Law

Italy's highest court may be able to strip Prime Minister Silvio Berlusconi's Teflon coating.

In July 2008, Italian lawmakers "freed" Berlusconi with an immunity law that freezes criminal cases against the prime minister, president and heads of both chambers of parliament while they are in office. (See last week's edition of The List for more.) Now prosecutors are saying this law is unconstitutional, as it goes against the provision that all citizens are equal before the law.

The Constitutional Court could rule by the end of the week; however the Italian media says the decision could be delayed because the 15-judge court is unable to reach a consensus.

Berlusconi would most likely have three cases re-opened against him. The most devastating of these cases accuses Berlusconi of paying British lawyer David Mills $600,000 in 1997 to give false testimony in Berlusconi's corruption trials. Mills was sentenced to 4 1/2 years for taking the bribe in February, however he will likely never see jail because of Italy's appeals system.

Other cases that will likely be re-opened include a tax fraud and false accounting case and a case in which he allegedly tried to corrupt senators.

If his immunity gets taken away, Berlusconi's government will likely survive the fallout, however it will only add to growing dissatisfaction with him after a string of sex scandals.

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The city council of Nairobi passed a series of by-laws yesterday outlining new illegal activities for the streets of Kenya's capital. Newly outlawed activities include blowing one's nose in public without using a hankercheif and spitting into trash cans. Another of the laws criminalizes loud noise.

This particular ordinance may have the biggest impact on the economy of Nairobi, in which street hawkers, cab drivers and store owners rely on verbally cajoling customers into their services. One resident argued the city is just trying to make money, either from imposed fines or bribes, and directly ignoring the needs of its citizens:

"We get our daily bread here,We are not making noise. The council must know that we are self-employed."

The city maintains that the purpose of the news laws is to make the city more habitable and reduce general nuisance. 

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Yesterday, award-winning director Roman Polanski was arrested in Zurich for a long-outstanding U.S. warrant. In 1977, Polanski was arrested for the statutory rape of a 13-year-old girl. He pleaded guilty, and fled the county in 1978 to avoid going to jail. He eventually became a dual citizen of France (which does not extradite) and Poland.

Today, Polish Foreign Minister Radoslaw Sikorski and French Foreign Minister Bernard Kouchner called on U.S. Secretary of State Hillary Clinton to stop the extradition. Kouchner called the arrest "a bit sinister." In these countries, Polanski is widely regarded as an exceptional filmmaker and a victim of the overzealous American justice system. (HBO made a documentary about this dichotomy, Roman Polanski: Wanted and Desired.)

But Sikorski's defense of Polanski comes at an awkward time: Poland is in the process of implementing much-harsher punishments for people who commit sex crimes. Last week, all but three of the 460 members of Poland's lower chamber of parliament voted to punish certain sex offenders with chemical castration. People convicted of raping a person under 15 (the crime Polanski pled guilty to) or a close relative would be given drugs to diminish their libido, under the new law. On top of chemical castration, there are increased penalties for incest and pedophilia. Trying to justify pedophilia would also be criminalized. 

Regardless, it seems Polanski might end up serving his time in the United States, ending his 31 years on the lam. While abroad, Polanski has made a number of films -- including Tess, which was dedicated to his wife Sharon Tate (who was murdered by the Manson Family) and the Oscar-winning The Pianist, set during the Holocaust. After being forced into the Kraków Ghetto during World War II, Polanski escaped the concentration camps; his mother did not and was killed in Auschwitz. He also made arguably the creepiest movie of all time, The Ninth Gate, starring Johnny Depp as a used book salesman who tries to track down the devil.

Roman Polanksi, the famed director of Chinatown and The Pianist, who has not set foot in the United States for more than three decades, is now facing extradition proceedings in Switzerland -- at the request of the Los Angeles district attorney's office.

Upon touching down at the Zurich airport on Saturday, after departing his native France, Polanksi was detained by authorities. Unlike France, Switzerland has an extradition agreement with the United States that applies to cases like that of Polanski, who is wanted in connection with a 32-year-old sex case.

In 1977, Mr Polanski admitted to having sex with a 13-year-old in Los Angeles. The woman has since identified herself and publicly offered her personal forgiveness. But that has not changed the course of legal proceedings.

As Sandi Gibbons, a spokeswoman for the Los Angeles County district attorney’s office, told the New York Times:

"Any time word is received that Mr. Polanski is planning to be in a country that has an extradition treaty with the U.S., we go through diplomatic channels with the arrest warrant."

Polanski's case is perhaps not unique in the world of extradition law, but it is provocative. The notion of the Los Angeles DA's office for 32 years tracking the director's busy European travel schedule, waiting for an opportunity, whilst he chose to appear at various film festivals via video-conference rather than in person, is fascinating. But beyond the celebrity factor, it's hard to pin down exactly what seems so incongruous.

Is it simply that in a post-9/11 world we're now accustomed to thinking of "extradition" in connection with national security interests, and clear-and-present danger?

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A new Islamic law in Indonesia's devoutly Muslim Aceh province takes a strict interpretation of Sharia law including a provision to stone adulters to death. The "Islamic Crime Bill," passed by the regional parliament on September 15, 2009, authorized the following punishments for adultery and homosexuality:

“Any person who deliberately commits adultery is threatened with 100 cane lashes for the unmarried and stoning to death for those who are married.”

“Any person deliberately performing homosexuality or lesbianism is threatened with up to 100 cane lashes and a maximum fine of 1,000 grams of fine gold, or imprisonment of up to 100 months.”

Additionally, the law outlines the punishment for rape is a minimum of 100 cane lashes and a maximum of 300 cane lashes or imprisonment of at least 100 months and up to 200 cane lashes or a maximum imprisonment of 200 months for pedophiles.

The regional parliament passed this law in order to target "behavior considered morally unacceptable."

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German Judge Albert Bartz has taken issue with laws that ban drivers from talking on handsets while driving but do not address many other potentially more distracting activities, including sexual activity. 

"The police have no legal basis for taking action against a driver who is, for example, letting their left hand dangle out of the open car window while they use their right hand to work on a laptop that's sitting on the passenger's seat and steer the car with their thighs," Bartz said. "In my opinion, the current legislation is outdated." 

The judge considered the law while handling the case of a man who appealed his fine for talking while driving. Bartz insists however that he does not have personal motivation for his legal position. 

Bartz emphasized that he has never been caught using his mobile phone in the car and that he also avoids other risky activities while driving. As he told the mass circulation daily Bild: "Sex at the steering wheel is strictly off-limits for me."

Bartz forwarded the statute on to Germany's highest court, the Constitutional Court in Karlsruhe, for further review.  

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For decades, all that Japan knew of jury trials came from foreign legal dramas. Now, for the first time since 1943, Japan is watching a real jury decide the fate of a criminal, as six "lay judges" join three professional judges for four days of deliberations over the fatal stabbing of a 66 year-old South Korean woman by her 72 year-old neighbor. 

Since the end of trial by jury during World War II, Japan's trials have been carried out under professional judges, which led to accusations of too much secrecy. The 99 percent conviction rate that currently accompanies these trials has increased concern that many innocent people are being convicted, and the reintroduction of juries, which was passed five years ago, is designed to bring the public into the judicial process (though only for serious crimes such as murder). However, the public has been skeptical of the new system, especially the hassle involved in taking time off to serve. Furthermore, many Japanese do not enjoy the open forum of deliberations; a New York Times article from 2007 reported that even a mock trial "had left [participants] stressed and overwhelmed." Overall, polls show that almost 80% of the public does not want to serve, and there have been intermittent protests (shown above) since the law's passage. 

But while the hassle of serving and the confusion at a new system are at the top of the public's complains, the legal community is more concerned about something else: sentencing. Many critics in Japan have expressed unease at the power given to jurors to pass sentence on criminals, including the death penalty (though at least one professional judge must agree with the lay judges' recommended sentence). Since the accused has already pled guilty in this case, the jury will likely be focusing on the appropriate penalty -- as will the nation.

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In Britain, the battle over assisted suicide and right-to-die laws has been heating up over the past few weeks.

The country has no intention of making assisted suicide legal. But, in the past decade, hundreds of Britons have traveled to Switzerland, where clinics offer doctor-assisted suicides for the terminally ill. And thus far, the country has been reticent to prosecute and punish their family members for going with them or aiding them in the process, although assisting a suicide is a felony in Britain.

The gray area led to numerous calls -- from doctors, citizens, and members of Parliament -- for a clarification of the law. This month, a famous couple chose to end their lives in Switzerland, and a woman with multiple sclerosis appealed to Parliament as well.

And today, the House of Lords instructed the director of public prosecutions to do just that.

A few weeks ago, I wrote a post arguing for the clarification of the law on class grounds. (See a rebuttal to my point from Felix Salmon here. Though I disagree with Felix -- the terminally ill are probably not capable of getting loans worth thousands of dollars and the process is expensive.) Assisted suicide in a foreign country is an expensive thing for Britons -- today, one doctor said he gave a third of the cost, 1500 pounds, to a terminally ill man who could not afford the trip to Switzerland without it.

And, today, the general practitioner called on Britain to prosecute him for doing so. The Guardian reported:

A former GP said today he hoped to be prosecuted for helping a terminally ill man to have an assisted suicide. Dr Michael Irwin, 78, said he wanted to highlight the "hypocrisy" of a system where the wealthy could pay to travel to Switzerland's Dignitas clinic for euthanasia but the poor could not. He will be questioned by police today after writing a cheque...

I don't want to make a point about whether assisted suicide itself should be legal. But this Irwin's case does make me realize I was imagining families -- not sponsors -- when I thought of those who might benefit from a clarification of the laws.