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Legal news from Tuesday, April 6, 2010

Turkish ruling party submits new version of proposed constitutional amendments
Sarah Paulsworth on April 6, 2010 1:52 PM ET

[JURIST] Turkey's ruling Justice and Development Party (AKP) [party website, in Turkish] on Monday submitted a new version of their proposed Constitutional amendments [text, PDF; in Turkish] to the Grand National Assembly [official website, in Turkish]. The draft differs only slightly in substance from the previous version that the party submitted. One of the new additions is a proposal to alter Article 157 of the Constitution [text, in Turkish] so that judges of the Military Supreme Administrative Court would have judicial immunity and be shielded from spurious claims. Perhaps the most significant difference between the old and new versions is the signatures. The new version has signatures from 265 AKP representatives excluding Parliament Speaker Mehmet Ali Shahin [official profile, in Turkish]. Some controversy arose [Turkish Weekly report] after Shahin signed the first version because of his obligation to remain impartial as speaker. As a result, there was a strong likelihood that the proposed changes would have been dismissed for technical reasons. In light of the new proposal packet from AKP, a parliamentary committee meeting scheduled for Wednesday to discuss the previous version of the amendments was postponed.

The first version of AKP's proposed amendments was submitted to parliament [JURIST report] last Tuesday, despite warnings from Turkish President Abdullah Gul [BBC profile] that the party should take more precautions before amending the constitution. The reform package contains seven revisions [Hurriyet report] from the original amendments unveiled [JURIST report] at the end of March, including a highly-disputed reform to the judiciary system that would allow military and government officials to be tried in civilian court. The reform would also make it harder for the government to disband political parties that challenge the country's nationalist establishment and would ban the prosecution of the 1980 coup leaders. AKP says it created the amendments to promote democracy in Turkey and support its bid into the European Union (EU) [official website]. The proposed amendments have been met with opposition by Turkey's Supreme Court [official website, in Turkish]. In an interview in late March, the president of the court Hasan Gerceker [official profile, in Turkish] declared that the proposed amendments threaten separation of power and judicial independence [JURIST report].

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Federal appeals court strikes down FCC 'net neutrality' rules
Sarah Miley on April 6, 2010 12:54 PM ET

[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] ruled [opinion, PDF] Tuesday that the Federal Communications Commission (FCC) [official website] lacks authority to require broadband providers to treat all Internet traffic equally. The appeal was brought by cable giant Comcast [official website] to review whether the FCC has the authority to enforce its newly-developed "net neutrality" [backgrounder; JURIST news archive] regulations. The concept of net neutrality, supported unanimously by the FCC commissioners, is to allow for the open flow of information over the Internet, regardless of the amount of revenue generated by the information. The present case stems from an FCC sanction on Comcast for blocking customers' access to peer-to-peer (P2P) file sharing, which allows Internet users to share large files directly, potentially using a lot of bandwidth. The commission ruled that Comcast had "significantly impeded consumers' ability to access the content and use the applications of their choice." Comcast argued that its method of traffic flow management was used to prevent the degradation of Internet quality for its customers as a whole. The appeals agreed with Comcast, holding that the FCC failed to show that it had the authority to impose "net neutrality" restrictions on broadband providers:

[The FCC] relies principally on several congressional statements of policy, but under Supreme Court and D.C. Circuit case law statements of policy, by themselves, do not create 'statutorily mandated responsibilities. ... The commission also relies on various provisions of the Communications Act that do create such responsibilities, but for a variety of substantive and procedural reasons those provisions cannot support its exercise of ancillary authority over Comcast's network management practices.

The FCC responded [press release, PDF] that it "is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans."

The ruling could be a major setback for the FCC, which released a major broadband expansion plan [JURIST report] last month. The FCC's National Broadband Plan [materials] was sent to Congress for approval and seeks to enact regulations to update the communications infrastructure in the US and to make broadband service available to millions of Americans. The plan is mandated by provisions of the American Recovery and Reinvestment Act (ARRA) [materials]. Notable goals of the plan include providing 100 million households with affordable 100-megabits-per-second Internet service, making 500 megahertz of wireless spectrum available for licensed and unlicensed use by mobile applications, and ensuring that all children are literate in digital technology by the time they leave high school.

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Equatorial Guinea court sentences 7 Nigerians for palace attack
Ann Riley on April 6, 2010 11:52 AM ET

[JURIST] An Equatorial Guinea court on Monday sentenced seven Nigerians to 12 years in prison for a 2009 attack on the presidential palace. Court president Antonio Pascual Ojo Ebobo found the Nigerians guilty of terrorism [AFP report] and said they would be fined 149 million CFA francs (USD $310,000). The Nigerians, along with 11 Equatorial Guineans, were arrested [BBC report] after a February 2009 attack on Equatorial Guinea's presidential palace in Malabo. Security forces stopped the Nigerian gunmen, alleged members of the Movement for the Emancipation of the Niger River Delta (MEND) [GlobalSecurity backgrounder], who were supposedly guided by locals on mobile phones. The court also released four additional Equatorial Guineans, all members of the opposition People's Union Party, after freeing seven [SAPA report] last month for a lack of evidence.

Equatorial Guinea has a history of coups [JURIST news archive]. Last year, former British military officer with the elite Special Air Service [BBC backgrounder], Simon Mann [BBC profile, JURIST news archive], convicted [JURIST report] in 2008 of involvement in a 2004 coup attempt [BBC backgrounder], was released from prison after being pardoned [JURIST report] by President Teodoro Obiang Nguema Mbasogo [official profile]. Mann was arrested in 2004 after a plane carrying him and approximately 60 mercenaries landed in Zimbabwe. Admitting his involvement in planning the coup, Mann was sentenced in 2004 in Zimbabwe for weapons charges, and was deported [JURIST reports] to Equatorial Guinea in secret in February 2007. At his trial, Mann testified that Mark Thatcher [BBC profile], the son of former British Prime Minister Margaret Thatcher, was involved in the plot [JURIST report] to overthrow Mbasogo. Thatcher pleaded guilty [JURIST report] in South Africa in 2005 to charges related to the failed coup. The last successful coup in Equatorial Guinea was when the current president Mbasogo toppled his uncle in 1979.

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Turkish police detain 19 over alleged coup plot before chief prosecutor intervenes
Tara Tighe on April 6, 2010 11:31 AM ET

[JURIST] Turkish police on Monday detained 19 retired military officers, including four generals, in connection with an alleged 2003 coup plot, before the chief prosecutor intervened. Istanbul Chief Prosecutor Aykut Cengiz Engin stopped [Reuters report] police from arresting up to 90 suspects, replacing two lower-level prosecutors. The alleged coup plot, known as the Balyoz Security Operation Plan [Taraf report, in Turkish], or the "Sledgehammer plot," was originally revealed in January by the newspaper Taraf [media website, in Turkish]. The plot included detailed plans to bomb Istanbul mosques and provoke Greece into shooting down a Turkish plane as part of an effort by the military to undermine the government. The most recent arrests could increase existing tensions between military forces and the Turkish government.

The investigation into the alleged coup plot has led to heightened political unease and conflicting judicial results. In late February, Turkish officials brought charges [JURIST report] against 11 military officials in connection with the coup just one day after three high ranking military officials were released [JURIST reports]. The release came after Turkey's prime minister and president met with the head of the armed forces, General Ilker Basbug, to discuss potential resolutions to the increased political strain. In response to the initial exposure of the plot in January, Turkish officials detained more than 40 people and 12 military officers were charged [JURIST reports] in connection with the alleged coup plot. After the most recent round of arrests, almost 70 military officials have been detained in connection with the alleged plot.

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France oil company charged with corruption in Iraq oil-for-food scandal
Andrea Bottorff on April 6, 2010 9:46 AM ET

[JURIST] A Paris judge has charged French oil company Total [corporate website] with bribery and complicity in connection with a scandal involving the UN's Iraq Oil-for-Food program [official website, JURIST news archive], the company's lawyer confirmed Tuesday. Total announced the court's decision in its annual report last week but maintained that the company followed UN policy and acted lawfully [text, PDF]. Total CEO Christophe de Margerie [WSJ profile] claimed that the 2005 Volcker report, published by a UN-appointed Independent Inquiry Committee [official website] investigating corruption in the oil-for-food scandal, had eliminated all bribery complaints related to the UN program. The investigation found that oil companies like Total allegedly paid Iraqi officials over $1.5 billion in illegal kickbacks [materials] in exchange for being selected as oil purchasers. The oil-for-food program allowed the Iraqi government of Saddam Hussein [JURIST news archive], under UN sanctions in the wake of the first Gulf War, to sell limited stocks of oil in return for foodstuffs and other humanitarian supplies.

The charges are the latest legal problems facing Total. Last week, the Paris Appellate Court [official website, in French] upheld a lower court's 2008 decision finding Total and several other defendants criminally liable for an oil spill [JURIST report] that occurred of the coast of Brittany in 1999. The court also increased the fine [LeMonde report, in French] against the defendants from 192 million euros to 200 million euros. Over 20,000 tons of oil [Euronews report] seeped from an oil tanker called Erika, which Total chartered from an Italian company, decimating 400 kilometers of coastline and causing harm to wildlife. Total said Tuesday that it plans to appeal the judgment [Reuters report].

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Former Yukos oil executive urges case dismissal
Hillary Stemple on April 6, 2010 9:26 AM ET

[JURIST] Former Russian oil executive Mikhail Khodorkovsky [defense website; JURIST news archive] on Tuesday took the stand at his trial and called for the case against him to be dismissed for lack of evidence. Khodorkovsky and his business partner Platon Lebedev [defense website] are charged with embezzling [JURIST report] USD $25 billion worth of oil produced by their Yukos [JURIST news archive] oil company. Defense lawyers for Khodorkovsky contend that prosecutors have no evidence to support the charges and that they have failed to show how the men could have embezzled the profits but continued covering company expenses and expanding oil production. Khodorkovsky and Lebedev 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. Khodorkovsky and Lebedev have pleaded not guilty [JURIST report] to the current charges, and they face up to 20 additional years in prison if convicted.

Some critics of the Russian government have argued that the charges against Khodorkovsky and Lebedev are politically motivated [JURIST op-ed] due to Khodorkovsky's opposition to former Russian president and current Prime Minister Vladimir Putin [official website, in Russian; JURIST news archive]. Last month Khodorkovsky criticized [text, in Russian; JURIST report] Russia's justice system as an "assembly line" that inevitably finds the government's political enemies to be guilty. The statement echoed concerns Khodorkovsky had previously expressed about the fairness of Russian trials and the need for widespread reform of the Russian court system [JURIST reports].

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Sri Lanka ex-army chief court-martials postponed
Megan McKee on April 6, 2010 8:55 AM ET

[JURIST] Two separate court-martial proceedings against former Sri Lankan army chief Sarath Fonseka [BBC profile; JURIST news archive] were adjourned Tuesday. The trials, originally set to resume Tuesday, were postponed [BBC report] due to an ongoing case in the Sri Lankan Court of Appeals [official website], which is examining the legality of the court-martials. Fonseka faces two separate court-martials, charging him with participating in politics while in uniform and with improperly awarding army procurement contracts. Fonseka maintains that the allegations are a politically motivated effort to bar him from participating in the nation's upcoming elections. Fonseka is scheduled for a hearing before the Sri Lankan Supreme Court [official website] on April 26, where he will challenge his detention.

Fonseka was arrested [JURIST report] by the military in February after losing presidential elections held the previous month. In March, the former chief justice of the Supreme Court criticized [JURIST report] the government's treatment of the general. Sarath Nanda Silva, who retired from the Sri Lankan Supreme Court last year, accused the government of using the military justice system to prevent Fonseka from participating in the upcoming elections, and of violating Fonseka's civil rights. Silva also said that Fonseka's arrest was made in violation of the country's constitution [text].

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US DOT to impose record civil fine on Toyota for safety defect reporting delay
Ximena Marinero on April 6, 2010 7:49 AM ET

[JURIST] The National Highway Traffic Safety Administration (NHTSA) [official website] will seek a record civil penalty of $16.375 million [press release] against Toyota Motor Corporation [corporate website] for a four-month delay in notifying the agency about a problem with "sticky" gas pedals in various car models, US Department of Transportation Secretary Ray LaHood [official profile] announced Monday. The fine, which would become the largest ever assessed against a car maker, was announced based on a preliminary review of extensive corporate documents attained through an investigation [press release] launched by the NHTSA in February. Toyota will have two weeks to appeal the fine, but, if further defect-related violations are discovered, the NHTSA may increase the fine. NHTSA statutes [text, PDF] require that a vehicle manufacturer notify the NHTSA within five days of discovering a safety defect and launch a recall. The NHTSA has evidence that Toyota knew of the defect in late September, but notification and a recall were not launched until January.

Toyota has been under federal scrutiny [NHTSA materials] since December, and has conducted three recalls. The automaker has recalled more than eight million vehicles and is facing hundreds of private lawsuits. In March, the NHTSA enlisted the help of the National Academy of Sciences (NAS) and NASA [official websites] to conduct a 15-month investigation into the sources of recent safety defects. The agency has faced a hearing [transcript, PDF] before the House of Representatives Committee on Energy and Commerce [official website] and strong criticism [FOXNews video] regarding the effectiveness of its recent investigations into car safety defects. Previously, the largest fine assessed by the NHTSA was of $1 million [CNN report] against General Motors for failing to conduct a timely recall in 2004. At the time, the NHTSA was also criticized [CCR report] for appearing to be lenient on the American vehicle manufacturer.

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Oklahoma governor signs 3 anti-abortion bills into law
David Manes on April 6, 2010 7:00 AM ET

[JURIST] Oklahoma Governor Brad Henry [official website] signed three anti-abortion bills into law Monday. The first bill [SB 1890 text, RTF] prohibits abortions performed because of the gender of the fetus. The second bill [SB 1891 text, RTF] creates the Freedom of Conscience Act and protects medical employees who refuse to participate in procedures such as abortion based on religious beliefs. The third bill [SB 1902 text, RTF] regulates the use of RU-486, or mifepristone, a chemical used in abortion procedures. State Senator Todd Lamb (R), a sponsor of one of the bills, explained the purpose [press release] of the new measures:

These bills were each approved previously by the Legislature, but were prevented from taking effect due to a court ruling that they violated Oklahoma's Constitution regarding single-subjects for legislation. ... We believed then and believe now these provisions reflect the values of our state, and have successfully reaffirmed them in the Senate as individual measures.

The bills contain emergency clauses, causing them to take effect immediately [NewsOK report].

The measures signed by the governor Monday were included in previous bills that were struck down by Oklahoma courts. In March, the Oklahoma Supreme Court struck down [JURIST report] a broad abortion law that included the RU-486 restrictions. In February, a state court struck down another multi-part law [JURIST report] that included the prohibition on abortion based on the gender of a fetus. The Oklahoma Constitution [text] requires each piece of legislation to address only one subject. The Center for Reproductive Rights [advocacy website], which initially filed lawsuits against the bills, has indicated that it will challenge the constitutionality of the separated bills. Staff Attorney Stephanie Toti criticized the laws [JURIST comment], arguing that "they violate a myriad of constitutional principles, from freedom of speech to due process to equal protection of the law."

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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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