribunal following the expiration of a prior two-month extension [JURIST report] until May. The violence arose out of demonstrations against alleged election fraud and vote-rigging that followed the narrow 2007 victory of Kenyan President Mwai Kibaki [official profile] and resulted in the death of approximately 1,500 people. Following the contested election, Annan facilitated a power-sharing agreement [JURIST report] between Kibaki and opposition leader Raila Odinga [official profile], which named Odinga as Kenya's first prime minister. Annan stressed the importance of the tribunal, saying:

I think Kenya would be much better off with that trial taking place in their midst. They are collectively and individually responsible and they should work with the speaker and their fellow parliamentarians to establish the court for the sake of justice - the victims deserve justice.

In February, the Kenyan Parliament rejected [press release; JURIST report] the Constitution of Kenya (Amendment) Bill, 2009 [text, PDF] and the Special Tribunal for Kenya Bill, 2009 [text, PDF], which sought to establish the special tribunal. Before Annan granted his initial extension of the tribunal deadline in February, Odinga maintained [press release; JURIST report] that the government would be able to convene the court despite parliamentary opposition and allegations [JURIST report] that government officials had attempted to bribe or blackmail MPs into voting for its creation.

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Four Uighur Guantanamo detainees transferred to Bermuda
Jaclyn Belczyk on June 11, 2009 11:25 AM ET

[JURIST] Four Uighurs held at the Guantanamo Bay [JURIST news archives] detention facility have been released from US custody Thursday and transferred to Bermuda [DOJ press release]. The US Department of Justice (DOJ) [official website] reported that the four detainees had been cleared for release by the interagency Guantanamo Review Task Force and were transferred pursuant to an agreement with the government of Bermuda. Lawyers for the detainees, who had been held at Guantanamo for seven years, welcomed their transfer [press release]. Bingham McCutchen partner Susan Baker Manning said, "These men should never have been at Guantanamo. They were picked up by mistake. And when the U.S. government realized its mistake, it continued to imprison them merely because they are refugees."

Thirteen Uighurs still remain in US custody at Guantanamo. The Uighurs' release was ordered [opinion and order, PDF; JURIST report] by a US district court in October, but that decision was overturned [opinion, PDF; JURIST report] in February by the US Court of Appeals for the DC Circuit [official website]. They have appealed [JURIST report] to the US Supreme Court [official website]. If the remaining Uighurs are transferred before the Court decides to hear their case, it will likely be dismissed as moot. On Wednesday, Palau President Johnson Toribiong said that his government had reached an agreement with the US to accept [JURIST report] all 17 Uighur detainees. US officials said later that no final agreement had been reached. On Thursday, Torigiong said that the offer was motivated by human rights concerns [JURIST report] and not by the Chinese government's reaction. Also Thursday, the Chinese government again demanded the repatriation of the Uighurs. The Chinese maintain that the Uighurs are members of the East Turkestan Islamic Movement (ETIM) [CFR backgrounder], a militant group that calls for separation from China and has been a US-designated terrorist group since 2002. The US has previously rejected China's calls to repatriate [JURIST report] the Uighurs, citing fear of torture upon their return.

5:15 PM ET - The DOJ has announced the transfer [press release] of an Iraqi national and a Chadian national back to their home countries.

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US authorities charge 24 with theft of Native American cultural property
Christian Ehret on June 11, 2009 10:40 AM ET

[JURIST] US authorities on Wednesday charged 24 individuals [press release] with looting Native American artifacts from public land. The accused are charged [indictment materials] with violations of the Archaeological Resource Protection Act (ARPA) [text, PDF] and the Native American Graves Protection and Repatriation Act (NAGPRA) [text] in connection with the theft of 256 artifacts worth $335,685. The ARPA prohibits the excavation and exchange of archaeological resources from federal lands, and NAGPRA mandates the repatriation of certain objects to the tribes. The defendants are additionally charged with theft and depredation of government property and theft of Indian tribal property. The alleged thefts took place in the "four corners" region of Utah, Arizona, Colorado, and New Mexico and include pottery, burial and ceremonial masks, and other artifacts. The two-year investigation leading up to the arrests was the largest US investigation of archaeological and cultural artifact thefts. Secretary of the Interior Ken Salazar [official profile] addressed the thefts at a news conference:

Let this case serve notice to anyone who is considering breaking these laws and trampling our nation's cultural heritage that the BLM, the Department of Justice, and the federal government will track you down and bring you to justice. As these alleged criminals are prosecuted and as federal agents continue to hunt down wrong doers, BLM cultural resources staff will work to ensure the proper recovery, identification, repatriation, and storage of the artifacts that have been confiscated.
Deputy Attorney General David Ogden [official profile] discussed the Justice Department's role:
These archaeological treasures are precious and protecting them preserves a rich history and heritage. That is why the Justice Department will use all of its tools to vigorously enforce the laws designed to safeguard the cultural heritage of Native Americans. Recommitting resources and focus to criminal justice in Indian Country is of paramount importance to the Justice Department.
Those charged include excavators, dealers and collectors.

The federal government continues to grapple with many Native American legal issues, in addition to the repatriation of artifacts. Last year, a federal judge awarded Native American plaintiffs [JURIST report] $455 million in a class action suit concerning the US government's alleged mismanagement of trust funds. Also last year, the US Senate Indian Affairs Committee [official website] held hearings on a bill designed to give Native American authorities a broader authority to combat violent and sex-related crimes.

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Palau offer to accept Uighur detainees not motivated by Chinese reaction: report
Jaclyn Belczyk on June 11, 2009 10:19 AM ET

[JURIST] Palau President Johnson Toribiong told the Associated Press Thursday that his offer to accept [JURIST report] 17 Uighur detainees held at Guantanamo Bay [JURIST news archives] was motivated by human rights concerns [AP report] and not by the Chinese government's reaction. The Palau government, which grants diplomatic recognition to Taiwan, not China, reportedly granted the US government's request to resettle the detainees for the sole reason that they believe their continued detention is unlawful. Also Thursday, the Chinese government again demanded the repatriation of the Uighurs. Foreign Ministry [official website, in Chinese] spokesperson Qin Gang said [press conference transcript, in Chinese]:

The Chinese side demands that the US fulfill the UN Security Council resolutions and obligations under international counter-terrorism, and stop the transfer of terrorist suspects to any third country, to repatriate them to China as soon as possible. China is also opposed to any third country accepting these terrorist suspects.

The Chinese maintain that the Uighurs are members of the East Turkestan Islamic Movement (ETIM) [CFR backgrounder], a militant group that calls for separation from China and has been a US-designated terrorist group since 2002. The US has previously rejected China's calls to repatriate [JURIST report] the Uighurs, citing fear of torture upon their return.

The Uighurs' release was ordered [opinion and order, PDF; JURIST report] by a US district court in October, but that decision was overturned [opinion, PDF; JURIST report] in February by the US Court of Appeals for the DC Circuit [official website], and the Uighurs remain in custody. They have appealed [JURIST report] to the US Supreme Court [official website]. Last week, the Canadian government refused a US request to accept the Uighur detainees. In May, Republican leaders in the House of Representatives [official website] proposed a bill [JURIST report] that, if passed, might block a proposed plan to accept up to seven Uighur detainees [JURIST report] into the US after US Attorney General Eric Holder [official profile] announced in March that the US would consider accepting all 17 detainees [JURIST report].

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China rights lawyer challenges Internet filtering policy
Christian Ehret on June 11, 2009 8:25 AM ET

[JURIST] Chinese human rights lawyer Li Fangping has challenged a government mandate requiring Internet filter software on all new personal computers, according to media reports Thursday. Fangping demanded public hearings [Reuters report] from the Ministry of Industry and Information Technology (MIIT) [official website, in Chinese] to determine if the requirement is lawful and reasonable. The software, called "Green Dam," blocks web content [China Daily report] containing content such as pornography, drugs, homosexuality, or violence, but apparently does not filter political content. The developers of the software confirmed the general categories of restricted content but declined to share a more specified list with the media. Announced Tuesday by the MIIT, the compulsory policy aims to protect children from "harmful" content and takes effect on July 1. In a press conference [transcript], Foreign Ministry [official website, in Chinese] spokesperson Qin Gang maintained that the Internet in China is open but that the government can regulate it in accordance with law to safeguard the public. There have been concerns about security vulnerabilities [Sina report, in Chinese] that the software might create, putting users' personal information at risk. According to a poll by Sina [media website, in Chinese], 83 percent of those asked were opposed to the software.

Internet censorship in China has been a contested issue for several years. While the MIIT oversees the censorship, the State Council Information Office and the Communist Party's Propaganda Department determines the scope of what is blocked. During the 2008 Olympics, while the government was supposed to refrain from Internet censorship, the Global Internet Freedom Consortium [advocacy website] provided software to reporters to circumvent Internet restrictions [press release]. In 2007, Thailand passed a law [JURIST report] aimed at quashing Internet pornography and libel to allow authorities to confiscate and search private computers. Also in 2007, Google [corporate website] urged the US government to fight the rise of global Internet censorship, calling it the "single greatest trade barrier we currently face." According to a report [HRW report] released by Human Rights Watch (HRW) [advocacy website] in 2006, nine state-licensed Internet access providers ultimately control access to foreign networks for all users and retail service providers.

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Europe court finds Turkish government responsible for domestic violence killing
Jaclyn Belczyk on June 11, 2009 8:13 AM ET

[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [judgment text; press release] Wednesday that the Turkish government is responsible for the death of a woman at the hands of her ex-husband. The court found that in failing to prevent the woman's death, Turkey had violated her right to life under Article 2 of the European Convention on Human Rights [text, PDF]. The court also found a violation of Article 3, the prohibition of torture, and Article 14, the prohibition of discrimination. The court held:

The research conducted by the aforementioned organisations indicates that when victims report domestic violence to police stations, police officers do not investigate their complaints but seek to assume the role of mediator by trying to convince the victims to return home and drop their complaint. In this connection, police officers consider the problem as a "family matter with which they cannot interfere."

It also transpires from these reports that there are unreasonable delays in issuing injunctions by the courts ... because the courts treat them as a form of divorce action and not as an urgent action. Delays are also frequent when it comes to serving injunctions on the aggressors, given the negative attitude of the police officers. Moreover, the perpetrators of domestic violence do not seem to receive dissuasive punishments, because the courts mitigate sentences on the grounds of custom, tradition or honour.

As a result of these problems, the aforementioned reports suggest that domestic violence is tolerated by the authorities and that the remedies indicated by the Government do not function effectively. ...

In the light of the foregoing, the Court considers that the applicant has been able to show, supported by unchallenged statistical information, the existence of a prima facie indication that the domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence.
The court ordered the Turkish government to pay €30,000 in damages to the victim's daughter. This marks the first time [DW report] the court has ruled against a state in a domestic violence case.

Domestic violence continues to be a global problem, as it often goes unpunished. In September, the India Ministry of Women and Child Development (WCD) [official website] announced that it would review [JURIST report] the country's controversial anti-dowry [BBC backgrounder] act because increasing numbers of Indian women had issued complaints about misuse. Despite legislation controlling the cultural and religious practice, India's dowry system continues illegally, leaving many women subject to abuse without enforcement of legal protections from so-called "dowry deaths" [backgrounder]. In 2006, the Council of Europe (COE) [official website] released a report [COE press release; JURIST report] criticizing France's human rights record and identifying impunity for domestic violence as a shortcoming in the French judicial system.

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House judiciary committee recommends impeachment of convicted federal judge
Devin Montgomery on June 11, 2009 7:35 AM ET

[JURIST] The US House Judiciary Committee [official website] voted [recorded video, RealPlayer] 29-0 Wednesday to approve four articles of impeachment [text] against US district court judge Samuel Kent [official profile] based on his conviction [JURIST report] for obstruction of justice [18 USC § 1512(c)(2) text] in connection with the alleged sexual harassment of his secretary and former case manager. The articles charged that Kent had "engaged in conduct ... incompatible with the trust and confidence placed in him as a judge," "corruptly obstructed, influenced, or impeded an official proceeding," and "made material false and misleading statements ... to agents of the Federal Bureau of Investigation," and were recommended to the committee [recorded video, RealPlayer] by a special subcommittee on Tuesday. Kent had tendered his resignation [JURIST report] to President Barack Obama effective June 2010, but a disciplinary panel from the Fifth Circuit has urged [certification letter, PDF; JURIST report] that he be removed more promptly. The articles now go to the full House of Representatives, and if approved, would result in the first impeachment of a federal judge in over 20 years.

In February, Kent pleaded guilty to lying to a judicial panel [Fifth Circuit materials] investigating sexual harassment allegations made by his former case manager and legal secretary. He was sentenced [JURIST report] in May to 33 months in prison and ordered to pay a $1,000 fine and $6,500 in restitution as part of his plea agreement [text, PDF]. In 2007, the American Bar Association (ABA) [professional association] adopted new policies reforming the Model Code of Judicial Conduct [JURIST report], which for the first time included prohibitions against sexual harassment, although some advocacy groups believe these changes do not go far enough [AP report].

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Iraq authorities to release US contractors accused of killing American
Brian Jackson on June 11, 2009 7:30 AM ET

[JURIST] Three US contractors arrested for the killing of another contractor will be released due to insufficient evidence against them, their lawyers said Wednesday. Two other men are still being held [Washington Times report], but are expected to be released shortly. The five men were arrested [JURIST report] and accused of stabbing Jim Kitterman inside the Baghdad Green Zone [GlobalSecurity backgrounder] in what is believed to be the first criminal killing since the Green Zone was formed in 2003. If the men had not been released, they would have been the first Americans to stand trial under the new Status of Forces Agreement (SOFA) [text, PDF] between the US and Iraq, which removed immunity previously held by all American contractors. The suspects, whom both US and Iraqi authorities declined to identify, are expected to be released shortly [AP report].

The trial, had it occurred, would have been one of the few tests of the new SOFA since it took effect in early 2009. In April, Iraq Prime Minister Nouri al-Maliki claimed that a US military raid in Iraq violated the SOFA [JURIST report] because notice of the military operation was not given to the Joint Military Operations Coordination Committee. Al-Maliki said that he wanted to subject the US forces responsible for the raid to judicial proceedings. The SOFA was signed [JURIST report] in December in anticipation of the expiration of the UN mandate allowing US military presence in Iraq.

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For more legal news check the Paper Chase Archive...


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

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