cases of note
The Hague
District Court (Rechtbank's-Gravenhage,
The
Click here for the decision (in Dutch).
The Hague District Court (the "Court") handed
down its judgment in the case against Frans Van Anraat,
in which it found Van Anraat guilty of complicity in war
crimes committed in
Van Anraat, a Dutch businessman, supplied raw materials
to the government of
Stating that the attacks against the Kurdish population
of
The Court awarded fifteen Kurds from
The defense lawyers said that they would appeal the judgment.
U.S. Court of Appeals for the Ninth Circuit: Yahoo! Inc. v. La Ligue Contre le Racisme et L’Antisemitisme and L’Union des Etudiants Juifs de France (January 12, 2006)
The decision is available on Lexis.
An en banc panel of the 9th Circuit U.S. Court of Appeals
reversed with directions to dismiss a District Court decision
finding that a French Court’s orders were not enforceable
against a
Two French entities, La Ligue Contre le Racisme et L’Antisemitisme and L’Union des Etudiants Juifs de France (“LICRA” and “UEJF”), filed suit in the French Courts against Yahoo! and Yahoo! France for the sale of Nazi objects on Yahoo!’s websites, in violation of French law. The French Court issued an interim order requiring Yahoo! and Yahoo! France to remove these objects from the websites or alternatively to limit access of French citizens to the offensive material. The French order assessed penalties and damages for the display of the Nazi material on the websites. After the order was issued, Yahoo! removed some of the disputed content from its websites; however, Yahoo! claimed that it did so for its own reasons and not as a result of the French Court orders. Yahoo! subsequently filed suit in U.S. District Court seeking a declaratory judgment that the French judgments were unenforceable.
The en banc panel of the Appellate Court held that the district court had properly exercised personal jurisdiction over LICRA and UEJF because the two French entities had sufficient minimum contacts with California as a result of three actions on the part of LICRA, UEJF and the French government. These actions included: sending a cease and desist letter requesting the removal of the content to Yahoo!’s headquarters in California, serving process on Yahoo! in California and because the French Court’s interim orders directed Yahoo! to act in California to remove the content.
Despite the presence of personal jurisdiction, the Court held that Yahoo!’s case was not ripe because the French Court stated that Yahoo! complied with the spirit of the Court orders and thus no further efforts would be undertaken to enforce the decision. Further, the Appellate Court declined to evaluate whether or not the French decision chilled Yahoo!’s First Amendment freedom of speech rights, stating that to do so would have the effect of extraterritorially applying the U.S. Constitution.
The U.S. Court of Appeals for the Eighth Circuit (“the Court”) denied the petition for review of the applicant’s asylum claim.
The applicant, a national of Zimbabwe who fled his country in March 2002, sought asylum, withholding of removal and protection under the Convention against Torture (“CAT”) on the grounds that he was a homosexual, who, if returned to Zimbabwe, would suffer persecution by the Zimbabwean government on account of his sexual orientation.
The applicant cited incidents from his youth in Zimbabwe
to support his claim for past persecution, including being
expelled from a secondary school that prohibited all sexual
activity, and being detained in jail for two months for
having engaged in sexual activity at age 15 (in 1998).
The
The applicant contended that the immigration judge wrongly
concluded that, based mostly on his allegations of past
persecution in
The Court upheld the immigration judge’s decision, finding that a reasonable adjudicator could conclude from the facts in this case that the Zimbabwean government’s action was not taken because of the applicant’s sexual orientation, but rather due to allegations of sexual misconduct. This was so, according to the Court, even assuming that the sanction was extreme enough to constitute persecution and assuming that homosexual status constitutes a “particular social group” for purposes of U.S. Immigration law (8 CFR section 208).
Federal High
Court of
The decision was provided to the
ILM office by Open Society Justice Initiative’s office
in
The High Court of Nigeria (the “Court”) upheld the applicants’ right to maintain a claim before the Court.
The applicants are Nigerian nationals who suffered amputation
in
Charles Taylor was indicted by the Special
Court for Sierra Leone (the “SCSL”) on March
7, 2003 on 17 counts of Crimes against Humanity, violations
of Article 3 Common to the
Geneva Conventions and of Additional
Protocol II and of Other Serious Violations of International
Humanitarian Law. The indictment of the
SCSL alleges, inter alia,
that Charles Taylor “provided financial support, military
training, personnel, arms, ammunition and other support
and encouragement to the RUF” in order to destabilize
The applicants challenged the decision of granting asylum to Charles Taylor and asked the Court in Nigeria to review this decision, bringing a suit against Charles Taylor, the Federal commission for Refugees, the National Commission for Refugees, the President of the Federal Republic of Nigeria, and the Attorney-General of the Federal Republic of Nigeria.
The government raised preliminary objections arguing that the Court did not have jurisdiction due to the applicants’ lack of locus standi, because the question at issue was a political non-justiciable question, and because the action was barred by the statute of limitations. The applicants argued, inter alia, that they challenged an administrative act of granting refugee status and that this was not a political issue. As to the statute of limitations, the applicants submitted that “a well known exception to the limitation period is where it can be shown that a public officer has breached or abused his office.”
The Court held that the statute of limitations had not run, because the granting of asylum “constitutes an ongoing damage or injury to applicants and in such a situation their statutory right of action has not yet come to an end.” Dismissing the government’s locus standi argument, the Court noted that, according to the applicants’ affidavits, which alleged that the applicants were mutilated, “there is no other conclusion to reach… than the fact that these applicants are not pursuing any public right but rights that are personal to them.”
The Court also affirmed that the applicants have a reasonable cause of action. In conclusion the Court held that “[t]his matter is properly before the Court and it is a competent action. This Court therefore has jurisdiction to hear it.”
According to Justice Initiative’s website, the Nigerian Government has expressed its intention to appeal this decision.
Inter-American Commission on Human
Rights: Extension of Precautionary Measures (N. 259) regarding
Detainees in Guantanamo Bay,
Click here for the document.
The Inter-American Commission
on Human Rights (“the Commission”) requested that
the
“1. take the immediate measures necessary to have the legal status of the detainees at Guantanamo Bay effectively determined by a competent tribunal;
- take all measures necessary to thoroughly and impartially investigate, prosecute and punish all instances of torture and other mistreatment that may be perpetrated against the detainees at Guantanamo Bay, whether through methods of interrogation or otherwise, and to ensure respect for the prohibition against the use in any legal proceeding of statements obtained through torture, except against a person accused of torture as evidence that the statement was made;
- take the measures necessary to ensure that any detainees who may face a risk of torture or other cruel, inhuman or degrading treatment if transferred, removed or expelled from Guantanamo Bay are provided an adequate, individualized examination of their circumstances through a fair and transparent process before a competent, independent and impartial decision-maker. Where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or other mistreatment, the State should ensure that the detainee is not transferred or removed and that diplomatic assurances are not used to circumvent the State’s non-refoulement obligation.”
In its written and oral representations to the Commission,
the United States reiterated its previous position regarding
the admissibility of the Commission’s precautionary measures
request, namely that the Commission’s jurisdiction and
competence do not extend to the laws and customs of war
or to issuing requests for precautionary measures against
non-States Parties to the American Convention. It also
contended that there was a requirement of exhaustion of
domestic remedies. It further submitted, inter alia, that
as of September 27, 2005, 160 habeas proceedings involving
292 detainee petitions have been filed with
The
In the petitioners’ submissions to the Commission, they
alleged, inter alia,
that there are still approximately 225 detainees who have
been completely denied any right of access to counsel.
Moreover, they submitted that the
The petitioners further alleged that with respect to
the transfer of detainees, the countries to which they
have been transferred have deplorable human rights records,
and that although the
In regard to jurisdiction, the Commission concluded that it has the authority to adopt precautionary measures in respect of non-State parties to the American Convention and to consider and apply international humanitarian law. It also stated that the principle of exhaustion did not apply to the precautionary measures, for such measures are “intended to reinforce and complement, rather than replace, domestic jurisdiction.”
The Commission also observed, inter
alia, that, notwithstanding the Supreme Court decision
in Rasul
v. Bush, the information before it indicates “that
nearly half of the Guantanamo detainees have not been
given effective access to counsel or otherwise provided
with a fair opportunity to pursue a habeas corpus proceeding
in accordance with the Supreme Court’s ruling, despite
the fact that the purpose of habeas is intended to be
a timely remedy aimed at guaranteeing personal liberty
and humane treatment.” It concluded that the situation
at Guantanamo continues to be of an urgent character,
and asked that the
European Court of Human Rights (Grand
Chamber): Hirst v.
The judgment is available on the Court’s website.
The European Court of Human Rights (the “Court”) found that the restriction of voting rights of all convicted prisoners violated Article 3 of Protocol No. 1 of the European Convention on Human Rights (the “Convention”).
The applicant pleaded guilty to manslaughter on the ground of diminished responsibility in 1980 and was sentenced to a term of discretionary life in prison. The applicant’s tariff (that part of the sentence relating to retribution and deterrence) expired in 1994, but he continued to remain in detention due to considerations relating to risk and danger to the public.
The applicant was barred from voting by section 3 of the Representation of the People Act 1983, which states that “[a] convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election.” The law provided for exceptions for persons committed to prison for contempt of court or for default in paying fines.
The applicant initiated proceedings under section 4 of
the Human Rights Act 1998 in the
The Chamber of the Court held unanimously that there had been a violation of Article 3 of Protocol No. 1, because the voting restriction was disproportionate, as it excluded every convict of from voting, irrespective of the length of the sentence and the nature of the crime committed.
Before the Grand Chamber, the applicant contested the idea uttered in Parliament that stripping a convict of his voting rights was part of his punishment and that punishment could legitimately remove fundamental rights other than the deprivation of liberty and argued that this was inconsistent with the stated rehabilitative aim of prison.
The Court noted that although the wording of Article 3 of Protocol No. 1 to the Convention is drafted in a different manner than the provision of the International Covenant on Civil and Political Rights, it still guarantees the individual’s right to vote and to stand for election. The Court also stated that, although “the right to vote is not a privilege”, it is not absolute and the member states are granted a wide margin of appreciation. Underlining “that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty”, the Court specified that restrictions with the right to vote had to comply with the principle of proportionality.
The Court noted that the restriction “applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances,” and concluded that [s]uch a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be.”
Cases of Note is compiled with the assistance of the International Legal Materials and International Law in Brief editorial staff. ILIB is a free-of-charge electronic resource published by the American Society of International Law. To sign up for ILIB, click here.