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The African regional human rights system: In need of reform?
Of course, legal mechanisms for the protection of human rights in Africa operate in the context of the practices and attitudes of those in Africa who deal with human rights issues on a daily basis: government officials, lawyers, non-governmental organisations (NGOs), academics and civil society. The legal and extra-legal aspects of human rights protection in Africa form part of the same organic whole, and as such they are interdependent. The ultimate test for any legal system that purports to deal with human rights is the difference it makes to the lives of people.
This contribution focuses primarily on the legal mechanisms for the regional protection of human rights created by the OAU, and in particular on the African Charter system. Some comments will also be made on aspects of human rights that are outside the legal domain, but which are nevertheless important if the Charter system is going to have an influence in changing reality. The underlying question is whether there is a need to change the legal basis of the Charter system in order to enhance its impact.
The African Charter, soon to be supplemented by the African Human Rights Court Protocol, lies at the heart of the African human rights system. Africa has often been criticised on account of its human rights record, and the African Charter system in particular has been subjected to stringent criticism due to its apparent inability to improve the situation. Many are also sceptical about the potential of the Court to improve the situation. It is in this context that this paper asks the question whether the African Charter system is in need of reform.
'Reform' of the Charter system could take place in a number of ways. It could, for example, involve amendment of the Charter itself,  of the African Human Rights Court Protocol,  or of the Rules of Procedure.  On a more informal level it could involve changes in the practices of the Commission. It might also manifest itself in the form of new approaches being followed by those who are actually or potentially engaged in the practical implementation of the system.
If one proceeds from the premise that the level of human rights violations in Africa constitutes a problem of immense magnitude, and that the African Charter system has to date made a far from satisfactory impact in redressing the situation, one may follow one of two very different approaches in respect of the question whether the reform of the Charter system is called for.
The first approach would be to emphasise the value of stability and advocate for minimal reform. According to this line of thinking, the Charter system is not perfect, but at least it is a reality; it is in place. The Commission is just finding its way, and in fact has largely reinvented the Charter to bring the system in line with international jurisprudence. For example, the so-called 'claw-back' clauses, which have been the subject of much criticism, have effectively been neutralised through their interpretation by the Commission. Articles 60 and 61 of the Charter, in terms of which the Commission is required to interpret Charter provisions in line with international precedents, provide ample opportunity for the flaws of the Charter system to be corrected by the Commission. In other words, the system as it stands makes sufficient provision for its own adjustment, if necessary. The African Charter is a flexible instrument and does not need amendment. The Court is still in the process of being established, and should first be given an opportunity to make its contribution before the system is modified.
Moreover, in its present form the Charter enjoys overwhelming support, even if largely on a symbolic level, having been ratified by every member state of the OAU. To now tamper with the system may create confusion, and provide an opportunity for some of the 'fish' that have already been caught to escape. The momentum gained over many years might be lost.
Proceeding from the same premise outlined above, a second approach might emphasise the need for more extensive reform to improve the effectiveness and impact of the system. The Charter was drafted in a world that no longer exists. In the early 1980s Africa was emerging from colonialism, apartheid was alive and well, the Cold War was raging, and the idea of human rights had gained only tentative acceptance. The Charter could consequently not be framed to protect human rights to the same extent as is presently possible.
From this point of view it could be argued that while it is true that the Commission has in substantial respects reinvented the Charter and compensated for its flaws, this is not a healthy development in the long run if these new interpretations are not followed up by the reform of the Charter itself. The rule of law demands that law is predictable, and as a result words used in legal texts should be given their ordinary meaning as far as is possible. To retain its integrity, the Charter should in this sense be understood to say what it means, and to mean what it says. Where there are deviations, these need to be rectified, even if that means that the Charter has to be amended.
The Commission's practice during the last few years of interpreting the Charter in line with international precedents, though brave, does not solve the problems in the long run. The Charter itself is not well known in Africa, and the decisions of the Commission are even less known. Someone who wants to hold a state party to observe the norms of the Charter has a much smaller chance of achieving this if that person first has to cite Commission (or Court) decisions to support a specific interpretation of the Charter that is not obvious from its wording. Decisions of the Commission also do not have the same binding force as, for example, the Charter itself. Moreover, some of the problems inherent in the African Charter, as well as the African Human Rights Court Protocol, are beyond the powers of the Commission and the Court to rectify, even through creative interpretation.
A perhaps small but telling example of the kind of problems the present wording of the Charter causes is that it is hardly worth the effort to go on a massive campaign to popularise the Charter across Africa and to make it available in easily accessible format, in all the languages of the continent, if the Charter does not say what it means.
Because the entire OAU is being restructured, and is being placed on a much firmer human rights foundation, the time is ripe to consider amendments to the Charter as well. Steps are in any event underway to amend the Charter to remedy the way in which women's rights are treated. The other defects might just as well also be remedied in the same process.
To assess the relative merits of the two different approaches outlined above, we would need to take a closer look at the areas where the Charter system is in need of reform, treating each case on its own merits. Only after the full magnitude of potential problem areas has been established in a 'no punches pulled' fashion, could an appropriate response be devised. After such an investigation one might well conclude that it is not a question of total reform or of no reform at all, but rather that some reforms are necessary and others are desirable, and that different strategies should be followed in respect of the various areas where change is needed. This could for example lead to the AU appointing a team tasked with formulating proposals on the reform of the Charter system. What follows is a discussion of a number of areas of possible reform, which in my view deserve serious attention.
In respect of the substantive human rights provisions of the Charter, the following are among the issues that should be considered: According to article 1 of the Charter, '[t]he member states of the Organisation of African Unity parties to the present Charter shall recognise the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them'. This seems to be a very weak way of formulating the obligations of state parties. Words such as 'state parties undertake to respect, protect, promote and fulfil . . .' or 'undertake to secure . . .' would set out the obligations of the state parties in a stronger and more meaningful way.
The way in which the Charter deals with the limitation and derogation of rights is particularly problematic. This is important because rights will be, and under some circumstances should be, limited in any society that is not to become ungovernable. However, this is a process that must be carefully managed, in order to ensure that such limitations are done in an acceptable way. Carefully constructed limitation and derogation clauses serve the dual function of allowing infringements of rights and at the same time defining standards that must be met by such infringements. In other words, such clauses limit rights, but they also limit limitations.
The Commission should thus reverse its interpretation of the Charter on this point, and recognise the right of states to derogate certain Charter rights under closely defined circumstances. Since the Charter is silent on the issue of derogation, international norms in this regard should prevail. A less ideal alternative for the Commission (or the Court) would be to hold that at least those rights containing claw-back clauses may be derogated from in times of real emergency, to the extent that this is allowed under international law. This option would obviously only be available as long as the claw-back clauses are still part of the Charter. If, however, the Charter is going to be amended, it will be advisable to make explicit provision for derogation in the Charter, in addition to the scrapping of the claw-back clauses. Until such time, a ruling from the Commission (or in future the Court) setting out the conditions for legitimate derogation, is called for.
The Commission is the sole supervisory body for the African Charter at the moment, but the Court will come into existence as soon as the African Human Rights Court Protocol has entered into force.  Possible ways of strengthening both institutions will now be considered.
Important aspects of the Commission's mandate to monitor compliance with the Charter norms are not provided for, or are not clearly provided for, in the Charter. This in fact applies in respect of the two most important monitoring mechanisms used by the Commission, namely the individual complaints system and the state reporting procedure.
The Charter contains elaborate and explicit provisions for inter-state complaints, which have hardly played a role in practice.  However, for a long time there was uncertainty as to whether the Commission had the authority to consider ordinary individual complaints, and as a result also uncertainty about the exact mandate of the Commission when considering such complaints. Under the heading 'Other communications', article 58 does provide for a special procedure to be followed where it appears to the Commission that there has been 'a series of serious or massive' human rights violations, but it was not entirely clear from the text whether individual communications could be considered by the Commission if these communications did not reveal such 'serious or massive violations'. Nor was it clear whether the 'serious or massive violations' procedure should necessarily have been the result of an individual communication.
Article 59(1) provides that '[a]ll measures taken within the provisions of the present Charter shall remain confidential until such a time as the Assembly of Heads of States and Governments shall otherwise decide'. This is an obvious and long-standing source of concern in human rights circles. Although it may now for all practical purposes be a routine matter for the Commission's reports to be approved by the Assembly,  the Assembly can still block publication if it wishes to do so. In this way, the independence of the Commission could be inhibited. The most powerful tool at the disposal of international monitoring bodies is publicity, and this provision leaves the question whether there will be such publicity in the hands of the likely perpetrators. The entire article should not survive scrutiny of the Charter.
It is not clear from the Charter what kind of findings the Commission is able to make after the consideration of individual communications, or indeed whether it can make a finding at all, and what the possible remedies are. The Commission has developed a practice of its own in this regard, but this needs to be clarified in the Charter.
The mandate of the Commission to consider the reports that are submitted by states on a bi-annual basis is not at all provided for in the Charter. Article 62 provides that state parties should submit such reports, but does not stipulate to whom they should be submitted, and it does not determine who should consider those reports. The Assembly has agreed to a request by the Commission that the Commission considers the reports,  but this kind of arrangement should be formalised in the Charter itself.
The Commission has started using the potentially powerful mechanism of appointing special rapporteurs, so far with mixed results. Part of the problem is that the legal basis for appointing such rapporteurs is rather tenuous.  Specific provisions for the appointment of special rapporteurs need to be included in the Charter.
Other aspects of the Commission's functioning also deserve attention. The composition of the Commission has been controversial for many years. The main problems have been members' lack of independence from governments, the fact that the various regions of Africa have not been properly represented, and that almost no women served on the Commission. The situation has improved in some respects in recent years, but appropriate provisions in the Charter determining the profile of those who are appointed to serve on the Commission would help to increase and consolidate those gains.
The Commission has a daunting task, if one considers the sheer number of countries in Africa, the prevalence of human rights violations on the continent, and the diversity of African cultural, religious and legal traditions. As is evident from the experience in the Americas, regional human rights commissions are powerful tools in such situations, in some respects even more so than courts.  However, the question needs to be asked whether the African Commission could not be better structured to meet this challenge.
It is almost inconceivable to think that a commission of eleven people, meeting twice a year for a few days, during which time they have a huge workload to attend to, can have a significant impact in such a situation. I have argued elsewhere that it is perhaps necessary to think about a stronger sub-regional division of responsibilities within the Commission.  For example, commissioners living within a certain area (for example East or West Africa) may be given a collective role in terms of attempts at reconciliation and fact-finding within that sub-region. Whether a change in the Charter would be required to achieve this would depend on the nature of the specific proposal. Much can be done in this regard without such an amendment, simply by changing the practice of the Commission or the Rules of Procedure.
Given the fact that the African Human Rights Court Protocol was adopted only recently, and that the Court has not yet been established, the question could be asked whether it is appropriate to talk about reforming the Court system. It is submitted that the strengths and weaknesses of the Court should indeed be analysed continuously, right from the start, in order to emphasise the strengths and to downplay, if not eliminate, possible weaknesses in a pro-active manner.  The Commission had a very slow start; the same should not be allowed to happen in respect of the Court.
The creation of the Court could serve to strengthen the African regional system. Without courts, the European and Inter-American systems would have had little chance to effect their societies in the way that they have. At the same time, care should be taken to ensure that the African Human Rights Court does not undermine the African Commission, either by weakening its budget or by making the Commission irrelevant. Africa needs a fully functioning Commission as well as a Human Rights Court.
In spite of the general advance which the Protocol on the Court represents, I find some aspects of the Protocol troubling. Again, a creative court could through progressive interpretation alleviate some problems. However, to have to depend on the possible goodwill of individual judges to do this undermines the rule of law, diminishes the credibility of the system and provides justifications for states not to ratify the Protocol. The wider the discretion granted to judges, the more unpredictable the system becomes, and the less likely states are to submit themselves to the system, and to remain committed to its success. It should be remembered that the entire system is based on consent, not only in terms of the willingness of states to become state parties, but also in terms of the budget allocated and in practical terms also the deference shown to the Court.
would appear to extend the jurisdiction of the Court over any treaty which impinged on human rights in Africa, eg, the OAU Convention on Refugees, and the African Charter on the Rights and Welfare of the Child, but also UN instruments such as the International Covenants on Human Rights . . .
They suggest that even (sub-) regional instruments, such as the ECOWAS treaty, could become justiciable. According to Udombana, an aggrieved person who is not adequately covered by the African Charter may bring a case in terms of the Protocol under 'any other international treaty' that provides a higher level of protection.  Mutua makes essentially the same point.  Presumably even environmental treaties and those related to mercenaries etc would become justiciable, in so far as they have human rights implications.
If this interpretation is correct, and followed by the Court, it will cause jurisprudential chaos. It will mean that all human rights treaties ratified by a state party to the Protocol in the past will become justiciable, and future ratification of treaties will have the same consequence. States might be deterred not only from ratification of the Protocol, but from ratification of any human rights treaty.
Following this approach would also mean the end of even the pretence that there is something unique about human rights in Africa, a point that has been argued so passionately over the years.  This would amount to unconditional surrender to globalisation and uni-versalism in its most pervasive form. While other regions continue to enforce human rights as they themselves understand the concept, Africa — where so much is made of the unique features of the African Charter — will be the only region in the world that enforces the wider body of international human rights treaty law, with the African Charter being just one treaty among many.
The present situation nevertheless has the potential to create confusion. The possibility that article 3(1) could be interpreted to grant the Court such a wide jurisdiction could deter states from ratifying the Protocol. It is also possible that the Court could follow the interpretation of article 3(1) advanced by the authors. Article 3(1) should consequently be amended to provide that the Court exercises jurisdiction over 'the African Charter and all Protocols to the Charter'. The African Human Rights Court should in any event make it clear at the first opportunity that it does not exercise jurisdiction over the entire corpus of human rights treaties ratified by African states.
The above is symptomatic of a deeper problem. Because of the defects in the Charter, the rhetoric about a unique conception of human rights in Africa is often abandoned around the first corner. International norms are embraced with open arms in an uncritical fashion. Africa is rendered defenceless against the cold winds of globalisation. There is, however, an alternative. The Charter should be modernised to ensure that it meets the needs of contemporary African society.
There are also, in the second place, problems in respect of the interpretation provisions of the African Human Rights Court Protocol. It is assumed that article 7 of the Protocol, under the heading 'Sources of law' (cited above), deals with interpretation and not with jurisdiction, which is covered in article 3. While article 3(1) creates the impression that it grants the Court a jurisdiction that has an excessively wide scope, article 7 seems to dramatically and unnecessarily limit the sources of law that are to be used by the Court as points of reference when engaging in interpretation, by recognising only the provisions of the Charter 'and other relevant human rights instruments ratified by the state concerned' as legitimate sources of the law. Earlier reference was made in this contribution to the fact that articles 60 and 61 of the Charter allow the Commission to draw very widely on international jurisprudence in interpreting the Charter, and the fact that the Commission has by and large done this to good effect. However, articles 60 and 61 grant this power only to the Commission. Article 7 of the Protocol grants the Court much less latitude in respect of the Charter. This is bound to lead to a difference in the way the rights in the Charter are interpreted by the Commission and the Court, and in general to impoverish the jurisprudence of the Court.
Moreover, the Court seems to be expected in terms of article 7 of the Protocol to interpret the rights in the Charter differently in respect of the various state parties, depending on the treaties that each one has ratified at the time of the alleged violation. An article on interpretation requiring the Court to take cognisance of the entire body of international human rights law (without being bound by it) would bring the Protocol in conformity with the Charter, and resolve the issues raised above.
Access to the Court by individuals is another problematic issue. The Protocol grants the Commission (and state actors) access to the Court, presumably after the Commission has heard the case in question.  This is an automatic consequence of the ratification of the Protocol. Access by individuals to the Court is provided for in article 5(3) in the following terms: 'The Court may entitle relevant Non-Governmental Organisations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with Article 34(6) of this Protocol.' According to article 34(6) states may make a declaration accepting the competence of the Court to receive such cases.
In terms of these provisions, individuals and NGOs do not have standing to seize the Court in respect of states that have ratified the Protocol, unless such a state has made the article 34(6) declaration. Unless such a declaration has been made, individuals and NGOs will remain unable to proceed on their own volition past the Commission level and to take the initiative to secure binding decisions in their favour. They are in effect left to the mercy of the Commission to take their cases further. Where individuals are placed in this position — and it will be submitted that it is likely to be the case in respect of most states for a long time — the Protocol could provide a very low level of protection for the individual, except if the Commission follows an activist approach, which cannot be guaranteed.
In respect of states that have made the additional declaration in terms of article 34(6), individuals and certain NGOs  will have 'direct' access to the Court. 'Direct' in this context presumably means that they will be allowed to bypass the Commission. Granting direct access to individuals to the Court provides a high — and many will say too high — level of protection to the individual, which could be seen as threatening to state sovereignty, and result in states not making the additional declaration.
Given the sensitivities about international adjudication expressed by the states involved in the drafting and adoption process of the African Charter as well as the Protocol, granting individuals direct access to an untested and untried court that takes binding decisions is not likely to be a popular option.  Requiring individuals first to present their case to the Commission before approaching the Court cushions the blow and has a higher chance of being accepted by states. In fact, granting states a choice between accepting the limited level of protection to human rights offered by the mere ratification of the Protocol, and accepting what many states are certain to consider the excessive level of protection that comes into play when the declaration is made, could well be seen by cynics as a move to ensure a choice in favour of the first option and to render the individual powerless.
Given the likely reluctance of states to make the additional declaration, most people in Africa are bound to live under dispensations where they do not have the right of access to the Court, even after the African Human Rights Court Protocol has entered into force.
The ideal option would be for the Protocol, as an automatic consequence of the ratification of the Protocol, to include the right of individuals and NGOs to have access to the Court after they have gone through the Commission procedure, and after they have met the initial admissibility criteria, including the exhaustion of domestic remedies. If the idea that individuals may proceed on their own initiative from the Commission to the Court is politically unacceptable — and it was indeed a heavily opposed position during the drafting of the Protocol — the second best option would be to provide for such access, but to include a provision entitling states to make a declaration indicating that they do not wish to subject themselves to this procedure. In other words, this will allow them to 'opt out' as an exception to the rule.
At the outset of this article the broader social context within which the Charter system operates was emphasised. In order to make the system the dynamic institution that it should be, there are many possible changes that could supplement the more technical, legal amendments suggested above and enhance the impact of the system as a whole. A small and to some extent random selection from the list of the changes that those of us who on a daily basis engage in human rights issues in Africa can bring about, will now be mentioned.
The first point relates to attitude. An uncritical attitude to the Charter system, in terms of which it is seen as above improvement, is as damaging as the cynical approach that one sometimes encounter, according to which nothing good can be expected from either the Commission or the Court. What we need is loyal or engaged criticism. We have the duty to respect, protect, promote — and criticise — the Charter.
On a more practical level, the Charter system needs to be made part of the curriculum of the different universities in Africa, with a view to educating lawyers who can make it accessible to their clients and for judges to cite Charter jurisprudence in their decisions. There is a great need for a textbook with instruments, cases and materials — a 'human rights reader' — that caters specifically for African law faculties and covers the Charter system in particular. A website needs to be developed on which progressive developments in respect of human rights law may be posted. The Charter needs to be internalised into the legal culture of Africa.
There are a small number of African journals that deal with human rights law. More of these are needed to develop the intellectual climate in which the system can flourish. In general, the conditions for the emergence of an indigenous African human rights jurisprudence need to be improved. African courts should be placed in a position to refer to one another in their judgments, as opposed to having continuously to cite non-African cases and precedents.
Well-edited and readily available publications containing the decisions of the Commission and the Court need to be developed, as well as a digest to make access easier. The compilations of decisions of the Commission that are in existence are very useful, but they lack proper referencing tools, are full of mistakes and are not readily available.
The question of the location of the Court is an important one, and does not receive enough attention. The experience with the Commission being based in a place as difficult to access as The Gambia has shown that the Court will have to be based elsewhere. In order to provide the intellectual setting in which the Court can flourish and have a wider impact in Africa, and given that all judges except the president will work part-time, it should not only be on one of the main air routes, but should also be close to libraries and universities that focus on human rights law in Africa. It will be ideal if the Commission follows the Court to such a setting.
Some of the reforms that have been proposed in respect of the UN human rights treaties may be equally applicable to the OAU system.  I would for example argue that in each country, an inter-departmental body responsible for reporting and dealing with communications under all human rights treaties be formed. These bodies should have access to a database with the information necessary to deal with reports under all treaties. State efforts aimed at meeting treaty obligations such as reporting, and dealing with follow-up, should be part of an ongoing process. A treaty support unit should be formed in Africa, to assist governments with setting up such structures, and to train those who will staff it.
In addition, national human rights institutions should become involved in follow-up, both in respect of individual communications and reports. The national annual reports of these institutions should comment on compliance with directives from OAU and UN human rights bodies, and the decisions of the African Human Rights Court.
I have discussed some of the most obvious flaws of the African Charter system. The ideal option for the future would indeed be the reform of the system by means of a protocol, designed to rectify these and other possible defects in a systematic and comprehensive manner. States who take the system seriously and who want it to be effective should be willing to participate in such a process. It is also clear that, if the system is at some point going to be amended, it should be done before the Court comes into existence. The African Human Rights Court, in contrast with the experience with the European Court of Human Rights, is certain to start dealing with substantive issues soon after it comes into being. It would be wasteful if the Court started developing a certain jurisprudence, only to find that substantial portions of it have become obsolete within a few years when the basic rules are changed.
The debate on the possible reform of the system in itself is already an important contribution towards the improvement of the system, since it is likely to make the system more responsive to the needs of the continent. Engaging in this debate is to exercise a form of ownership, and to say that since the Charter belongs to all of us, it is up to us to continuously ensure its improvement. Ideas are developed, consequences are thought through, and new initiatives are born in the course of such discourses. Such a debate is already a first step towards a more efficient and stronger regional human rights system in Africa.
 The first and most elaborate set of guidelines was adopted by the Commission in 1988. AFR/COM/HPR.5(IV). A second and apparently additional set of guidelines, which is much more concise, was adopted by the Commission in 1998. OAU Doc/05/27 (XXIII).
 47 UNTS 39 (1963) International Legal Materials, 766, reprinted in C Heyns Human rights law in Africa 1998 (2001) 117.
 Constitutive Act of the African Union CAB/LEG/23.15, entered into force 26 May 01.
 Art 68 of the Charter provides that amendments to the Charter need to be approved by a majority of state parties.
 Art 35 of the Protocol provides that the Assembly has to approve amendments to the Protocol by a simple majority.
 Rules 121 & 122 provide that the Commission can change its own rules.
 Eg 11 protocols have been adopted in the European system since 1950 and the 12th protocol has been opened for ratification.
 It should also be pointed out that the call in the Preamble of the Charter to eliminate Zionism, together with other evil systems such as apartheid, has been considered to be problematic by some states. For example, South Africa has entered a note verbale when it ratified the Charter, objecting to the characterisation of Zionism in the Charter. Reprinted in C Heyns Human rights law in Africa 1997 (1999) 10.
 Arts 6 & 7. For a discussion, see C Heyns 'Civil and political rights in the African Charter' in R Murray & M Evans (eds) The African Charter on Human and Peoples' Rights: The system in practice (forthcoming, Cambridge University Press).
 Although art 10, dealing with the right to free association, could be understood to incorporate this right.
 The right to vote in genuine periodic elections, based on universal franchise, as recognised in art 25(b) of the International Covenant on Civil and Political Rights is not recognised in the Charter.
 Women's rights are grouped with children's rights in art 18(3), suggesting that the role of women is confined to that context. For a discussion, see MS Nsibirwa 'A brief analysis of the Draft Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women' (2001) 1 African Human Rights Law Journal 40. The language of the Charter is also strongly male oriented. Only the masculine form is used throughout. Art 42 provides for the election of a 'Chairman' and a 'Vice-Chairman'.
 It is also not entirely clear whether art 15 recognises the right of the unemployed to be employed, or the right of the employed to be treated fairly in the course of their employment.
 For example, it is not clear exactly how the duty to 'preserve the harmonious development of the family' in art 29(1) should be interpreted and given practical application by a court of law.
 See R Higgins 'Derogation under human rights treaties' (1976-77) 48 The British Yearbook of International Law 281.
 See for example EA Ankumah The African Commission on Human and Peoples' Rights (1996) 176.
 Communication 101/93, Civil Liberties Organisation in respect of the Nigerian Bar Association v Nigeria, Eight Annual Activity Report para 16.
 It should at the same time be noted that the small number of socio-economic rights contained in the Charter do not contain the standard and in my view necessary internal modifiers. For example, art 16 provides as follows: '1. Every individual shall have the right to enjoy the best attainable state of physical and mental health. 2. States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure they receive medical attention when they are sick.' The unconditional way in which the right is stated - it is not made subject to progressive implementation, the availability of resources, etc - could easily create unrealistic expectations, and as such could undermine the legitimacy of the Charter.
 Eg Communications 105/93, 128/94, 130/94 & 152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria, Twelfth Annual Activity Report para 68.
 n 25 above, para 69.
 In this context the recognition of duties in the African Charter system could play a unique role. It is instructive to note that art 27 appears under the heading 'Duties'. Duties can in effect be seen as limitations on rights. A general limitation clause could for example state that all the rights in the Charter may be limited by laws of general application in accordance with those duties that are reasonable and justifiable in an open and democratic society, in respect of the rights of others, collective security, etc.
 Communication 70/92, Commission Nationale des Droits de l'Homme et des Libertés v Chad, Ninth Annual Activity Report para 21.
 See J Oraá Human rights in states of emergency in international law (1992) 210.
 Fifteen ratifications are required in terms of art 34(3) for the Protocol to enter into force. So far, ratifications by the following states have been received: Burkina Faso, Mali, Senegal, The Gambia and Uganda.
 This was confirmed in Communications 147/95, 149/96, Sir Dawda K Jawara v The Gambia, Thirteenth Annual Activity Report para 42.
 See R Murray The African Commission on Human and Peoples' Rights and international law (2000).
 R Murray 'Serious or massive violations under the African Charter on Human and Peoples' Rights: A comparison with the Inter-American and European mechanisms' (1999) 17 Netherlands Quarterly of Human Rights 109.
 That is, the involvement of the Assembly should be terminated. The concept that the Commission may make special findings in cases of exceptional gravity does not present a problem.
 See F Viljoen 'Overview of the African regional human rights system' in Heyns (n 7 above) 128.
 Viljoen (n 36 above) 154.
 This is in fact provided for in rules 85(3) & 86(1) of the Rules of Procedure.
 See F Viljoen 'State reporting under the African Charter on Human and Peoples' Rights: A boost from the South' (2000) 44 Journal of African Law 110. The observation by M Mutua 'The African Human Rights Court: A two-legged stool?' (1991) 21 Human Rights Quarterly 350 that the Commission communicates its comments and general observations to the state in question after consideration of its report, is not borne out by Commission practice.
 F Viljoen 'The relevance of the Inter-American human rights system for Africa' (1999) 11 African Journal of International and Comparative Law 659.
 C Heyns 'The regional and subregional protection of human rights in Africa: In search of a realistic dream' African Society of International and Comparative Law Proceedings of the Eighth Annual Conference Cairo (1996) 170.
 For commentary on the creation of the Court, see GJ Naldi & K Magliveras 'Reinforcing the African system of human rights: The Protocol on the Establishment of a Regional Court of Human and Peoples' Rights' (1998) 16 Netherlands Quarterly of Human Rights 431; A Stemmet 'A future African Court for [sic] Human and Peoples' Rights and domestic human rights norms' (1998) 23 South African Yearbook of International Law 233; J Mubangizi & A O'Shea 'An African Court on Human and Peoples' Rights' (1999) 24 South African Yearbook of International Law 256; NJ Udombana 'Toward the African Court on Human and Peoples' Rights: Better late than never' (2000) 3 Yale Human Rights and Development Law Journal 45 and Mutua (n 39 above). See also Murray (n 33 above) 27.
 Naldi & Magliveras (n 43 above) 435.
 Udombana (n 43 above) 90.
 Mutua (n 39 above) 354.
 It is already controversial in many jurisdictions to make socio-economic rights justiciable by the domestic courts. The Protocol, in making the socio-economic rights in the African Charter justiciable by a regional court, breaks new ground. It is unprecedented to give power over the national budget to an international tribunal and it remains to be seen to what extent this could work. To make the entire Covenant on Economic, Social and Cultural Rights in its present form justiciable by an international court is unheard of at this stage, while state sovereignty is still such a powerful notion.
 See M Mutua 'The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties' (1995) 35 Virginia Journal of International Law 339; UO Umozurike The African Charter on Human and Peoples' Rights (1997) 87. See also C Heyns 'Where is the voice of Africa in our Constitution?' Occasional Paper 8, Centre for Human Rights (1996).
 Eg art 23 Draft Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women.
 Udombana (n 43 above) 99 observes that the requirement that only NGOs with observer status before the Commission may approach the Court is unduly restrictive.
 In the case of Europe, for example, a system of direct access to the single court was introduced decades after the Court was founded and had established the foundations of its jurisprudence.
 The Commission has stated that the local remedies must be 'available, effective and sufficient'. Communications 147/95, 149/96, Sir Dawda K Jawara v The Gambia, Thirteenth Annual Activity Report para 31.
 There may be a partial way out of the problem caused by the fact that the admissibility criteria are not obligatory, short of the amendment of the Protocol. States that make the declaration could enter a reservation specifying that they do not agree to the jurisdiction of the Court unless the admissibility criteria (or at least the important ones, such as the exhaustion of domestic remedies) in the Charter have been met. However, this would require a relatively high level of goodwill on the part of states, and many states might opt simply not to make the declaration at all.
 It should be noted that the Court has the power under art 6(3) to refer such cases to the Commission, but it is not compelled to do so.
 See C Heyns & F Viljoen The United Nations human rights treaties at the national level (forthcoming, Kluwer Law International).
 One way of avoiding a situation where a substantial number of states defect from the system would have been to make membership of the new African Union dependent upon acceptance of whatever reforms in respect of the African Charter system might be agreed upon. For all practical purposes that opportunity has already been missed, but there might be others that could be used with similar effect.

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I Forgot To File A Legal Action To Foreclose On My Mechanics Lien Within 90 days: Now What? Or My Contractor Recorded A Mechanic’s Lien And Not Filed A Timely Lawsuit To Foreclose On It: Now What?
California law requires that a lawsuit be filed to foreclose on a mechanic=s lien within 90 days (Civil Code section 3144) after recording it. If the contractor fails to file a lawsuit to foreclose on that lien within 90 days, it is barred from recovering on that stale mechanic's lien. If that happens, the question is what the contractor can do to try re-obtaining its mechanic's lien rights and, alternatively, what can the landowner do to have the stale lien removed. This article will discuss each party's legal rights when there is a stale lien.
If a timely lawsuit is not filed, and the claimant refuses to release the lien or cannot be located, the property owner can file a petition, under Civil Code section 3154, to have the court remove the lien. That section basically states that at any time after the expiration of the 90 day period and where no action has been brought to enforce that lien, the owner of the property or the owner of any interest therein may petition the proper court for a decree to release the property from the lien. Such a petition is filed in the Superior Court in the county where the property is located. A hearing is then set not more than 30 days after the filing of the petition and the person seeking to have the lien removed must serve the petition and a notice of the hearing on the lien holder at least ten days before the hearing. Service can be made by registered or certified mail, with service effective five days after deposit. If the lien claimant responds to the petition, the response is limited to the timeliness of filing an action to foreclose on the lien. Neither party can raise any other claims or cross-claims in the proceeding. The prevailing party on the petition is entitled to attorneys' fees not to exceed two thousand dollars ($2,000).
It should be noted that filing a petition under section 3154 does not bar any other claim for relief by the owner of the property, and that the decree canceling a claimant's lien does not bar the lien claimant from bringing any other cause of action or claim for relief, other than an action foreclosing the lien.
Generally, a lien claimant can record a second lien if the first lien was voluntarily removed and the time for recording a second lien has not expired.
In the case of Koudmani v. Ogle Enterprises, Inc. (1996) 47 Cal App 4th 1650 a subcontractor filed a lien 87 days after the owner recorded a notice of completion. Fifteen days later, the subcontractor filed a second mechanic's lien. Two days after that, the owner's attorney sent a letter to the subcontractor, demanding that the original lien be released because the contractor had failed to file a foreclosure action on the first lien within 90 days of recording it. The subcontractor released the first lien, and then filed a timely foreclosure action on the second one. At that point, the owner filed a petition to release the lien, pursuant to Civil Code section 3154, which allows an owner to move the court to release a lien when a foreclosure action has not been filed within 90 days of the recording of the lien. The trial court ruled against the subcontractor, and released the property from the second lien. The appellate court reversed the trial court's decision and allowed the subcontractor to foreclose on his second lien. Civil Code section 3154 provides owners with a simple remedy to remove mechanic's liens when lien claimants fail to file timely actions to foreclose on them. However, if a claimant voluntarily releases a lien before the owner files a petition, the release does not, on its face, bar the claimant from filing a second timely lien.
If a contractor has failed to file a timely foreclosure lawsuit, a contractor should determine if he or she can record a second mechanic's lien in a timely manner. The specific time limitation for recording a lien is based on: (a) whether actual completion is obtained or there is an equivalent to completion obtained; (b) whether or not the owner shortened the deadlines by recording a Notice of Completion or Notice of Cessation; and (c) whether or not the contractor has a direct contract with the owner of the project.
California law allows an owner to record one of two types of possible notices that, after timely recordation, will shorten the time for recording a mechanic's lien. The two types of notices are either a Notice of Completion or alternatively a Notice of Cessation. By shortening the time within which to record Liens and serve Stop Notices, the Notice of Completion and/or Cessation can be very useful from an owner's or lender's perspective, and from the Lien and Stop Notice claimant's perspective, a fatal trap if the shortened time limits are not met.
A Notice of Cessation is used when work has temporarily halted for more than 30 days. (Civil Code §3092). A Notice of Completion must be filed after work has actually been completed, as that term is defined in Civil Code §3086. Listing an erroneous date of completion does not affect the validity of the notice so long as the true date of completion was within 10 days preceding the date of recording of such notice.
When the owner records a valid Notice of Completion (i.e., a proper Notice of Completion recorded within ten days after actual completion of work on the project). (Civil Code §3093).
(1) A prime contractor in direct contract with the owner must record his lien within sixty (60) days of the recording of the Notice of Completion. (Civil Code § 3116).
(2) All others must record their liens within thirty (30) days of the date the Notice of Completion is recorded. (Civil Code § 3116).
(1) If the owner, after a thirty (30) day continuous cessation of labor, records a Notice of Cessation, this is equivalent to the recording of a Notice of Completion. (Civil Code § 3092).
(2) In that case, the prime contractor has sixty (60) days, and all other claimants have thirty (30) days, within which to record their liens. (Civil Code §§ 3115, 3116).
In conclusion, if a contractor has failed to file a timely foreclosure lawsuit, a contractor should determine if he or she can record a second mechanic's lien in a timely manner (e.g., 30, 60, or 90 days after the project is substantially completed). If so, the first lien should be released the first lien and a new one recorded. However, the lien release should clearly indicate that the original claim remains unsatisfied. Conversely, if the lien has been satisfied the lien release should expressly state that the underlying obligation has been fully satisfied. If the lien release is not clear as to what is being released, the owner may then argue that the contractor has released all its rights to record a new lien.
This article, ©2010 was written by William C. Last, Jr. Mr. Last is an attorney who has been specializing in Construction Law for over 30 years. In addition to belonging to a number of construction trade associations, Mr. Last holds a California "A" and "B" license. He can be contacted at 415-764-1990 or 650-425-7679. A number of his past articles can be found on his website (lhfconstructlaw.com). This bulletin is published periodically to provide general information about current legal issues. The articles are not intended to be a substitute for the advice of an attorney as to a specific problem. If you have a specific legal question or need legal advice, you should contact an attorney.


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[291 U.S. 183, 184] The Attorney General andMr. Erwin N. Griswold, of Washington, D.C., for petitioner.
The argument for the Commissioner is this-The entire proceeds from the working of a mine constitute income within the constitutional provision and may be subjected to taxation without regard to depletion. Here the beneficiary claims deduction for an item subject to taxation as gross income; but no provision in the statute allows him to subtract anything because of depletion.
Whatever may be said concerning the power of Congress to treat the entire proceeds of a mine as income, ob- [291 U.S. 183, 187] viously this statute has not undertaken so to do. The plain purpose, we think, was to tax only that portion of the proceeds remaining after proper allowance for depletion. This allowance represents property consumed, is treated as if capital assets, and no tax is laid upon it. The statute must be so applied in practice as to carry out this purpose. The intention was that owners of beneficial interests should not be unduly burdened.
True it is that section 219(b) directs that in cases of 'income which is to be distributed to the beneficiaries periodically, ... [291 U.S. 183, 189] the tax shall not be paid by the fiduciary, but there shall be included in computing the net income of each beneficiary that part of the income of the estate or trust for its taxable year which, pursuant to the instrument or order governing the distribution, is distributable to such beneficiary.' But we cannot accept the view that this was intended to impose a tax upon that part of the proceeds which represents the return of capital assets, whenever this has been paid over to the beneficiary. In cases like the one before us so to hold would in practice result in taxing allowances for depletion, contrary to what we regard as the plain intent of the statute.
As the statute permits the deduction only because the allowance represents a return to the taxpayer, in the form of income, for some part of his capital worn away or exhausted in the process of producing the income, see Murphy Oil Co. v. Burnet, 287 U.S. 299 , 53 S.Ct. 161; Bankers Pocahontas Coal Co. v. Burnet, supra; United States v. Dakota- Montana Oil Co., 288 U.S. 459 , 53 S.Ct. 435, it would seem plain that there is no occasion for a depletion allowance, and that the statute authorizes none where as here the taxpayer, a donee of the income, has made no capital investment in the property which has produced it. This was not doubted where the deduction claimed, but denied, was for depreciation, Weiss v. Wiener, 279 U.S. 333 , 49 S.Ct. 337, and it was only because the court concluded that the taxpayer had made a capital investment, represented by the minerals in place, that he was permitted to deduct an allowance for depletion from royalties received from the production of an oil well in Palmer v. Bender, 287 U.S. [291 U.S. 183, 191] 551, 53 S.Ct. 225, and of a mine in Lynch v. Alworth- Stephens Co., 267 U.S. 364 , 45 S.Ct. 274. The function of the allowance for depletion as a means of securing to the taxpayer a credit against gross income for so much of his capital investment as is restored from the income does not differ from that for depreciation or obsolescence when allowed as a deduction. See United States v. Ludey, 274 U.S. 295 , 47 S.Ct. 608; Gambrinus Brewery Co. v. Anderson, 282 U.S. 638 , 51 S.Ct. 260; United States v. Dakota-Montana Oil Co., supra. Legally and economically the statutory allowances for depletion and depreciation stand on the same footing. Both are means of restoring capital invested, the one, in ore, the other, in structures and improvements. Both are allowed by same language in a single statute. Neither has any function to perform if the taxpayer has made no investment to be restored from income received. The incongruity of allowing the deduction for depletion where the taxpayer has made no capital investment but denying it for depreciation is apparent.
The income here, derived from mining royalties, cannot be said to be a return of the taxpayer's capital because if paid to the lessor it would have restored to him some part of his capital investment. The lessor, by directing that the royalties be distributed to the beneficiaries, cut himself off from the enjoyment of the privilege which the statute gives to restore his capital investment from royalties, and he has denied that privilege to the trustees. The taxpayer may not claim the benefit of a deduction which the statute grants to another, Dalton v. Bowers, 287 U.S. 404 , 53 S.Ct. 205; Burnet v. Clark, 287 U.S. 410 , 53 S.Ct. 207; Burnet v. Commonwealth Improvement Co., 287 U.S. 415 , 53 S.Ct. 198, and the petitioners are in no better position to claim the privilege because the lessor, to whom it was given, has relinquished it.
[ Footnote 1 ] Revenue Act, 1921, c. 136, 42 Stat. 227, 247.

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Research activity of Dr Ferré has been conducted in the field of mitochondrial diseases.
He began is career by studying in silico the human mitochondrial proteome and developing a bioinformatics research strategy to identify new mitochondrial proteins on the basis of their prokaryotic origin. In parallel to this overall strategy of screening, he focused on the study of the Opa1 protein, one of the proteins associated with autosomal dominant optic atrophy, which is involved in mitochondrial fusion. Opa1, a dynamin GTPase, is involved in the remodeling of the mitochondrial inner membrane, apoptosis, maintenance of mitochondrial DNA, and energy metabolism. He finally developed an international database listing the variations of Opa1 so as to characterize its mutational spectrum. This tool was used as a complement to a multicentric clinical study involving nearly a thousand patients with optic neuropathy. His work has led to the development of novel bioinformatics tools that should contribute to a better understanding of mitochondrial pathophysiology.
He is currently focused on three areas: 1) obtaining mitochondrial genetic information by developing the 3rd generation Nanopore sequencing, an innovative technique for sequencing mitochondrial DNA in which double-stranded DNA is read directly without DNA amplification or incorporation of nucleotides; 2) the establishment of biomedical databases, as a member of the Human Variome Project Gene Disease Specific Database Advisory Council since 2012; 3) Big data, an area of research which follows the need to analyze large amounts of data generated by the previous two axes and open data policy.
Marc Ferré graduated in 2002 from a French Grande Ecole of Engineering (ESEO) and in December 2009 a PhD in Bioinformatics. Until August 2014, he was employed by the University Hospital of Angers (France) as bioinformatician through the formation of a national network coordinated by the French Department of Health and Social Affairs (genetic study of neuromuscular and sensory pathologies and mental retardation).
He is currently Associate Professor in Molecular Biology and Bioinformatics at the Angers Medical School.
He is also a staff-member to the research team Mitolab (mitolab.eu) of the UMR CNRS 6214/INSERM 1083 — CNRS, The Centre National de la Recherche Scientifique (National Center for Scientific Research), is a government-funded research organization, under the administrative authority of France's Ministry of Research; INSERM, the Institut national de la santé et de la recherche médicale (French National Institute of Health and Medical Research), is a public scientific and technological institute which operates under the joint authority of the French Ministry of Health and French Ministry of Research.
Mitochondrial diseases preferentially involve proteins with prokaryote homologues.Y. Tourmen, M. Ferre, Y. Malthiery, P. Dessen and P. Reynier. C R Biol, 2004.
Sporadic optic atrophy due to synonymous codon change altering mRNA splicing of OPA1.P. Amati-Bonneau, L. Pasquier, E. Lainey, M. Ferre, S. Odent, Y. Malthiery, D. Bonneau and P. Reynier. Clin Genet, 2005.
eOPA1: an online database for OPA1 mutations.M. Ferre, P. Amati-Bonneau, Y. Tourmen, Y. Malthiery and P. Reynier. Hum Mutat, 2005.
Mitochondrial coupling defect in Charcot-Marie-Tooth type 2A disease.D. Loiseau, A. Chevrollier, C. Verny, V. Guillet, N. Gueguen, M. A. Pou de Crescenzo, M. Ferre, M. C. Malinge, A. Guichet, G. Nicolas, P. Amati-Bonneau, Y. Malthiery, D. Bonneau and P. Reynier. Ann Neurol, 2007.
Genotype-phenotype correlation in mitochondrial optic neuropathies.C. Verny, P. Amati-Bonneau, M. Ferre, M. Barth, V. Guillet, A. Chevrollier, Y. Malthierry, F. Dubas, D. Bonneau and P. Reynier. Neurology, 2007.
Carotid artery dissection in an adult with the Simpson-Golabi-Behmel syndrome.I. Penisson-Besnier, T. Lebouvier, M. P. Moizard, M. Ferre, M. Barth, G. Marc, M. Raynaud and D. Bonneau. Am J Med Genet A, 2008.
Hereditary optic neuropathies share a common mitochondrial coupling defect.A. Chevrollier, V. Guillet, D. Loiseau, N. Gueguen, M. A. de Crescenzo, C. Verny, M. Ferre, H. Dollfus, S. Odent, D. Milea, C. Goizet, P. Amati-Bonneau, V. Procaccio, D. Bonneau and P. Reynier. Ann Neurol, 2008.
Reversible optic neuropathy with OPA1 exon 5b mutation.K. Cornille, D. Milea, P. Amati-Bonneau, V. Procaccio, L. Zazoun, V. Guillet, G. El Achouri, C. Delettre, N. Gueguen, D. Loiseau, A. Muller, M. Ferre, A. Chevrollier, D. C. Wallace, D. Bonneau, C. Hamel, P. Reynier and G. Lenaers. Ann Neurol, 2008.
Mitochondrial complex I deficiency in GDAP1-related autosomal dominant Charcot-Marie-Tooth disease (CMT2K).J. Cassereau, A. Chevrollier, N. Gueguen, M. C. Malinge, F. Letournel, G. Nicolas, L. Richard, M. Ferre, C. Verny, F. Dubas, V. Procaccio, P. Amati-Bonneau, D. Bonneau and P. Reynier. Neurogenetics, 2009.
Molecular screening of 980 cases of suspected hereditary optic neuropathy with a report on 77 novel OPA1 mutations.M. Ferre, D. Bonneau, D. Milea, A. Chevrollier, C. Verny, H. Dollfus, C. Ayuso, S. Defoort, C. Vignal, X. Zanlonghi, J. F. Charlin, J. Kaplan, S. Odent, C. P. Hamel, V. Procaccio, P. Reynier and P. Amati-Bonneau. Hum Mutat, 2009.
OPA1-related dominant optic atrophy is not strongly influenced by mitochondrial DNA background.D. Pierron, M. Ferre, C. Rocher, A. Chevrollier, P. Murail, D. Thoraval, P. Amati-Bonneau, P. Reynier and T. Letellier. BMC Med Genet, 2009.
Hereditary Optic Neuropathies Share a Common Mitochondrial Coupling Defect.C. Verny, P. Amati-Bonneau, A. Chevrollier, V. Guillet, D. Loiseau, N. Gueguen, M. P. de Crescenzo, M. Ferre, H. Dollfus, S. Odent, D. Milea, C. Goizet, V. Procaccio, F. Dubas, P. Reynier and D. Bonneau. Neurology, 2009.
A Novel Dominant C240Y Mutation in GDAP1 Associated with a Mitochondrial Complex I Deficiency and Mitochondrial Structural Modifications.J. Cassereau, C. Verny, A. Chevrollier, N. Gueguen, M. Ferre, M. C. Malinge, P. Amati-Bonneau, V. Procaccio, P. Reynier, F. Dubas and D. Bonneau. Neurology, 2009.
Acute and late-onset optic atrophy due to a novel OPA1 mutation leading to a mitochondrial coupling defect.Y. Nochez, S. Arsene, N. Gueguen, A. Chevrollier, M. Ferre, V. Guillet, V. Desquiret, A. Toutain, D. Bonneau, V. Procaccio, P. Amati-Bonneau, P. J. Pisella and P. Reynier. Molecular Vision, 2009.
OPA1-associated disorders: phenotypes and pathophysiology.P. Amati-Bonneau, D. Milea, D. Bonneau, A. Chevrollier, M. Ferre, V. Guillet, N. Gueguen, D. Loiseau, M. A. de Crescenzo, C. Verny, V. Procaccio, G. Lenaers and P. Reynier. Int J Biochem Cell Biol, 2009.
[Hereditary optic atrophies].C. Scherer, V. Procaccio, M. Ferre, V. Guillet, P. Reynier, P. Amati-Bonneau, F. Dubas, D. Bonneau and C. Verny. Rev Neurol (Paris), 2010.
Adenine nucleotide translocase is involved in a mitochondrial coupling defect in MFN2-related Charcot-Marie-Tooth type 2A disease.V. Guillet, N. Gueguen, C. Verny, M. Ferre, C. Homedan, D. Loiseau, V. Procaccio, P. Amati-Bonneau, D. Bonneau, P. Reynier and A. Chevrollier. Neurogenetics, 2010.
Idebenone increases mitochondrial complex I activity in fibroblasts from LHON patients while producing contradictory effects on respiration.C. Angebault, N. Gueguen, V. Desquiret-Dumas, A. Chevrollier, V. Guillet, C. Verny, J. Cassereau, M. Ferre, D. Milea, P. Amati-Bonneau, D. Bonneau, V. Procaccio, P. Reynier and D. Loiseau. BMC Res Notes, 2011.
A locus-specific database for mutations in GDAP1 allows analysis of genotype-phenotype correlations in Charcot-Marie-Tooth diseases type 4A and 2K.J. Cassereau, A. Chevrollier, D. Bonneau, C. Verny, V. Procaccio, P. Reynier and M. Ferre. Orphanet J Rare Dis, 2011.
Hereditary spastic paraplegia-like disorder due to a mitochondrial ATP6 gene point mutation.C. Verny, N. Guegen, V. Desquiret, A. Chevrollier, A. Prundean, F. Dubas, J. Cassereau, M. Ferre, P. Amati-Bonneau, D. Bonneau, P. Reynier and V. Procaccio. Mitochondrion, 2011.
Standardized mitochondrial analysis gives new insights into mitochondrial dynamics and OPA1 function.A. Chevrollier, J. Cassereau, M. Ferre, J. Alban, V. Desquiret-Dumas, N. Gueguen, P. Amati-Bonneau, V. Procaccio, D. Bonneau and P. Reynier. Int J Biochem Cell Biol, 2012.
Sensorineural hearing loss in OPA1-linked disorders.S. Leruez, D. Milea, S. Defoort-Dhellemmes, E. Colin, M. Crochet, V. Procaccio, M. Ferre, J. Lamblin, V. Drouin, C. Vincent-Delorme, G. Lenaers, C. Hamel, C. Blanchet, G. Juul, M. Larsen, C. Verny, P. Reynier, P. Amati-Bonneau and D. Bonneau. Brain, 2013.
Prevalence of rare mitochondrial DNA mutations in mitochondrial disorders.S. Bannwarth, V. Procaccio, A. S. Lebre, C. Jardel, A. Chaussenot, C. Hoarau, H. Maoulida, N. Charrier, X. Gai, H. M. Xie, M. Ferre, K. Fragaki, G. Hardy, B. Mousson de Camaret, S. Marlin, C. M. Dhaenens, A. Slama, C. Rocher, J. Paul Bonnefont, A. Rotig, N. Aoutil, M. Gilleron, V. Desquiret-Dumas, P. Reynier, J. Ceresuela, L. Jonard, A. Devos, C. Espil-Taris, D. Martinez, P. Gaignard, K. H. Le Quan Sang, P. Amati-Bonneau, M. J. Falk, C. Florentz, B. Chabrol, I. Durand-Zaleski and V. Paquis-Flucklinger. J Med Genet, 2013.
Is ABCC6 a genuine mitochondrial protein?M. Ferre, P. Reynier, A. Chevrollier, D. Prunier-Mirebeau, G. Leftheriotis, D. Henrion, D. Bonneau, V. Procaccio and L. Martin. BMC Res Notes, 2013.
Resveratrol Induces a Mitochondrial Complex I Dependent Increase in NADH Oxidation Responsible for Sirtuin Activation in Liver Cells.V. Desquiret-Dumas, N. Gueguen, G. Leman, S. Baron, V. Nivet-Antoine, S. Chupin, A. Chevrollier, E. Vessieres, A. Ayer, M. Ferre, D. Bonneau, D. Henrion, P. Reynier and V. Procaccio. J Biol Chem, 2013.
Are zona pellucida genes involved in recurrent oocyte lysis observed during in vitro fertilization?M. Ferre, P. Amati-Bonneau, C. Moriniere, V. Ferre-L'hotellier, S. Lemerle, D. Przyrowski, V. Procaccio, P. Descamps, P. Reynier and P. May-Panloup. J Assist Reprod Genet, 2014.
Early-onset Behr syndrome due to compound heterozygous mutations in OPA1. D. Bonneau, E. Colin, F. Oca, M. Ferre, A. Chevrollier, N. Gueguen, V. Desquiret-Dumas, S. N'Guyen, M. Barth, X. Zanlonghi, M. Rio, I. Desguerre, C. Barnerias, M. Momtchilova, D. Rodriguez, A. Slama, G. Lenaers, V. Procaccio, P. Amati-Bonneau and P. Reynier. Brain, 2014.
Are zona pellucida genes involved in recurrent oocyte lysis observed during in vitro fertilization? M. Ferre, P. Amati-Bonneau, C. Moriniere, V. Ferre-L'Hotellier, S. Lemerle, D. Przyrowski, V. Procaccio, P. Descamps, P. Reynier and P. May-Panloup. J Assist Reprod Genet, 2014.
Improved Locus-Specific Database for OPA1 Mutations Allows Inclusion of Advanced Clinical Data. M. Ferre, A. Caignard, D. Milea, S. Leruez, J. Cassereau, A. Chevrollier, P. Amati-Bonneau, C. Verny, D. Bonneau, V. Procaccio and P. Reynier. Hum Mutat, 2015.

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Justia › US Law › US Case Law › US Supreme Court › Volume 262 › Essgee Co. v. Hanclaire Trading Corp.
1. Review of orders of the district court in special proceedings in which no jury can intervene is by appeal, and not by writ of error. P. 262 U. S. 152.
2. In view of provisions of the Act of September 6, 1916, rendering mistakes in proceeding by writ of error instead of appeal, or vice versa, immaterial from the standpoint of jurisdiction, the practice of adopting both methods through abundant caution is discouraged. Id.
3. A corporation is not protected by the Fourth and Fifth Amendments from producing its books and records before a federal grand jury engaged in investigating its conduct in relation to the federal criminal laws. P. 262 U. S. 155.
4. The lawful effect of a subpoena duces tecum addressed to a corporation is not disturbed by failure to put its officers who produce the papers on the stand. P. 262 U. S. 157.
5. A claim of irregularity in not calling such officers before the grand jury held to have been waived by their conduct. Id.
6. An officer of a corporation having custody of its books and paper cannot object to producing them upon the ground that they may disclose his own guilt. P. 262 U. S. 158.
Review of orders of the district court denying petitions for the return of books and papers produced under a subpoena duces tecum.
These are appeals and writs of error to review the action of the district court in denying petitions of the two companies, the Essgee Company of China and the Hanclaire Trading Corporation, praying that the books and papers produced by an officer of the two companies, in response to a duces tecum issued to them by order of the federal grand jury, be returned to the petitioners, on the ground that the process issued and the detention of the books by the government were and are in violation of their rights under the Fourth and Fifth Amendments to the federal Constitution.
which no jury can intervene. It likens itself in its appellate character to a review of cases in equity or in admiralty or of an order upon a writ of habeas corpus in which issues of facts are triable to the court, and in which the review may properly involve a reexamination by the reviewing court of the whole record and of the findings of the court upon both the law and the evidence therein. Since the passage of the Act of September 6, 1916, entitled an act to amend the Judicial Code (39 Stat. 726, c. 448, § 4), which provides that no court having power to review a judgment or decree passed by another shall dismiss a writ of error solely because an appeal should have been taken, or dismiss an appeal because a writ should have been sued out, but that, when such mistake of error occurs, it shall disregard the same and take the action which would be appropriate if the proper appellate procedure had been followed, the distinction is not important from the standpoint of the jurisdiction of this Court. In the interest, however, of orderly procedure, economy in time of both courts, and in the making up and printing of the record, counsel should make every effort to select the proper procedure in review and not duplicate methods out of an abundant caution which the act of 1916 makes unnecessary.
books and papers called for and produce them at the federal courthouse. The subpoena was served by the United States marshal for the District. He was accompanied by three other government officials who, it was charged, without authority, examined and took away to the courthouse other books and papers not included in the list set forth in the duces tecum. This incident was made an issue in the affidavits; but it is evident from reading the record and the admission of counsel that we are not concerned with any such records and papers, but only with those which were produced by Kramer for the two companies in response to the duces tecum. Schratter, in his affidavit and petition, claims that, under the subpoena, some papers belonging to him individually were taken, but an examination of the list of records and papers produced shows that the only personal paper produced by Kramer was the personal tax return of Schratter, which he does not assert was in any way relevant to the charges, or in any degree incriminating as to him. Kramer and Schratter brought the records and papers called for by the subpoena to a room in the courthouse and deposited them on a table, where the district attorney found them and took charge of them. Neither Schratter nor Kramer was then called before the grand jury, but they were both at once arrested upon warrants for violation of the importing laws. They testified that they did not see the district attorney when he took the records and papers, and that Kramer demanded a return of them and protested against their detention. Evidence to the contrary is offered by the government witnesses, but we do not regard the issue as material.
which had in the meantime been found against the two corporations and himself. Meantime, Kramer, after much solicitation on his part, was given an opportunity to testify to the grand jury and to present to them other records and papers which he voluntarily produced. He was not indicted. After Schratter's return and Kramer's escape from indictment, the two corporations and Schratter filed the petition, denial of which by the district court is now before us for review.
authority of the national government where the corporate activities are in the domain subject to the powers of Congress."
Hale v. Henkel, 201 U. S. 43, and Wheeler v. United States, 226 U. S. 478, are to the same point.
"But there is no unreasonable search and seizure where a writ, suitably specific and properly limited in its scope, calls for the production of documents which, as against their lawful owner to whom the writ is directed, the party procuring its issuance is entitled to have produced."
Objection is made that neither Kramer nor Schratter was called before the grand jury when they produced the books and papers in response to the duces tecum. That was not necessary. The subpoena only summoned the corporations to appear and produce the named documents and papers. There was no real ad testificandum clause in the subpoena, because a corporation could not testify. It was expressly ruled in the Wilson case that the failure to put officers of the corporation on the stand in such a case did not in any way invalidate or destroy the lawful effect of the duces tecum.
held that such conduct constituted a waiver of any irregularities in not calling these witnesses before the grand jury when the documents and papers were produced. If a waiver were needed, as we do not think it was under the Wilson case, this clearly would have been sufficient.
Schratter joined with each corporation in asking a return of the documents and papers of that corporation on the ground that they might incriminate him. But the cases of Hale v. Henkel, 201 U. S. 43; Wilson v. United States, 221 U. S. 361, and Wheeler v. United States, 226 U. S. 478, show clearly that an officer of a corporation in whose custody are its books and papers is given no right to object to the production of the corporate records because they may disclose his guilt. He does not hold them in his private capacity, and is not therefore protected against their production or against a writ requiring him as agent of the corporation to produce them.
Appellants cite the cases of Boyd v. The United States, 116 U. S. 616; Weeks v. United States, 232 U. S. 383, and Gouled v. United States, 255 U. S. 298, to support their contention that the proceedings complained of herein violate their rights under the Fourth and Fifth Amendments. Those cases were all unreasonable searches of documents and records belonging to individuals. The distinction between the cases before us and those cases lies in the more limited application of the amendments to the compulsory production of corporate documents and papers, as shown in the Henkel, Wilson, and Wheeler cases.

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NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .
HUGHES, CHAIRMAN, MARYLAND PUBLIC SERVICE COMMISION, et al. v. TALEN ENERGY MARKETING, LLC, fka PPL ENERGYPLUS, LLC, et al.
jdJungle’s One-Sentence Takeaway: Any state regulation that interferes with the national energy market is preempted by the Federal Power Act.
The Federal Power Act (FPA) vests in the Federal Energy Regulatory Commission (FERC) exclusive jurisdiction over wholesale sales of electricity in the interstate market, but “leaves to the States alone, the regulation of [retail electricity sales].” FERC v. Electric Power Supply Assn., 577 U. S. ___, ___. In Maryland and other States that have deregulated their energy markets, “load serving entities” (LSEs) purchase electricity at wholesale from independent power generators for delivery to retail consumers. Interstate wholesale transactions in deregulated markets typically occur through (1) bilateral contracting, where LSEs agree to purchase a certain amount of electricity from generators at a certain rate over a certain period of time; and (2) competitive wholesale auctions administered by Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs), nonprofit entities that manage certain segments of the electricity grid.
PJM Interconnection (PJM), an RTO overseeing a multistate grid, operates a capacity auction. The capacity auction is designed to identify need for new generation and to accommodate long-term bilateral contracts for capacity. PJM predicts demand three years into the future and assigns a share of that demand to each participating LSE. Owners of capacity to produce electricity in three years’ time then bid that capacity into the auction for sale to PJM at rates the sellers set in their bids. PJM accepts bids until it has purchased enough capacity to satisfy anticipated demand. All accepted capacity sellers receive the highest accepted rate, called the “clearing price.” LSEs then must purchase, from PJM, enough electricity to satisfy their assigned share of overall projected demand. FERC extensively regulates the structure of the capacity auction to ensure that it efficiently balances supply and demand, producing a just and reasonable clearing price.
Concerned that the PJM capacity auction was failing to encourage development of sufficient new in-state generation, Maryland enacted its own regulatory program. Maryland selected, through a proposal process, petitioner CPV Maryland, LLC (CPV), to construct a new power plant and required LSEs to enter into a 20-year pricing contract (called a contract for differences) with CPV at a rate CPV specified in its proposal. Under the terms of the contract, CPV sells its capacity to PJM through the auction, but—through mandated payments from or to LSEs—receives the contract price rather than the clearing price for these sales to PJM. In a suit filed by incumbent generators (respondents here) against members of the Maryland Public Service Commission—CPV intervened as a defendant—the District Court issued a declaratory judgment holding that Maryland’s program improperly sets the rate CPV receives for interstate wholesale capacity sales to PJM. The Fourth Circuit affirmed.
Held: Maryland’s program is preempted because it disregards the interstate wholesale rate FERC requires. A state law is preempted where “Congress has legislated comprehensively to occupy an entire field of regulation,” Northwest Central Pipeline Corp. v. State Corporation Comm’n of Kan., 489 U. S. 493 , as well as “ ‘where, under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ ” Crosby v. National Foreign Trade Council, 530 U. S. 363 . Exercising its exclusive authority over interstate wholesale sales, see 16 U. S. C. §824(b)(1), FERC has approved PJM’s capacity auction as the sole ratesetting mechanism for capacity sales to PJM, and has deemed the clearing price per se just and reasonable. However, Maryland—through the contract for differences—guarantees CPV a rate distinct from the clearing price for its interstate capacity sales to PJM. By adjusting an interstate wholesale rate, Maryland’s program contravenes the FPA’s division of authority between state and federal regulators.
That Maryland was attempting to encourage construction of new in-state generation does not save its program. States may regulate within their assigned domain even when their laws incidentally affect areas within FERC’s domain. But they may not seek to achieve ends, however legitimate, through regulatory means that intrude on FERC’s authority over interstate wholesale rates, as Maryland has done here. See Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354 ; Nantahala Power & Light Co. v. Thornburg, 476 U. S. 953 . Maryland and CPV analogize the contract for differences to traditional bilateral contracts for capacity. Unlike traditional bilateral contracts, however, the contract for differences does not transfer ownership of capacity from one party to another outside the auction. Instead, Maryland’s program operates within the auction, mandating LSEs and CPV to exchange money based on the cost of CPV’s capacity sales to PJM.
Maryland’s program is rejected only because it disregards an interstate wholesale rate required by FERC. Neither Maryland nor other States are foreclosed from encouraging production of new or clean generation through measures that do not condition payment of funds on capacity clearing the auction. Pp. 11–15.
753 F. 3d 467, affirmed.
Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Sotomayor, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in part and concurring in the judgment.
1. Together with No. 14–623, CPV Maryland, LLC v. Talen Energy Marketing, LLC, fka PPL EnergyPlus, LLC, et al., also on certiorari to the same court.


If you suffer from a non –service condition for example a stroke that is worsened by your service condition for example PTSD can you get increased benefits for the stroke as aggravation of your service connected disability?
The relevant regulation 38 C.F.R. § 3.310 was amended effective October 10, 2006. The new regulation provide that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b) (2012).
In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990).
conditions, “VA regulations at 38 C.F.R. § 3.102 . . .