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Legal news from Wednesday, August 17, 2011




India parliament begins impeachment proceedings against high court judge
Julia Zebley on August 17, 2011 1:10 PM ET

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[JURIST] Impeachment hearings began [schedule, PDF] Wednesday in the Council of States [official website], India's upper house of parliament, against Justice Soumitra Sen [official profile], a justice of the Calcutta High Court [official website]. Sen is charged with misappropriation of funds and misrepresentation of facts. The motions for impeachment were submitted after an official inquiry ended with Supreme Court judge B Sudershan Reddy finding Sen guilty of the charges. Chief Justice of India, KG Balakrishnan also recommended in a letter [text] to Prime Minister Manmohan Singh [official website] that Sen be removed. Sen blamed the impeachment on Balakrishnan [The Hindu report] in his two-hour defense before the Council. Sen argued that the allegations are a conspiracy to have him removed to increase the image of the judiciary. Sen, in his capacity as justice, was assigned to sell an inventory of rejected goods from two civil suits, with the proceeds going back toward the payment of the judgment in one case, and disbursed to workers as back payments in another. Sen was to keep five percent for himself and had absolute control over all bank accounts connected to the cases. Parties to the cases requested information from Sen after not receiving their funds, which he ignored. Eventually, Sen withdrew all the money from the accounts and closed them, without explanation to the courts. Sen, in his defense, stated he had released funds to the workers, but did not account for the other case's missing money. If two-thirds of the Council of States find him guilty, Sen's case will be sent to the House of the People [official website], India's lower house, for identical proceedings. It is uncertain when Council members will vote.

If impeached, Sen will be the first sitting high judge to be removed from office in Indian history, and it is only the second impeachment proceeding ever attempted. President Smt. Pratibha Devisingh Patil [official website] announced in February that the government will work to eradicate corruption [JURIST report]. The government recently created a group of ministers charged with streamlining the judicial system [Indian Express report], particularly working to expedite corruption cases brought against civil servants suspected of corruption and to amend current laws to facilitate bringing claims against public servants. Singh called for the establishment of special courts [JURIST report] to deal only with corruption charges, telling a convention of high-ranking justices and government ministers that, "apart from pendency and delayed justice, corruption is another challenge we face both in government and the judiciary." Singh said addressing these problems would increases both domestic and foreign confidence in the court system. India's judiciary was analyzed in the FORUM post India and Pakistan: A Tale of Judicial Appointments [JURIST op-ed] by guest columnist Shubhankar Dam [official profile] of the Singapore Management University School of Law [official website].




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Lebanon tribunal unseals indictment in Hariri case
Jaclyn Belczyk on August 17, 2011 1:06 PM ET

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[JURIST] The UN Special Tribunal for Lebanon (STL) [official website] on Wednesday unsealed [press release] the indictment [text] against four individuals accused of assassinating former Lebanese prime minister Rafik Hariri [BBC profile; JURIST news archive]. The pre-trial judge issued a decision confirming the indictment, as well as an order lifting confidentiality [texts, PDF]. A sealed indictment was handed down in January, and arrest warrants were issued [JURIST reports] in June for Mustafa Badreddine, Salim al-Ayyash, Hasan Aineysseh and Asad Sabra [STL materials], who are alleged members of Hezbollah [CFR backgrounder]. STL prosecutor Daniel Bellemare welcomed the order [press release] to unseal the indictment:
This Order will finally inform the public and the victims about the facts alleged in the indictment regarding the commission of the crime that led to charging the four accused. This unsealing of the indictment answers many questions about the 14 February 2005 attack. The full story will however only unfold in the courtroom, where an open, public, fair and transparent trial will render a final verdict.
Lebanese authorities reported to the tribunal last week that they have not detained the suspects [JURIST report]. A trial in absentia is likely [Guardian report] if the suspects are not apprehended.

On Thursday, the STL president made a public plea for the four men to turn themselves in [JURIST report]. Judge Antonio Cassese guaranteed a fair trial and adequate representation and pressed Lebanese citizens to allow the STL to hold the assassins accountable. In February, the appeals chamber of the STL issued a unanimous ruling [summary, PDF] on several procedural issues, including the definition of terrorism [JURIST report], in judicial proceedings. The STL began debate on the issue [JURIST report] to determine which laws to apply in the case against persons accused of involvement in the February 2005 truck bomb that killed Hariri and 22 other people. Using the Article 314 of the Lebanese Criminal Code [text, PDF], the court held that a conviction on the charge of terrorism requires proof of an act intended to spread terror and use of a means "liable to create a public danger," that the only requirement is that "the means used to carry out the terrorist attack be liable to create a common danger" and that the trial judges should be given latitude in determining whether the requirement was met after having considered the facts presented in the case. The STL was established in 2005 at the request of the Lebanese government to try those alleged to be connected to the bombing in which Hariri was killed by explosions detonated near his motorcade in Beirut.




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ICC postpones hearing for DRC war crimes suspect
Jaclyn Belczyk on August 17, 2011 12:19 PM ET

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[JURIST] Judges for the International Criminal Court (ICC) [official website] have postponed [decision, PDF; press release] the opening of the confirmation of charges hearing against accused war criminal Callixte Mbarushimana [case materials], originally set for Wednesday, until September 16. Mbarushimana, former leader of the Democratic Forces for the Liberation of Rwanda (FDLR) [GlobalSecurity backgrounder], is accused of committing war crimes in the Democratic Republic of the Congo (DRC) [BBC backgrounder] in 2009. In postponing the hearing, the judges wrote, "that disclosure related issues raised just prior to the confirmation have rendered it impossible to fairly conduct the confirmation hearing on the scheduled date." No further reasons were given. Mbarushimana's lawyer, Nick Kaufman, expressed disappointment [AP report] with the decision.

Mbarushimana made his initial appearance [JURIST report] before the ICC in January and denied the charges against him. The court provided official notice of the charges against Mbarushimana, which include five counts of crimes against humanity and six counts of war crimes including murder, rape, torture, and attacks against the civilian population, and also informed him of his rights under the Rome Statute. In addition to facing allegations relating to violence in the DRC, Mbarushimana has also been linked to the 1994 Rwandan genocide [JURIST news archive]. In December, a French judge charged Mbarushimana [JURIST report] with war crimes and crimes against humanity for his role in the genocide. In 2008, Mbarushimana was arrested by German border police [JURIST report] as he attempted to travel to Russia on charges that he killed 32 people during the Rwandan genocide. In 2005, the UN asked France to bring genocide charges [JURIST report] against Mbarushimana, who was then in the country under refugee status. Carla Del Ponte, the former chief prosecutor for the International Criminal Tribunal for Rwanda (ICTR) [official website], refused to charge him and said the ICTR did not file an indictment against Mbarushimana because it lacked sufficient evidence against him.




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Ukraine ex-president testifies against former ally Tymoshenko
Julia Zebley on August 17, 2011 11:48 AM ET

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[JURIST] Former Ukrainian president Viktor Yushchenko [BBC backgrounder; JURIST news archive] testified against his former prime minister Yulia Tymoshenko [personal website; JURIST news archive] on Wednesday in her ongoing trial for charges of corruption. The prosecution alleges [JURIST report] that Tymoshenko orchestrated a deal where Ukraine's national gas company would pay Russia excessively high prices for gas. Although Yushchenko and Tymoshenko were allies in Ukraine's Orange Revolution, Yushchenko testified that these charges are true, and that Tymoshenko made a number of unnecessary political moves against his wishes to negotiate higher prices for Russia. Yushchenko also called on the prosecution [RIA Novosti] to question Russian Prime Minister Vladimir Putin [official website, in Russian; JURIST news archive] and the CEO of Russian energy company Gazprom [corporate website]. Tymoshenko refused to cross-examine [press release] Yushchenko so the Orange Revolution would not be tarnished. However, afterward, her counsel stated that Yushchenko had lied under oath [press release], specifically alleging that his testimony directly contradicted another prosecution witness' testimony.

Last week, the Kiev Appeals Court refused Tymoshenko's appeal of her detention for contempt charges [JURIST reports]. Earlier this month, Ukrainian Judge Rodion Kireyev rejected a request [JURIST report] from Tymoshenko to release her from prison. Kireyev again refused to recuse himself the week before, and Tymoshenko announced that she was allowed to call only two of her proposed witnesses [press releases]. In July, the Security Service of Ukraine (SBU) [official website, in Ukrainian] announced that they are launching a criminal investigation [JURIST report] into United Energy Systems of Ukraine (UESU), an energy company at one time headed by Tymoshenko. In June, Tymoshenko filed a complaint [JURIST report] with the European Court of Human Rights alleging violations of the European Convention of Human Rights [text, PDF]. The complaint argued that the charges against Tymoshenko are politically engineered by current President Viktor Yanukovych [official website, in Ukrainian]. ECHR President Jean Paul Costa refused to comment on the complaint [Korrespondent report, in Russian], but said the matter was before the court. The current combined case against her is not the first time she has been prosecuted. Last May, prosecutors reopened a separate criminal investigation [JURIST report] into allegations that Tymoshenko attempted to bribe Supreme Court judges. Tymoshenko's government was dissolved in March 2010 after she narrowly lost the presidential election to Yanukovych. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election.




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ACLU challenges Kansas abortion insurance law
Jaclyn Belczyk on August 17, 2011 11:05 AM ET

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[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [complaint, PDF; press release] Tuesday challenging a Kansas law [HB 2075 materials] that prohibits insurance companies from including coverage for abortion [JURIST news archive] in their comprehensive plans. The law prohibits comprehensive insurance plans from covering any abortion other than to save a woman's life but allows companies to offer a separate rider to cover abortions for an additional cost. The law will also ban coverage for abortion except in very limited instances in policies sold after 2014 under the new federal health care law. According to the ACLU complaint, the legislation violates the constitution:
The Act's only purpose is to make it more difficult for women to obtain and pay for abortion care. Indeed, it is akin to imposing an additional tax on the procedure. Moreover, because the Act serves no legitimate state interest, it fails even rational basis review. And, by prohibiting women from purchasing insurance that covers all of their health care needs while placing no similar restriction on men, it impermissibly discriminates based on sex.
Kansas is one of several states [Kansas City Star report] to enact similar legislation over the past two years. The measure took effect July 1.

Kansas has also recently imposed several other abortion restrictions. Last week, the state filed an appeal seeking to overturn a federal judge's ruling [JURIST reports] that blocks a law [HB 2014 materials] preventing Planned Parenthood of Kansas and Mid-Missouri (PPKM) [advocacy website] from receiving federal funding. Last month, a judge for the US District Court for the District of Kansas [official website] issued a preliminary injunction [JURIST report] to block a regulation [SB 36 materials] requiring clinics within the state to obtain a license to perform abortions. In April, Kansas Governor Sam Brownback (R) [official website] signed two pieces of legislation [JURIST report] restricting abortions in the state. The Abortion Reporting Accuracy and Parental Rights Act [HB 2035, PDF] requires unemancipated minors to obtain notarized parental signatures before an abortion may be performed, and the "fetal pain bill" [HB 2218, PDF] restricts abortions beyond 22 weeks of pregnancy based on the belief that a fetus can feel pain at that stage of gestation.




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ICTY may hold two trials for Mladic
Julia Zebley on August 17, 2011 10:09 AM ET

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[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] announced on Wednesday that it is considering conducting two trials [daily press briefing] for former Serbian general and alleged war criminal Ratko Mladic [ICTY backgrounder, PDF; JURIST news archive]: one for his conduct during the Srebrenica massacre [JURIST news archive], where approximately 8,000 people were killed, and one for all of his other charges during the Bosnian civil war [JURIST news archive]. Several reasons were given for the motion, including the late capture of Mladic as well as efficiency in convicting him. Reports stated that Mladic's health was also an issue, and the tribunal hoped to successfully prosecute him for the Srebrenica massacre before he dies. The ICTY also announced on Wednesday that Radovan Kardzic [JURIST news archive] would begin the portion of his trial for the Srebrenica massacre in January and that an initial appearance for Goran Hadzic has not been scheduled.

Serbian authorities captured Mladic [JURIST report] in May, ending a 16-year manhunt for the former general colonel and commander of the army of the Serbian Republic of Bosnia and Herzegovina. Mladic made his first appearance [JURIST report] at the ICTY in June, contesting the charges while simultaneously asking for more time to review them, which he was granted. At his second appearance [JURIST report] he refused to enter a plea. Before that, he had lost his final appeal in Serbia to avoid extradition, and was transported to The Hague [JURIST reports]. Mladic faces charges of genocide and crimes against humanity, including murder, political persecution, forcible transfer and deportations, cruel treatment and the taking of peacekeepers as hostages. He is most infamous for allegedly ordering the slaughter of 8,000 Muslim men and boys in the massacre of Srebrenica during the Bosnian civil war.




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Tobacco companies challenge cigarette labeling regulations
Jaclyn Belczyk on August 17, 2011 9:23 AM ET

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[JURIST] A group of four tobacco companies sued [complaint, PDF] the US government Tuesday claiming that new cigarette labeling regulations [FDA materials] violate their First Amendment [text] rights. The suit, filed against the Food and Drug Administration (FDA) [official website] in the US District Court for the District of Columbia [official website], seeks an injunction against the new regulations, which the companies claim unconstitutionally force them to disseminate the government's anti-smoking message. Floyd Abrams, an attorney for Lorillard [corporate website], said [press release]:
The regulations violate the First Amendment. ... The notion that the government can require those who manufacture a lawful product to emblazon half of its package with pictures and words admittedly drafted to persuade the public not to purchase that product cannot withstand constitutional scrutiny. The government can engage in as much anti-smoking advocacy as it chooses in whatever language and with whatever pictures it chooses; it cannot force those who lawfully sell tobacco to the public to carry that message, those words, and those pictures.
The other plaintiffs are RJ Reynolds, Commonwealth Brands and Liggett Group [corporate websites]. The new labeling rules are set to take effect in September 2012.

In February, Lorillard and RJ Reynolds filed suit [JURIST report] challenging an FDA advisory opinion on the use of menthol in cigarettes. In 2009, several tobacco companies filed a federal lawsuit [JURIST report] challenging the Family Smoking Prevention and Tobacco Control Act [text, PDF], which attempts to safeguard the public by granting the FDA certain authority to regulate tobacco products, among other provisions. A federal judge upheld the majority of the restrictions, and an appeal [JURIST reports] is underway.




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HTC sues Apple for three new counts of patent infringement
Julia Zebley on August 17, 2011 9:18 AM ET

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[JURIST] HTC [corporate website; Bloomberg backgrounder] filed three new patent complaints [USITC notice of receipt, PDF] against Apple [corporate website; Bloomberg backgrounder] on Tuesday through the US International Trade Commission (USITC) [official website], the latest in a series of suits filed back and forth between the two companies. Patents 7,765,414; 7,672,219 and 7,417,944 [texts] are at issue, all dealing with various functions of wireless communications systems. Spokespersons for both companies suggested the other come up with original ideas [Bloomberg report] rather than stealing. HTC also expressed a willingness to settle. The investigation is expected to last 15 to 18 months and could delay the rival companies' pending civil suits. The last patent infringement battle ended in defeat for HTC [JURIST report]. No appeal has been filed yet in that case.

Apple has been battling a number of lawsuits recently. Last week, a class action lawsuit [JURIST report] filed in the US District Court for the Northern District of California [official website] alleged that Apple and five major publishers colluded to illegally fix electronic book (e-book) prices. Apple filed a complaint against Samsung [JURIST report] last 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. The complaint came just a week after Samsung filed a similar complaint [JURIST report] seeking to prevent Apple from importing iPads and iPhones. Samsung claimed that Apple violated five patents also related to smartphones and tablets. In addition, Samsung filed a patent infringement suit [Bloomberg report] against Apple in the High Court in London in June. Finnish telecommunications company Nokia [corporate website] announced in June that it had entered into an agreement [press release; JURIST report] with Apple, 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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