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Legal news from Wednesday, October 5, 2011

Ukraine rejects criminal code amendments, Tymoshenko still faces prison
Dan Taglioli on October 5, 2011 1:35 PM ET

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[JURIST] The Ukrainian parliament [official website] on Wednesday rejected four amendments to the country's Criminal Code [materials]. Parliamentary deputies refused [RIA Novosti report] to include in the agenda for discussion proposed amendments to the Code, which were introduced by the opposition party led by former prime minister Yulia Tymoshenko [personal website; JURIST news archive], who is currently on trial and faces seven years in prison if found guilty of exceeding her authority in January 2009 by signing a contract for Russian gas supplies to Ukraine without approval from her government. The bills containing the proposed amendments sought to decriminalize Article 365 of the Criminal Code, which stipulates jail time for abuse of office:
Excess of authority or official powers, that is a willful commission of acts, by an official, which patently exceed the rights and powers vested in him/her, where it caused any substantial damage to the legally protected rights and interest of individual citizens, or state and public interests, or interests of legal entities ... if they caused any grave consequences, - shall be punishable by imprisonment for a term of seven to ten years with the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years.
Ukrainian President Viktor Yanukovych [official website; JURIST news archive] has faced strong Western criticism over the trial, which Tymoshenko and her supporters have called political motivated. Tymoshenko has said she expects to be found guilty.

Tymoshenko's trial resumed at the end of September after a two-week recess [JURIST reports]. In August Yushchenko testified against [JURIST report] Tymoshenko, his former prime minister. That same month, the Kiev Appeals Court refused Tymoshenko's appeal of her detention for contempt charges [JURIST reports]. Also in August, Kireyev rejected a request [JURIST report] from Tymoshenko to release her from prison. 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 Yanukovych. 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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EU prosecutor to investigate alleged organ trafficking in Albania
Andrea Bottorff on October 5, 2011 1:12 PM ET

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[JURIST] Head of the European Union Rule of Law Mission to Kosovo (EULEX) [official website], Xavier de Marnhac, announced on Wednesday that an EU prosecutor will visit Albania to investigate allegations of an organ trafficking scheme that took place in the country during the 1998-1999 Kosovo War [JURIST news archive]. The allegations stem from a report [text] authored by Council of Europe (COE) [official website] member Dick Marty [BBC profile] that implicates Kosovo Prime Minister Hashim Thaci [official profile] as the "boss" of an illegal criminal enterprise [JURIST report] that trafficked human organs and drugs during the war. According to the report, criminals harvested the organs of civilian detainees killed on Albanian territory near the Albania-Kosovo border and sold the organs on the black market for overseas transplants. De Marnhac's announcement came one day after a trial opened [NYT report] in Kosovo for seven Kosovars, mostly doctors, accused of organ trafficking and organized crime. The defendants appeared before a three-judge panel led by EULEX. Also on Wednesday, de Marnhac urged supporters to remain calm after an EULEX employee survived an alleged car bombing [AP report] that occurred outside an EU building in Kosovo.

EULEX announced in August that US prosecutor John Clint Williamson would lead an investigation [JURIST report] into allegations that Thaci was the leader of the KLA Drenica Group, a criminal network that controlled the heroin trade and the black market trafficking of kidneys of executed Serbian and Albanian war prisoners during the Kosovo War. Thaci strongly denies the allegations and has pledged to cooperate with the investigation. Claims of Kosovo's involvement in human organ trafficking originated in 2008 when former prosecutor for the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] Carla Del Ponte [JURIST news archive] alleged in a book [JURIST report] about her time at the tribunal that roughly 300 Serbian and other non-Albanian prisoners were victims of organ trafficking during the war. That year, Serbian prosecutors condemned Albania's refusal to initiate [JURIST report] an investigation into allegations of organ trafficking in Kosovo. Albanian Prosecutor General Ina Rama refused to cooperate with Serbian war crimes prosecutor Vladimir Vukcevic and said that her country would only pursue the allegations if the ICTY decided to reopen its investigation.

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Malaysia releases 125 prisoners in plan to repeal strict security laws
Dan Taglioli on October 5, 2011 12:59 PM ET

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[JURIST] Malaysia's government on Wednesday released 125 prisoners who were being held under a decades-old security law that has been widely criticized by human rights and opposition groups. In an address to Parliament [official website] earlier this week, Prime Minister Najib Razak [official profile] announced the release [AP report] of all individuals being held under the Restricted Residence Act of 1933 [text, PDF], the British colonial-era act that enables authorities to banish suspects to remote districts and force them to report regularly to police. The law has been used to detain criminal suspects who, like many of the individuals just released, have never been charged in court. The identities of the freed prisoners have been withheld, but those held under the act in the past two years include suspected robbery gang members and a religious teacher accused of spreading militant ideologies. As the prisoners were released, Najib stated the government would also revoke more than 200 unserved warrants [AFP report] issued under the law. In his address to Parliament, Najib called the Restricted Residence Act outdated, partly due to technological advances that allow exiled criminals to communicate with confederates still in the country. Parliament is expected to approve a bill this month to revoke the act as a larger effort to repeal several tough security laws viewed by many as outdated and oppressive.

Malaysia's strict security laws have been widely criticized for years. The UN Working Group on Arbitrary Detention [official website] recommended [JURIST report] last year that Malaysia repeal or amend its internal security laws, reflecting allegations that the laws violate human rights. Najib's address to Parliament on Monday officially initiated the repeal [JURIST report] of several of these laws, expected to culminate in March with the revocation of the Internal Security Act of 1960 (ISA) [text, PDF], which has allowed the government to detain opposition critics, alleged militants and labor activists for a period of up to two years without a trial. Najib had originally announced the repeals [JURIST report], as well as the review of other laws dealing with freedom of the press, in September, but they were tabled over the past month. The repeal of the ISA and similar laws are generally considered a political move by the prime minister, designed to boost his uncertain re-election hopes three months after police used tear gas and water cannon to crush a street rally calling for electoral reforms.

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Bahrain military court sentences 19 more protesters
Andrea Bottorff on October 5, 2011 12:16 PM ET

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[JURIST] A Bahrain [JURIST news archive] civilian-military court on Wednesday sentenced 19 more protesters to prison terms of up to five years, bringing the total number of protesters sentenced this week to 85. The court sentenced 13 protesters to five years in prison and six people to one year for their participation in protests seeking greater rights for the Shiite majority [AP report]. One of the sentenced protesters is 16-year-old Iraqi soccer player, Zulfiqar Naji, whose arrest has sparked protests in Iraq [Al Arabiya report] calling for his release. The court on Tuesday sentenced 26 protesters, including prominent members of the Shiite political group, to prison terms ranging from 5-15 years and on Monday sentenced 40 protesters [JURIST reports], including university students, to 15-25 years for crimes ranging from rioting to attempted murder. The Bahrain courts have been criticized for their severity [BBC report], especially in light of the five 15-year prison terms issued to doctors and nurses convicted of rendering aid to protesters. Bahraini doctors and nurses on Saturday urged the UN to investigate claims of abuse and due process violations [JURIST report] in relation to their recent convictions. Last week, the National Safety Court of Appeal sentenced [JURIST report] one anti-government protester to death for killing a police officer and gave lengthy prison sentences to medical personnel, including doctors, for providing treatment to injured protesters during the country's uprising.

Bahraini King Hamad bin Isa Al Khalifa [official profile] announced in August that he will dismiss charges against some of the protesters [JURIST report] detained for their participation in pro-democracy demonstrations in the country. In June, Khalifa announced that an independent commission will investigate human rights violations [JURIST report] related to the country's pro-democracy protests. Earlier that month, the OHCHR announced that Bahrain agreed to permit a UN commission [JURIST report] to investigate human rights violations related to protests. The National Safety Courts were instituted in mid-March under Khalifa's three-month state of emergency [JURIST report] and have been internationally criticized, most recently [JURIST report] by Human Rights Watch (HRW). The court sentenced nine citizens [JURIST report] to 20 years in prison for kidnapping a police officer in May. In April, the court handed the death sentence to four protesters, a rarity in Bahrain, and upheld the sentences [JURIST reports] for two of the men who were accused of murdering police officers. All of the charges levied in the National Safety Court have been disputed by Bahraini citizens and international rights organizations.

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Germany reopens investigations into hundreds of former Nazi death camp guards
Ashley Hileman on October 5, 2011 11:08 AM ET

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[JURIST] German prosecutors intend to reopen hundreds of investigations involving former Nazi death camp guards, according to Wednesday reports. This initiative results from the conviction [AP report] of John Demjanjuk [NNDB profile; JURIST news archive], a retired US autoworker who served as a guard at a camp in Poland in 1943 and was deported to Germany in 2009 in order to stand trial on allegations that he helped to murder thousands during the Holocaust. Demjanjuk was convicted [JURIST report] in May and sentenced to five years in prison, but was released due to his advanced age and that the verdict is not final. Because the remaining suspects are also advanced in age, the German prosecutors will not wait until Demjanjuk's appeal process is finished, but will begin investigations within the next two months. The significance Demjanjuk's conviction and its relation to the renewed investigations lies in the fact that he was convicted despite the absence of direct evidence that he participated in the actual killings. The court found that the establishment of his position as a guard at a camp, which was created for the purpose of extermination, was sufficient. These investigations and subsequent trials are possible in Germany as the country does not impose a statute of limitations for murder and related charges.

Germany is not alone in its pursuit to remedy crimes committed during the Holocaust. In July, the International Court of Justice (ICJ) [official website] at The Hague began hearing arguments [JURIST report] from Germany and Italy, which is seeking damages from Germany for crimes committed by Nazis during World War II. In November 2008, Germany filed a lawsuit against Italy in the ICJ in a bid to block new claims [JURIST report] for personal damages resulting from Nazi actions in World War II. Germany is arguing that an October 2008 decision [JURIST report] by Italy's Court of Cassation [official website, in Italian] which ordered Germany to pay 1 million euros (USD $1.3 million) in damages to relatives of civilians killed in the town of Civitella during the war, violated the principle of state immunity. The lawyers representing Germany argued before the court that international law would be "atomized" and "politicized" [AP report] if the ICJ were to accept the Italian court's decision. Germany further argues that it has already compensated Italy for Nazi-related damages pursuant to a 1961 treaty. The ICJ is not expected to hand down its decision for several months.

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Federal appeals court upholds DC gun laws
Ashley Hileman on October 5, 2011 9:49 AM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Tuesday upheld the constitutionality [opinion, PDF] of gun laws containing certain registration requirements and laws prohibiting the ownership of assault weapons and large-capacity magazines. The laws at issue represented a part of the Firearms Registration Amendment Act of 2008 (FRA) [text], which the district adopted following the Supreme Court's ruling in District of Columbia v. Heller [opinion, PDF; JURIST report] that the prior laws restricting possession of firearms in one's home violated the Second Amendment rights [text; JURIST news archive] of individuals to keep and bear arms. The plaintiffs in the case challenged both the authority of the District to pass the FRA as well as its constitutionality. The court, determining that the district had authority to promulgate the laws, next considered whether each of the challenged provisions was consistent with the Second Amendment. The provisions at issue included those requiring basic and additional registration requirements as well as those prohibiting the ownership of assault weapons and magazines holding more than ten rounds of ammunition. In its constitutional analysis, the court distinguished between the longstanding general registration requirements, which it held were presumptively lawful and "novel" registration requirements, which mandated that an applicant appear in person and meet a vision requirement, among other things. The latter requirements did not qualify for the presumption of lawfulness and were remanded to the district court for further analysis. In upholding the constitutionality of the prohibition laws, the court stated:
Unlike the law held unconstitutional in Heller, the laws at issue here do not prohibit the possession of "the quintessential self-defense weapon," to wit, the handgun. Nor does the ban on certain semi-automatic rifles prevent a person from keeping a suitable and commonly used weapon for protection in the home or for hunting, whether a handgun or a non-automatic long gun.
In its holding, the court emphasized that the rights secured by the Second Amendment are not unlimited and the prohibition law is a reasonable limitation that does not violate the constitutional rights of residents in the District of Columbia.

Gun control laws remain a contentious issue across the US. Last month, a judge for the US District Court for the Southern District of Florida [official website] temporarily enjoined [JURIST report] a Florida law restricting what physicians can ask or say about firearms to their patients as violative of the doctors' First Amendment rights. Under the Firearm Owners' Privacy Act (FOPA) [text], violating doctors risk losing their medical license and up to a $10,000 fine for "asking questions concerning the ownership of a firearm" or "unnecessarily harassing a patient about firearm ownership." Judge Marcia Cooke rejected Florida's argument that the law was about protecting Second Amendment rights. The temporary injunction seems likely to become permanent [Reuters report]. In March, US President Barack Obama [official website] called for greater enforcement of gun laws [JURIST report] in the wake of the January shootings in Arizona [JURIST report]. In an opinion piece published by the Arizona Daily Star, Obama called for the implementation of "sound and effective steps" aimed at minimizing gun violence.

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Federal judge sentences two more Somali pirates to life in prison
Julia Zebley on October 5, 2011 8:55 AM ET

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[JURIST] A judge for the US District Court for the Eastern District of Virginia [official website] on Tuesday sentenced a pair of Somali men to life in prison [press release] for their involvement in the hijacking of a yacht that resulted in the deaths of four American citizens. This followed another pair of pirates' sentencing the day before, with a first sentencing in August [JURIST reports]. Mohamud Salad Ali, one of the leaders of the expedition, received two life sentences, while Ahmed Sala Ali Burale received one. Both expressed sorrow [Virginian-Pilot report] and stated they had tried to prevent the hostages from being harmed. Five men await sentencing, three of whom have pleaded not guilty [JURIST report].

Maritime piracy [JURIST news archive] off the coast of African continues to be a global concern. In August, a Dutch court sentenced [JURIST report] five Somali men to prison terms ranging from four to seven years for acts of maritime piracy. In May, courts in both Spain and South Korea [JURIST reports] sentenced Somali pirates to life imprisonment. In April, a Somali pirate was sentenced [JURIST report] by the US District Court for the District of Columbia [official website] to 25 years in prison for attacking a Danish ship off the coast of Somalia in 2008, for which he and other pirates received a $1.7 million ransom.

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Supreme Court hears arguments on death penalty, right to counsel, Miranda
Julia Zebley on October 5, 2011 7:41 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in three cases on Tuesday. In Maples v. Thomas [transcript, PDF; JURIST report], the court considered a death penalty appeal where Cory Maples missed his ability to appeal his sentence due to a clerk's error. An Alabama trial court had dismissed Maples' petition for post-conviction relief and sent notice of this ruling to his out-of-state attorneys, but the notice was returned to the court unopened because the attorneys had changed firms. The court's clerk did not attempt to notify his attorneys again. The clerk did, however, notify Maples' in-state attorney who neither acted nor notified the attorneys who were more directly involved in his case. The US Court of Appeals for the Eleventh Circuit held the state of Alabama may execute Cory Maples without federal habeas review of his constitutional claims. Maples' attorney argued that he effectively had no local counsel, thus the lack of proper notification to his true counsel, who had never withdrawn, was a clear error. The state of Alabama argued that the notice was adequate and claimed that the local attorney had enough of a role to adequately appeal for Maples.

In Martinez v. Ryan [transcript, PDF; JURIST report], the court heard arguments on whether, when arguing prior ineffective counsel, an appellant has the right to new counsel provided by the state. Typically, the constitutional right to counsel ends after the first post-conviction appeal. But appellant Luis Martinez wanted to argue his trial attorney was ineffective after his appeal and asked that the state of Arizona provide him counsel for this. This proceeding, under Arizona law, mandates a separate trial court and is to be made between conviction and appeal. The US Court of Appeals for the Ninth Circuit held that since there is no right to appointment of counsel during a defendant's post-conviction relief petition, there is no right to effective assistance of counsel. Martinez's attorney argued that this narrow window deprives his client of constitutional right to counsel and that counsel should be extended to any "first-tier review issue," especially considering evidence of attorney negligence could present years after the trial. The state of Arizona brought up the costs and impracticality of the rule: "This Court has never—has never said that every claim that can only be raised for the first time entitles someone to—to counsel. And that exception, that would—that would swallow the rule."

Finally, in Howes v. Fields [transcript, PDF; JURIST report], the court heard arguments on how far to extend the Miranda privilege in jail. Randall Fields was questioned by investigators about a child sex-abuse case while he was in the county jail serving a 45-day sentence for disorderly conduct. A lower court found that Fields did not have to be given his Miranda rights because the investigators were questioning him about a separate crime. This decision was reversed by the US Court of Appeals for the Sixth Circuit, holding that Miranda is necessary anytime the suspect is isolated from the rest of the jail inmates in a situation where the suspect would be likely to incriminate himself. The state of Michigan argued that since Fields invoked his right to return to his cell, despite being confined in jail, a reasonable person in jail being taken to an interrogation room would have understood it was an interrogation and Miranda was unnecessary:

You know, it's so coercive to take an 8-year-old child to the principal's office with an officer to question him, that per se is always going to be some child version of the Miranda rule. Or if you had someone in the hospital and they were in such a position that they were physically unable to leave. But we don't do that. We don't have a hospital Miranda rule. There shouldn't be one in prison, either. We should just take all the circumstances into account.
Michigan's attorney also argued against a new per se rule that was created by the Sixth Circuit rather than applying the traditional "all the circumstances" test for Miranda. Fields' attorney contended that he felt no freedom to leave and that in a prison or jail situation, a reasonable person would not feel a freedom to leave without being read Miranda rights in that situation.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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