Before SEASE, J., Spartanburg, August, 1930. Affirmed.
Action by Sadie Yarborough by Guardian ad litem, etc., against W.A. Yarborough. From the judgment in favor of plaintiff, defendant appeals.
Mr. Stephen Nettles, for appellant, cites: Judgment and decrees in Georgia Court in divorce suit binding on South Carolina Courts: 201 U.S. 562; 226 U.S. 551; 124 S.C. 228; 125 S.C. 89; 73 S.C. 423. As to alimony: 9 R.C.L., 482; 46 C.J., 1263; 111 S.C. 498; 114 S.C. 192; 135 S.C. 412; 28 S.E., 977; 107 S.E., 490; 150 S.E., 645; 159 S.E., 678.
Messrs. Lyles Daniel, for respondent, cite: Alimony defined: 9 R.C.L., 482; 1 R.C.L., 864; 8 L.R.A. (N.S.), 1270; 74 S.E., 308; 10 Ga. 754; 57 S.E., 1016; 1 Ga. 503. Father owes infant children duty of maintenance: 107 S.E., 704; 130 Va., 425; 83 S.E., 490; 167 N.C. 319. Guardian ad litem must be appointed for infants before judgment valid against them: 36 S.E., 354; 35 S.E., 655; 110 Ga. 349; 127 S.C. 483; 25 S.C. 275; 110 S.C. 349; 110 S.C. 253; 125 S.C. 89.
This is one of those unlovely cases in which the dissensions of parents find their worst results in the unhappiness and hardships of the children born of the unhappy union.
W.A. Yarborough and Susie Blowers were married at Spartanburg, S.C. September 3, 1904. They had one child, who is the plaintiff in this action. In 1927 Mr. and Mrs. Yarborough separated; he lived in Atlanta, Ga., and she and the child in Hendersonville, N.C. September 21, 1927, he brought suit in the Superior Court of Fulton County, Ga., seeking a total divorce from his then wife. She appeared, answered, and filed a cross-bill praying that a total divorce be granted her.
By a consent order of date November, 1927, W.A. Yarborough was required to pay to his wife, as temporary alimony, $125.00 per month, and for support of the child $75.00 per month. By an order of date February 29, 1928, this amount was reduced to $100.00 per month, and by an order of December 7, 1928, this sum was reduced to $50.00 per month for the months of December, 1928, and January, February, and March, 1929, and thereafter to be restored to $100.00 per month.
January 17, 1929, the first verdict was rendered in favor of a total divorce between the parties. On the same day Judge Pomeroy passed an order by the terms of which W. A. Yarborough was required to pay to Susie Yarborough $1,750.00 and to R.D. Blowers, as trustee for Sadie Yarborough, $1,750.00; "the same being in full settlement of temporary and permanent alimony in said case, and in full settlement of all other demands of every nature whatsoever between the parties * * *. (Italics added.) The amount to be thus received by R.D. Blowers as trustee for Sadie Yarborough, minor daughter of plaintiff and defendant, shall be expended by him in his discretion for the benefit of the minor child, including her education, support, maintenance, medical attention and other necessary items of expenditure." "Upon the compliance with this order by the plaintiff he shall be relieved of all payments of alimony and counsel fees."
By the provisions of the order the child remained in the custody of her mother, but it was directed that her father should have the right to see her at the times and under the conditions set out in the order.
The payments were made after some delay.
July 7, 1929, the second and total divorce verdict was rendered. The same day Judge Pomeroy passed an order granting to each party a total divorce with the privilege of remarrying. Two months thereafter W.A. Yarborough remarried.
August 10, 1930, Sadie Yarborough, a minor, brought this action by her guardian ad litem, against her father demanding of him the lump sum of $1,000.00 and $125.00 per month thereafter for her support and maintenance.
By his answer defendant sets up as a bar to this action the provisions of the order of the Superior Court of Fulton County in the divorce suit, by which he was required to pay to R.D. Blowers as trustee of Sadie Yarborough, plaintiff in this action, the sum of $1,750.00, as permanent alimony for her (which payment he made); he further pleaded that the matter of his liability for the support and maintenance of his daughter during minority has been finally and completely adjudicated, by the judgment of the Superior Court of Fulton County, Ga., which judgment is binding on the Courts of this State under Article 4, § 1, of the Federal Constitution; and that matter is now res adjudicata.
Further answering the defendant alleged that the Superior Court of Fulton County obtained full and exclusive jurisdiction of this plaintiff in the divorce suit between her parents, as well as the matter of his obligations to support her, and if she has any present claim against him it can only be heard in that Court, and the Court in which the action is brought is without jurisdiction to entertain the action.
Further answering the defendant alleged that he is now, and at the time of the order for the payment of the $1,750.00 for alimony was, a man of very moderate means, and that the said sum was and is reasonable provision for the maintenance and support of plaintiff.
Further answering, defendant alleges that by the terms of the order of the Georgia Court he was given the right to see his daughter at intervals; that on the occasion of his last visit she was so bitter, insulting, and disrespectful in her attitude and language, and wrote him such a painful and uncalled for letter, that in spite of his affection for her, he has not persisted in trying to see her; and he alleges that if he were otherwise liable to support her he should not be called on to do so in these circumstances.
Further answering, defendant alleges that he has remarried; that if she will enter his house as a dutiful daughter, he and his wife will welcome her, and so long as she maintains that attitude will support her to the best of his ability.
The issues thus joined were referred to the master to take the testimony; upon the report thereof the case was heard by Judge Sease. August 21, 1931, his Honor filed his decree, from which this appeal comes to us.
The defendant was a resident of the State of Georgia. Jurisdiction was obtained in the Court of Spartanburg County by the attachment of certain property in this State and Spartanburg County which defendant owned, and by serving him personally with the summons and complaint, in the County of Spartanburg.
Judge Sease found the issues made by the pleadings against the contentions of the defendant and held that the sum of $50.00 per month was a fair and just allowance to plaintiff for her education, maintenance and support. He ordered further that R.D. Blowers, plaintiff's maternal grandfather, be appointed trustee to receive and handle the moneys ordered to be paid to plaintiff, the trustee to give bond in the sum of $2,000.00. He ordered, further, that the sums of money in the hands of the Clerk of Court, and on deposit to the joint credit of the attorneys for the parties to the proceeding be paid to the trustee when he qualified, from which fund the trustee shall expend for the maintenance, support, and education of the plaintiff not exceeding $50.00 per month, unless a further order of the Court be obtained. He allowed plaintiff's attorneys a fee of $300.00 to be paid by the trustee from the funds ordered to be turned over to him.
From this decree defendant appeals by ten exceptions which charge error to the trial Judge in relation to the effect of the judgment of the Georgia Court in the divorce suit between defendant and plaintiff's mother as a bar to this action, and as rendering the issues in this case res adjudicata; error in not sustaining the plea to the jurisdiction of the South Carolina Court; error in not holding that plaintiff's conduct toward him absolved him from any obligation to support her; error in holding that the $1,750.00 paid to plaintiff under the order of the Georgia Court was entirely inadequate for the support, maintenance, and education of plaintiff; error in ordering the attached funds to be turned over to Blowers as trustee, instead of permitting defendant to furnish bond, to secure the monthly payments to plaintiff; error in holding that the case was heard by agreement of counsel without a jury.
I. "The judgment of the Georgia Court in the divorce suit is res adjudicata of the daughter's right to support from her father."
II. "Plaintiff's conduct towards her father, as well as her attitude at the trial, made it inequitable, under the circumstances of the case, to require him to provide for her further support."
Respondent's counsel have not contested the contention of appellant's counsel that the judgment of the Superior Court of Fulton County is binding upon the Courts of this State under Section 1, Article 4, of the Constitution of the United States. Therefore we confine our consideration of that judgment to an analysis of its provisions in order to determine whether that Court had jurisdiction of this plaintiff and whether its order determined and decided the issues made in the present case, and thus rendered them res adjudicata.
"§ 2981. (§ 2462.) Alimony for children on final trial. — If the jury, on the second or final verdict, find in favor of the wife, they shall also, in providing permanent alimony for her, specify what amount the minor children shall be entitled to for their permanent support; and in what manner, how often, to whom, and until when it shall be paid; and this they may also do, if, from any legal cause, the wife may not be entitled to permanent alimony, and the said children are not in the same category; and when such support shall be thus granted, the husband shall likewise not be liable to third persons for necessaries furnished the children embraced in said verdict who shall be therein specified."
"§ 2982. (§ 2463.) Judgments, how enforced. — Such orders, decrees, or verdicts, permanent or temporary, in favor of the children or family of the husband, may be enforced as those in favor of the wife exclusively."
Do the provisions of this Georgia Code give a Georgia Court jurisdiction of a resident of South Carolina, an infant, to determine her rights, in an action to which she was not a formal party? If it should be held that the Georgia Court had such jurisdiction, have the provisions of the quoted section of the Code been so complied with as to make the judgment of the Georgia Court binding upon this plaintiff and decisive of her rights? The mother of the plaintiff of this action submitted herself to the jurisdiction of the Georgia Court when she appeared and pleaded to the action brought by her husband for divorce. In her plea she demanded temporary and permanent alimony for herself and support for the minor child. She consented to the granting of her $1,750.00, and to the child's $1,750.00, which the order declares is for temporary and permanent alimony and in lieu of all other demands. The minor child, resident in another state, could not consent to such an order — even if she had had the power and the opportunity to do so. The Courts of this State are so exceedingly mindful and jealous of the rights of minors that it does not need the citation of authorities to support the assumption that such an order, made under such conditions, would not be allowed to dispose of this child's rights. Nor do we think that the doctrine of comity between states requires any such stretch of legal procedure.
But if it should be thought to be otherwise, still the order of the Georgia Court is ineffective to bar this action in this State because it does not conform to the provisions of the Code, above quoted, which specifically prescribe the method by which, in a suit for divorce, permanent alimony for the wife and permanent support for the minor children shall be fixed, viz., by the final verdict of the jury. The first verdict of the jury made no mention of alimony for the wife, nor of support for the child. The second verdict, rendered June 27, 1929, likewise was silent on the subject of alimony and support. It will be seen that the power of the Court in a divorce suit to make provision for the support of minor children derives from the finding of the jury on the second verdict of the amount which the minor children shall be entitled to for their permanent support. In this case, six months before the rendering of the second verdict in which no amount was fixed for the permanent support of the minor child (the plaintiff herein), the Court passed a consent order, in a proceeding to which plaintiff was not a party, was not represented, to which she could not consent, which undertook to decide her rights and fix a sum to be paid her.
Did the Superior Court of Fulton County have this power? We quote from the case of Pace v. Bergquist, 173 Ga., 112, 159 S.E., 678, because it is in striking analogy with the case under our consideration. The opinion was by the Supreme Court of Georgia.
"The effect of the judgment granting temporary alimony to the mother for the child, in stated monthly payments `until further order of the Court,' when construed in connection with Civil Code 1910, § 2978, was that the payments should continue, under the supervisory power of the Court to modify or revoke the same [italics added], until final judgment, when the payments would cease by operation of law. Holleman v. Holleman, 69 Ga. 676; Osborne v. Osborne, 146 Ga. 344, 91 S.E., 61; Black v. Black, 150 Ga. 672, 104 S.E., 775."
We may here interpolate that the consent order in the case between Yarborough and his wife was a temporary one as shown by the fact that it was modified and changed three separate times.
The judgment of the appellate Court was in these words: "The orders adjudging the father in contempt for failure to pay the temporary alimony awarded by the order of December 13, 1923, passed after the rendition of the final decree, did not have the effect of continuing in force the original order of December 13, 1923, for the reason that the Court was without jurisdiction of the subject-matter when the subsequent orders were passed."
The order of the lower Court overruling the demurrer and adjudging the defendant in contempt was reversed.
In the case of Gilbert v. Gilbert, 151 Ga. 520, 107 S.E., 490, 492, the Supreme Court of Georgia said, after quoting Section 2981: "Thus it will be seen that it is the duty of the jury to fix the amount of the alimony and the amount the minor children shall be entitled to for their permanent support. See, in this connection, Gholston v. Gholston, 54 Ga. 285, and Odom v. Odom, 36 Ga. 286. The statutes clearly contemplate that the jury shall fix the amount of alimony and the allowance for the support of the minor children, and we find no provision authorizing the Judge to change or alter this amount."
It would seem to follow that the Judge in this present case had no authority, in advance of the rendering of the second verdict, to fix permanent alimony and make a permanent provision for the support of the minor child. We are satisfied that the order of the Georgia Court does not conform to the requirements of the Georgia Code, and is ineffective to bind this plaintiff.
If it were conceded that the judgment is a valid one, would it be res adjudicata of the issues in the present case? What are the essential elements of the doctrine of res adjudicata? Nowhere are they more clearly and succinctly stated than by Mr. Justice Cothran in the case of Johnston-Crews v. Folk et al., 118 S.C. 478, 111 S.E., 15, 17: "The following have been declared to be the essential elements of res adjudicata: (1) Identity of the parties; (2) identity of the subject-matter; (3) and adjudication in the former suit of the precise question sought to be raised in the second suit."
The parties to the first suit were W.A. Yarborough and Susie B. Yarborough; the plaintiff in this action was not a party thereto. The consent order upon which the defendant now stands was never consented to by her, nor was she, being a minor, competent to consent to it. No guardian ad litem was appointed to represent her interests in the case. The subject-matter of that action was the divorce of W.A. Yarborough and Susie B. Yarborough; the questions of alimony and support of the minor were incidental matters, not necessarily included in the suit. He brought the action. She answered, praying for total divorce and temporary and permanent alimony for the support of herself and the minor child (plaintiff in this action).
The verdict shows that the order upon which this defendant relies, which was a consent order, undertook to fix a lump sum for the support of the minor child as permanent support, maintenance, and education. But the record shows that such question was not passed on by the last verdict of the jury, and no sum fixed by it. The authorities from the Georgia Courts hereinabove cited show that the order had only the effect of granting temporary alimony pending the final determination of the suit for divorce, and does not decide the question of permanent support.
This present action is between Sadie Yarborough and W.A. Yarborough; the subject-matter is the support, maintenance, and education of defendant's minor daughter. This precise question was not adjudicated in the former action.
It is manifest that the essential elements of res adjudicata are lacking here.
II. Appellant urges that the conduct of his daughter has been so rude, disrespectful, and unkind that he ought not to be called on, in the circumstances of this case, to provide further for her support, maintenance, and education. He proclaims his affection for her, and his willingness to support her if she will come and live with him and his present wife in their home in Atlanta — and deport herself as a dutiful daughter should. We can find nothing in the record that shows such reprehensible conduct on the part of the daughter towards her father as would deprive her of the right to support and maintenance by him. The letter written to him by her when she was thirteen years old, and learned that he had brought action against her mother for divorce, was the natural ebullition of the resentment of a child. Her attitude when he came to see her at the school may have lacked cordiality, but it was not rude. Her stand and statement at the trial may well be explained and condoned when it is considered that within two months after the divorce from her mother, her father had married again; that she believed that her father had sought the separation in order that he might "run around with other women"; that he had abandoned her and thereby forced her to bring this action.
Save for his statement at the trial there is no evidence that appellant has made any serious and sincere efforts to have his daughter live with him and his present wife. Certain it is that the wife has not invited her stepdaughter to live in the home with her and her husband.
In the case of Shaw v. Shaw, 122 S.C. 390, 115 S.E., 322, 323, this is said: "The next assignment of error is that his Honor held that the appellant is liable for the support of his wife and children. * * * When this Court has found that the appellant has practically expelled his wife from his home, it follows that he must furnish support when they find refuge."
The daughter has not forfeited her right to support because she does not live with her father under the conditions shown by the evidence.
"A father is bound to maintain his infant children from his own estate, however ample may be their separate resources." Exchange Banking Trust Company v. Finley, 73 S.C. 429, 53 S.E., 649, 651.
It would be an idle thing to quote authorities in support of the proposition that a father is legally bound to support his minor child.
We have seen that the provision made by the Georgia Court was only for her temporary support. It follows that the respondent in this case is entitled to maintain this action for permanent support, maintenance and education.
It does not appear that the question that defendant be allowed to give bond for his compliance with the order of Court, in the place of impounding the money which had been attached, was ever presented to the Circuit Court. The exception relating to it has not been presented in argument, and, hence, is not considered. Exception 5 has been abandoned. Exception 10 was not urged. The other exceptions have been considered in the views herein expressed.
The judgment of the Court is that all exceptions are overruled, and the judgment of the Court below is affirmed.
MR. CHIEF JUSTICE BLEASE, and MESSRS. JUSTICES STABLER and CARTER, and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.
The earnest and strong appeal for rehearing made in this case, and certain unusual features of the case, entitle the petition for rehearing to especially careful consideration.
The burden of the argument in behalf of the petition is that the opinion of this Court is in direct opposition to the decisions of the Supreme Court of Georgia, and of the Supreme Court of this state in the case of Exchange Banking Trust Co. v. Finley, 73 S.C. 423, 53 S.E., 649, 651.
It is essential to bear in mind that Sadie Yarborough, an infant, not a resident of Georgia, was never personally within the jurisdiction of the Superior Court of Fulton County, Ga. She was never a party to the suit for divorce brought by W.A. Yarborough, her father, against his wife, Susie B. Yarborough, Sadie's mother; she was never served with any process in that case, nor was she ever represented therein by guardian ad litem. The decisions of the Georgia Courts upon which appellant relies are cases in which all of the parties, parents and children, were citizens of the State of Georgia for whose benefit and protection the Georgia statutes applicable in divorce proceedings were made. Susie B. Yarborough and Sadie Yarborough were residents of South Carolina. If Susie B. Yarborough, an adult, chose to submit herself to the jurisdiction of the Georgia Court, that action did not and could not of itself submit Sadie Yarborough, also a resident of South Carolina, to that jurisdiction.
The counsel for appellant in his argument on the petition for rehearing relies strongly upon the case of Exchange Banking Trust Co. v. Finley, supra. It is true that that case does hold: "While it is true that the judgment in the divorce proceedings absolved him from all legal obligation to maintain her [his infant daughter], nevertheless," etc. But it is the plain inference from the record in that case that the infant child was, at the time of the granting of the divorce, with her mother in Chicago, and within the jurisdiction of the Court which granted the divorce. It may not be amiss to say that in the Finley case the Supreme Court said that the father was still "under a moral duty to render her assistance, which was not lessened by those proceedings [divorce]. Indeed, when it was adjudged in a proceeding to which he was a party that he was no longer liable for her support, the moral obligation became greater, for the reason that he took part in depriving her of legal rights."
Acceding to the proposition that the state, in proper circumstances, must give full faith and credit to the judgments of other states of the Union, it does not follow that such judgments may not be attacked collaterally for the purpose of showing that the foreign Court did not have jurisdiction of the person whose rights are affected by the judgment.
"A citizen of this State married a woman of New York in that State, and forthwith brought her with him, to his South Carolina home, where they lived together as man and wife for a few years, when the wife left him and took up her residence in the State of Illinois, and there in time obtained a * * * divorce from the proper Court in Illinois, * * * the husband being * * * in South Carolina, and served only by publication, and not appearing in the action. Held, that this judgment of the Court of Illinois would not be recognized in the Courts of South Carolina, where divorces are not allowed for any cause, and that the Constitution of the United States, and the act of Congress in pursuance thereof, do not require such recognition, as the Court in Illinois never acquired jurisdiction of the person of the husband." McCreery v. Davis, 44 S.C. 195, 22 S.E., 178, 28 L.R.A., 655, 51 Am. St. Rep., 794.
"Neither the constitutional provision, that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State, or the act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the Courts by which a judgment offered in evidence was rendered. The record of a judgment rendered in another State may be contradicted as to the facts necessary to give the Court jurisdiction; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist." Thompson v. Whitman, 18 Wall., 457, 21 L.Ed., 897.
"On this point the Circuit Judge charged the jury, if the defendant was a resident of the State of Georgia at the time the divorce proceedings were carried through the Georgia Court, then the decree of divorce must be recognized in this state as a complete protection to him against the charge of adultery; but if he went to Georgia for a mere temporary purpose, with no intention to become a resident, then the Georgia Court was without jurisdiction, and its decree would be a nullity," etc. State v. Westmoreland, 76 S.C. 145, 148, 56 S.E., 673, 8 L.R.A. (N.S.), 842.
In the matter of the succession of Benton, 106 La., 494, 31 So., 123, 125, 59 L.R.A., 135, it is held: That a divorce granted by a Court of competent jurisdiction of another state which did not on its face disclose any intrinsic nullity was "subject to attack only upon proof of extrinsic facts undermining the jurisdiction." Citing Smith v. Smith, 43 La. Ann., 1140, 10 So., 248.
It is manifest that the judgment of a foreign Court is not binding in this State under the full faith and credit clause of the Constitution and acts of Congress, where the Court of the foreign state had not acquired jurisdiction of the person whose rights are sought to be affected by the judgment. It is certain that the superior Court of Fulton County of the State of Georgia, while acquiring jurisdiction of W.A. Yarborough and Susie B. Yarborough, never acquired jurisdiction of the person of the infant, Sadie Yarborough, in the suit for divorce between the parents. As to her that judgment is a nullity, and does not render the issues in this present action between her and her father in the Court of Common Pleas for Spartanburg County, in the State of South Carolina, res adjudicata.
It seems to us an untenable proposition that the rights of infants, residents in one state, may be disposed of by a suit between the parents in another state, to which suit the infants are not parties, were not represented by guardian ad litem, were never served in any way with process, and were never found within the jurisdiction of the foreign Court; and that the judgment of the foreign Court in the case between the parents precludes the infant from bringing an action against one or the other of the parents in the Courts of the state of the infant's residence, because the issues are rendered res adjudicata by the judgment of the foreign Court in the suit between the parents.
We cannot accede to such a doctrine.
The petition for rehearing is denied, and the order staying the remittitur is revoked.
MR. CHIEF JUSTICE BLEASE, and MESSRS. JUSTICES STABLER and CARTER concur.
A more careful study of this case convinces me that the petition for a rehearing should be granted. I do not wish to delay longer the final disposition of the case and regret that I have not had an opportunity to elaborate my reasons.


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Communication No 1128/2002 : Angola. 18/04/2005.
1. The author of the communication is Rafael Marques de Morais, an Angolan citizen, born on 31 August 1971. He claims to be a victim of violations by Angola (1) of articles 9, 12, 14 and 19 of the International Covenant on Civil and Political Rights (the Covenant). The author is represented by counsel.
2.1 On 3 July, 28 August and 13 October 1999, the author, a journalist and the representative of the Open Society Institute in Angola, wrote several articles critical of Angolan President dos Santos in an independent Angolan newspaper, the Agora. In these articles, he stated, inter alia, that the President was responsible "for the destruction of the country and the calamitous situation of State institutions" and was "accountable for the promotion of incompetence, embezzlement and corruption as political and social values."
2.2 On 13 October 1999, the author was summoned before an investigator at the National Criminal Investigation Division (DNIC) and questioned for approximately three hours before being released. In an interview later that day with the Catholic radio station, Radio Ecclésia, the author reiterated his criticism of the President and described his treatment by the DNIC.
2.3 On 16 October 1999, the author was arrested at gunpoint by 20 armed members of the Rapid Intervention Police and DNIC officers at his home in Luanda, without being informed about the reasons for his arrest. He was brought to the Operational Police Unit, where he was held for seven hours and questioned before being handed over to DNIC investigators, who questioned him for five hours. He was then formally arrested, though not charged, by the deputy public prosecutor of DNIC.
2.4 From 16 to 26 October 1999, the author was held incommunicado at the high security Central Forensic Laboratory (CFL) in Luanda, where he was denied access to his lawyer and family and was intimidated by prison officials, who asked him to sign documents disclaiming responsibility of the CFL or the Angolan Government for eventual death or any injuries sustained by him during detention, which he refused to do. He was not informed of the reasons for his arrest. On arrival at the CFL, the chief investigator merely stated that he was being held as a UNITA (National Union for the Total Independence of Angola) prisoner.
2.5 On or about 29 October 1999, the author was transferred to Viana prison in Luanda and granted access to his lawyer. On the same day, his lawyer filed an application for habeas corpus with the Supreme Court, challenging the lawfulness of the author's arrest and detention, which was neither acknowledged, nor assigned to a judge or heard by the Angolan courts.
2.6 On 25 November 1999, the author was released from prison on bail and informed of the charges against him for the first time. Together with the director, A. S., and the chief editor, A. J. F., of Agora, he was charged with "materially and continuously committ[ing] the crimes characteristic of defamation and slander against His Excellency the President of the Republic and the Attorney General of the Republic…by arts. 44, 46 all of Law no 22/91 of June 15 (the Press Law) with aggravating circumstances 1, 2, 10, 20, 21 and 25, all of articles 34 of the Penal Code." The terms of bail obliged the author "not to leave the country" and "not to engage in certain activities that are punishable by the offence committed and that create the risk that new violations may be perpetrated – Art 270 of the Penal Code". Several requests by the author for clarification of these terms were unsuccessful.
2.7 The author's trial began on 21 March 2000. After thirty minutes, the judge ordered the proceedings to continue in camera, since a journalist had tried to photograph the proceedings.
2.8 By reference to article 46 (2) of Press Law No. 22/91 of June 15 1991, the Provincial Court ruled that evidence presented by the author to support his defence of the 'truth' of the allegations and the good faith basis upon which they were made, including the texts of speeches of the President, Government resolutions and statements of foreign State officials, was inadmissible. In protest, the author's lawyer left the courtroom, stating that he could not represent his client in such circumstances. When he returned to the courtroom on 25 March, the trial judge prevented him from resuming his representation of the author and ordered that he be disbarred from practising as a lawyer in Angola for a period of six months. The Court then appointed as ex officio defence counsel an official of the General Attorney's Office working at the Provincial Court's labour tribunal, who allegedly was not qualified to practise as a lawyer.
2.9 On 28 March 2000, a witness testifying on behalf of the author was ordered to leave the court and to stop his testimony after asserting that the law under which the author had been charged had was unconstitutional. The Court also refused to allow the author to call two other defence witnesses, without giving reasons.
2.10 On 31 March 2000, the Provincial Court convicted the author of abuse of the press (3) by defamation, (4) finding that his newspaper article of 3 July 1999, as well as the radio interview, contained "offensive words and expressions" against the Angolan President and, albeit not raised by the accusation and therefore not punishable, against the Attorney-General in their official and personal capacities. The Court found that the author had "acted with intention to injure" and based the conviction on the combined effect of articles 43, 44, 45 and 46 of Press Law No. 22/91, aggravated by item 1 of article 34 of the Penal Code (premeditation). It sentenced the author to six months' imprisonment and a fine of 1,000,000.00 Kwanzas (Nkz.) to "discourage" similar behaviour, at the same time ordering the payment of NKz. 100,000.00 compensatory damages to "the offended" and of a court tax of NKz. 20,000.00.
2.12 On 26 October 2000, the Supreme Court quashed the trial court's judgment on the defamation count, but upheld the conviction for abuse of the press on the basis of injury (6) to the President, punishable by item No. 3 of article 45, (7) of Press Law No. 22/91. The Court considered that the author's acts were not covered by his constitutional right to freedom of speech, since the exercise of that right was limited by other constitutionally recognized rights, such as one's honour and reputation, or by "the respect that is due to the organs of sovereignty and to the symbols of the state, in this case the President of the Republic." It affirmed the prison term of six-month, but suspended its application for a period of five years, and ordered the author to pay a court tax of NKz. 20,000.00 and NKz. 30,000.00 damages to the victim. The judgment did not refer to the pre-existing bail conditions imposed on the author.
2.13 On 11 November 2000, the author unsuccessfully sought to obtain a declaration confirming that his bail restrictions were no longer applicable.
2.14 On 12 December 2000, the author was prevented from leaving Angola for South Africa to participate in an Open Society Institute conference; his passport was confiscated. Despite repeated requests, his passport was not returned to him until 8 February 2001, following a court order of 2 February 2001 based on Amnesty Law 7/00 of 15 December 2000, (8) which was declared applicable to the author's case. Regardless of this amnesty, on 19 January 2002, the author was summoned to the Provincial Court and ordered to pay compensation of Nkz. 30,000 to the President, which he refused to pay, and legal costs, for which he paid.
3.2 The author claims a violation of article 9, paragraph 2, as he was arrested without being informed of the reasons for his arrest or the charges against him. His 10-day incommunicado detention, (10) without access to his lawyer or family, the denial of his constitutional (11) right to be brought before a judge during the entire 40 days of his detention, and the authorities' failure to release him promptly pending trial, despite the absence of a risk of flight (as reflected by his cooperative attitude, e.g. when he reported to the DNIC on 13 October 1999), violated his rights under article 9, paragraph 3. The fact that he was prevented from challenging the lawfulness of his detention while detained incommunicado also violated article 9, paragraph 4, as did the Angolan courts' failure to address his habeas corpus application. Under article 9, paragraph 5, the author claims compensation for his unlawful arrest and detention.
3.4 The fact that the author did not receive the formal charges against him until 40 days after his arrest is said to violate his right under article 14, paragraph 3 (a), to be informed promptly of the nature and cause of the charge against him. He argues that this delay was not justified by the complexity of the case. Moreover, his conviction of more serious crimes (articles 43 and 45 of the Press Law) than the ones for which he was originally charged (articles 44 and 46 of the Press Law) breached his right to adequate facilities for the preparation of his defence (article 14, paragraph 3 (b), of the Covenant). His conviction on these additional charges should have been quashed by the Supreme Court, which instead held that a Provincial Court "may sentence a defendant for an infraction different from the one that he was accused of, even if it is more serious, provided that the grounds are facts included in the indictment or similar ruling."
3.5 The author claims that his right under article 14, paragraph 3 (b), to communicate with counsel was violated, as he could not consult his lawyer during incommunicado detention, at a critical state of the proceedings, and because the trial judge did not adjourn the trial upon disbarring the author's lawyer and appointing an ex officio defence counsel on 23 March 2000, thereby denying him adequate time to communicate with his new counsel. His right to defend himself through legal assistance of his own choosing (article 14, paragraph 3(d)) was breached because his lawyer was unlawfully removed from the case, as confirmed by the Supreme Court's judgment of 26 October 2000. He claims that, despite his willingness to pay for a counsel of his own choosing, a new counsel was appointed ex officio, who was neither qualified nor competent to provide adequate defence, limiting his interventions during the remainder of the trial to requesting the Court to "do justice" and to an expression of satisfaction with the proceedings.
3.6 For the author, the judge's decision to hear only one defence witness, a human rights activist who was expelled from court after claiming that article 46 of the Press Law was unconstitutional, and to reject documentary evidence of the truth of the author's statements, and the good faith basis on which they had been made, on the ground that article 46 of the Press Law precluded the presentation of evidence against the President, violated his rights under article 14, paragraph 3 (e), and denied him an opportunity to produce evidence on whether or not all the elements of the offence had been met, in particular whether he had acted with the intention of offending the President.
3.7 The author claims a violation of article 14, paragraph 5, because of the Supreme Court's lack of impartiality when it publicly criticized the Bar Association while his appeal was still pending, as well as by the lack of clarity as to the exact legal basis of his conviction, which prevented him from lodging a "meaningful" appeal.
3.8 The author contends that his critical statements about President dos Santos were covered by his right to freedom of expression under article 19, which requires that citizens be allowed to criticize or openly and publicly evaluate their Governments, as well as the ability of the press to express political opinion, including criticism of those who wield political power. His unlawful arrest and detention on the basis of his statements, the restrictions on his rights to free speech and movement pending trial, his conviction and sentence, and the threat that any expression of opinion may be punished by similar sanctions in the future constituted restrictions on his freedom of speech. He argues that these restrictions were not "provided by law" within the meaning of article 19, paragraph 3, given (a) that his unlawful detention and subsequent travel restrictions had no basis in Angolan law; (b) that his conviction was based on provisions such as article 43 of the Press Law ("abuse of the press") and article 410 of the Criminal Code ("injury"), which lacked the necessary clarity to qualify as "adequately accessible" and "sufficiently precise" norms, enabling an individual to foresee the consequences that his statements may entail; and (c) that the terms of his bail prohibiting him to "engage in certain activities that […] create the risk that new violations may be perpetrated" were equally unclear and that he had unsuccessfully requested clarification of the meaning of this restrictions.
3.9 The author denies that the restrictions imposed on him pursued a legitimate aim under article 19, paragraph 3 (a) and (b). In particular, respect of the rights or reputation of others (lit. a) could not be interpreted so as to protect a President from political, as opposed to personal, criticism, given that the aim of the Covenant is to promote political debate. Nor were the measures against him necessary or proportionate to achieve a legitimate purpose, considering (a) that the limits of acceptable criticism are wider regarding politicians as opposed to private individuals, who do not enjoy comparable access to effective channels of communication to counteract false statements; (b) that he was convicted for his statements without having had an opportunity to defend the factual basis of these statements or to establish the good faith basis on which they were made; and (c) that the use of criminal rather than civil penalties against him, in any event, constitutes a disproportionate means of protecting the reputation of others.
3.10 Lastly, the author claims a violation of article 12, which includes a right to obtain the necessary travel documents for leaving one's country. His prevention from leaving Angola on 12 December 2000 and the confiscation, without any justification, of his passport, which was withheld until February 2001, despite his repeated attempts to recover it and to clarify his legal entitlement to travel, had no legal basis, as the bail restrictions no longer applied and since the Supreme Court's judgment did not include any penalty inhibiting free movement. He contends that, in addition to article 12, these measures also violated his freedom of expression by precluding his participation in the conference organized by the Open Society Institute in South Africa.
3.11 The author claims that he same matter is not being examined under another procedure of international investigation or settlement and that he has exhausted domestic remedies, as he unsuccessfully tried to initiate habeas corpus proceedings to challenge the lawfulness of his arrest and detention and also appealed his conviction and sentence to the Supreme Court, the highest judicial authority in Angola.
3.12 The author seeks compensation for the alleged violations and requests the Committee to recommend that his conviction be quashed, that the State party clarify that there are no impediments to his freedom of movement, and that articles 45 and 46 of the Press Law be repealed.
4. On 15 November 2002, 15 December 2003, 26 January 2004 and 23 July 2004, the State party was requested to submit to the Committee information on the admissibility and merits of the communication. The Committee notes that this information has still not been received. The Committee regrets the State party's failure to provide any information with regard to the admissibility or the substance of the author's claims. It recalls that it is implicit in article 4, paragraph 2, of the Optional Protocol that States parties examine in good faith all the allegations brought against them, and that they make available to the Committee all information at their disposal. In the absence of a reply from the State party, due weight must be given to the author's allegations, to the extent that they are substantiated.
5.2 The Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement for the purposes of article 5, paragraph 2 (a), of the Optional Protocol.
5.3 With regard to the author's allegation that the press and the public were excluded from his trial, in violation of article 14, paragraph 1, the Committee notes that the author did not raise this issue before the Supreme Court. It follows that this part of the communication is inadmissible under articles 2 and 5, paragraph 2 (b), of the Optional Protocol.
5.4 Insofar as the author claims that he was not apprised of the formal charges against him until 40 days after his arrest, the Committee recalls that article 14, paragraph 3 (a), of the Covenant does not apply to the period of remand in custody pending the result of police investigations, (13) but requires that an individual be informed promptly and in detail of the charge against him, as soon as the charge is first made by a competent authority. Although the author was formally charged on 25 November 1999, that is, one week after the indictment had been "approved" by the prosecution, he did not raise this delay on appeal. The Committee therefore concludes that this part of the communication is inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.
5.5 As to the claim that the conviction of more serious crimes than the ones charged by the prosecution violated the author's right under article 14, paragraph 3 (b), the Committee has noted the argument, in the Supreme Court's judgement of 26 October 2000, that a judge may convict a defendant of a more serious offence than the one that he was accused of, as long as the conviction is based on the facts described in the indictment. It recalls that it is generally for the national courts, and not for the Committee, to evaluate the facts and evidence in a particular case, or to review the interpretation of domestic legislation, unless it is apparent that the courts' decisions are manifestly arbitrary or amount to a denial of justice. The Committee considers that the author has not adequately substantiated that there was any absence of fair notice of the charges confronting him, nor has he otherwise substantiated any defects in relation to the Supreme Court's finding that a judge is not bound by the prosecution's legal evaluation of the facts as included in the indictment. Accordingly, this part of the communication is inadmissible under article 2 of the Optional Protocol.
5.6 As regards the author's claim that article 14, paragraph 3 (b), was also violated because the trial judge did not adjourn the trial after having replaced his lawyer by an ex officio counsel, thereby denying him adequate time to consult with his new counsel to prepare his defence, the Committee notes that the material before it does not reveal that the author, or his new counsel, requested an adjournment on grounds of insufficient time to prepare the defence. If counsel felt that they were not properly prepared, it was incumbent on him to request the adjournment of the trial. (14) In this respect, the Committee refers to its jurisprudence that a State party cannot be held responsible for the conduct of a defence lawyer, unless it was, or should have been, manifest to the judge that the lawyer's behaviour was incompatible with the interests of justice. (15) It considers that the author has not substantiated, for purposes of admissibility, that failure to adjourn the trial was manifestly incompatible with the interests of justice. Accordingly, this part of the communication is inadmissible under article 2 of the Optional Protocol.
5.7 As to the author's claim that his right to defend himself through legal assistance of his own choosing (article 14, paragraph 3 (d)) was breached, the Committee notes that the Supreme Court, while annulling the temporary suspension of the author's lawyer, did not pronounce itself on the legality of the lawyer's removal from the trial. On the contrary, it held that the abandonment of a client by a lawyer, outside situations specifically allowed by law, was subject to disciplinary sanctions under applicable regulations. In its public notice, the Supreme Court, instead of defending the judge's decision to debar the author's lawyer, expressed its concern about the effects of the Bar Associations criticism (causing "an unjustly suspicious climate […] discrediting [the judiciary] both domestically and abroad"), while emphasizing that the trial judge's decision "may be cured by a higher court in the legal process." The Supreme Court subsequently declared the author's lawyer's six-month suspension null and void. Similarly, it does not transpire from the trial transcript that counsel was appointed against the author's will or that he limited his interventions during the remainder of the trial to redundant pleadings. According to the transcript, the author, when asked whether he intended to designate a new legal representative, declared that he would leave such decision to the Court. The Committee concludes that the author has not substantiated, for purposes of admissibility, that the removal of his lawyer from the trial was unlawful or arbitrary, that counsel was appointed against the author's will, or that he was unqualified to provide effective legal representation. Accordingly, this part of the communication is inadmissible under article 2 of the Optional Protocol.
5.8 With respect to the alleged violation of article 14, paragraph 3 (e), by the trial judge's decision to admit only one defence witness, who was expelled from the court after criticizing Article 46 of the Press Law as unconstitutional, the Committee notes that it does not transpire from the Supreme Court's judgment of 26 October 2000, or from any other document at its disposal, that the author raised this claim on appeal. Consequently, this part of the communication is inadmissible under article 5, paragraph 2 (b), of the Optional Protocol for failure to exhaust domestic remedies.
5.9 While noting that the author based his appeal, inter alia, on the fact that the trial judge had rejected the documentary evidence presented by him in defence of the truth of his statements, the Committee notes that it is in principle beyond its competence to determine whether national courts properly evaluate the admissibility of evidence, unless it is apparent that their decision is manifestly arbitrary or amounts to a denial of justice. In the instant case, the Committee notes that the Provincial Court and, in particular, the Supreme Court examined whether the Press Law lawfully precludes the defence of the truth in relation to statements concerning the Angolan President, and it finds no evidence that their findings suffered from the above defects. It therefore considers that the author has not substantiated this part of his claim under article 14, paragraph 3 (e), for purposes of admissibility, and concludes that this part of the communication is inadmissible under article 2 of the Optional Protocol.
5.10 As regards the author's claim that his right under article 14, paragraph 5, was violated because of the lack of clarity about the legal basis for his conviction by the Provincial Court, and because the Supreme Court's impartiality was undermined by its public notice of 7 April 2000, the Committee observes that the crime of which the author was convicted (abuse of the press by defamation) is described with sufficient clarity in the Provincial Court's judgment. The Committee therefore concludes that the author has not sufficiently substantiated his claim, for purposes of admissibility, and that this part of the communication is inadmissible under article 2 of the Optional Protocol.
5.11 As to the remainder of the communication, the Committee considers that the author has sufficiently substantiated his claims for purposes of admissibility.
5.12 On the issue of exhaustion of domestic remedies, the Committee notes that the author raised the substance of his claims under article 9 in his application for habeas corpus, which, according to him, was never adjudicated by the Angolan courts. As regards the author's claim under article 19 of the Covenant, the Committee notes that he invoked "the right of political and social criticism and of the freedom of the press" on appeal. It furthermore notes the author's claim (in relation to article 12 of the Covenant) that he "took repeated legal measures to recover his passport and [to] clarify, legally, his entitlement to travel but was hampered by complete lack of access to information regarding his travel documents," and observes that, in the circumstances, no domestic remedies were available to the author.
5.13 In the absence of any information from the State party to the contrary, the Committee concludes that the author has met the requirements of article 5, paragraph 2 (b), of the Optional Protocol, and that the communication is admissible, insofar as it appears to raise issues under articles 9, paragraphs 1 to 5, 12, 14, paragraph 3(b) (inasmuch as author's inability to have access to counsel during his incommunicado detention is concerned), and 19 of the Covenant.
6.1 The first issue before the Committee is whether the author's arrest on 16 October 1999 and his subsequent detention until 25 November 1999 were arbitrary or otherwise in violation of article 9 of the Covenant. In accordance with the Committee's constant jurisprudence, (16) the notion of "arbitrariness" is not to be equated with "against the law", but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law. This means that remand in custody must not only be lawful but reasonable and necessary in all the circumstances, for example to prevent flight, interference with evidence or the recurrence of crime. No such element has been invoked in the instant case. Irrespective of the applicable rules of criminal procedure, the Committee observes that the author was arrested on, albeit undisclosed, charges of defamation which, although qualifying as a crime under Angolan law, does not justify his arrest at gunpoint by 20 armed policemen, nor the length of his detention of 40 days, including 10 days of incommunicado detention. The Committee concludes that in the circumstances, the author's arrest and detention were neither reasonable nor necessary but, at least in part, of a punitive character and thus arbitrary, in violation of article 9, paragraph 1.
6.2 The Committee notes the author's uncontested claim that he was not informed of the reasons for his arrest and that he was charged only on 25 November 1999, 40 days after his arrest on 16 October 1999. It considers that the chief investigator's statement, on 16 October 1999, that the author was held as a UNITA prisoner, did not meet the requirements of article 9, paragraph 2. In the circumstances, the Committee concludes that there has been a violation of article 9, paragraph 2.
6.3 As regards the author's claim that he was not brought before a judge during the 40 days of detention, the Committee recalls that the right to be brought "promptly" before a judicial authority implies that delays must not exceed a few days, and that incommunicado detention as such may violate article 9, paragraph 3. (17) It takes note of the author's argument that his 10-day incommunicado detention, without access to a lawyer, adversely affected his right to be brought before a judge, and concludes that the facts before it disclose a violation of article 9, paragraph 3. In view of this finding, the Committee need not pronounce itself on the alleged violation of article 14, paragraph 3(b).
6.4 As to the author's claim that, rather than being detained in custody for 40 days, he should have been released pending trial, in the absence of a risk of flight, the Committee notes that the author was not charged until 25 November 1999, when he was also released from custody. He was therefore not "awaiting" trial within the meaning of article 9, paragraph 3, before that date. Moreover, he was not brought before a judicial authority before that date, which could have determined whether there was a lawful reason to extend his detention. The Committee therefore considers that the illegality of the author's 40-day detention, without access to a judge, is subsumed by the violations of article 9, paragraphs 1 and 3, first sentence, and that no issue of prolonged pre-trial detention arises under article 9, paragraph 3, second sentence.
6.5 As regards the alleged violation of article 9, paragraph 4, the Committee recalls that the author had no access to counsel during his incommunicado detention, which prevented him from challenging the lawfulness of his detention during that period. Even though his lawyer subsequently, on 29 October 1999, applied for habeas corpus to the Supreme Court, this application was never adjudicated. In the absence of any information from the State party, the Committee finds that the author's right to judicial review of the lawfulness of his detention (article 9, paragraph 4) has been violated.
6.6 With respect to the author's claim under article 9, paragraph 5, the Committee recalls that this provision governs the granting of compensation for arrest or detention that is "unlawful" either under domestic law or within the meaning of the Covenant. (18) It recalls that the circumstances of the author's arrest and detention gave rise to violations of article 9, paragraphs 1 to 4, of the Covenant, and notes the author's uncontested argument that the State party's failure to bring him before a judge during his 40-day detention also violated article 38 of the Angolan Constitution. Against this background, the Committee deems it appropriate to deal with the issue of compensation in the remedial paragraph.
6.8 The Committee refers to its jurisprudence that any restriction on the right to freedom of expression must cumulatively meet the following conditions set out in paragraph 3 of article 19: it must be provided for by law, it must serve one of the aims enumerated in article 19, paragraph 3 (a) and (b), and it must be necessary to achieve one of these purposes. The Committee notes that the author's final conviction was based on Article 43 of the Press Law, in conjunction with Section 410 of the Criminal Code. Even if it were assumed that his arrest and detention, or the restrictions on his travel, had a basis in Angolan law, and that these measures, as well as his conviction, pursued a legitimate aim, such as protecting the President's rights and reputation or public order, it cannot be said that the restrictions were necessary to achieve one of these aims. The Committee observes that the requirement of necessity implies an element of proportionality, in the sense that the scope of the restriction imposed on freedom of expression must be proportional to the value which the restriction serves to protect. Given the paramount importance, in a democratic society, of the right to freedom of expression and of a free and uncensored press or other media, (20) the severity of the sanctions imposed on the author cannot be considered as a proportionate measure to protect public order or the honour and the reputation of the President, a public figure who, as such, is subject to criticism and opposition. In addition, the Committee considers it an aggravating factor that the author's proposed truth defence against the libel charge was ruled out by the courts. In the circumstances, the Committee concludes that there has been a violation of article 19.
6.9 The last issue before the Committee is whether the author's prevention from leaving Angola on 12 December 2000 and the subsequent confiscation of his passport were in violation of article 12 of the Covenant. It notes the author's contention that his passport was confiscated without justification or legal basis, as his bail restrictions no longer applied, and that he was denied access to information about his entitlement to travel. In the absence of any justification advanced by the State party, the Committee finds that the author's rights under article 12, paragraph 1, have been violated.
7. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal violations of article 9, paragraphs 1, 2, 3 and 4, and of articles 12 and 19 of the Covenant.
8. In accordance with article 2, paragraph 3, of the Covenant, the author is entitled to an effective remedy, including compensation for his arbitrary arrest and detention, as well as for the violations of his rights under articles 12 and 19 of the Covenant. The State party is under an obligation to take measures to prevent similar violations in the future.
** The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr. Maurice Glèlè Ahanhanzo, Mr. Edwin Johnson, Mr. Walter Kälin, Mr. Ahmed Tawfik Khalil, Mr. Michael O'Flaherty, Ms. Elisabeth Palm, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Ivan Shearer, Mr. Hipólito Solari-Yrigoyen, Ms. Ruth Wedgwood and Mr. Roman Wieruszewski.
1. The Covenant and the Optional Protocol to the Covenant entered into force for the State party on 10 April 1992.
2. Article 46 of the Press Law reads: "If the person defamed is the President of the Republic of Angola, or the head of a foreign State, or its representative in Angola, then proof of the veracity of the facts shall not be admitted."
3. The crime of abuse of the press is defined as follows in article 43 of the Press Law: "(1) For purposes of this law, an abuse of the press shall be deemed to be any act or behavio[u]r that injures the juridical values and interests protected by the criminal code, effected by publication of texts or images through the press, radio broadcasts or television. (2) The criminal code is applicable to the aforementioned crimes as follows: (a) The court shall apply the punishment set forth in the incriminating legislation, which punishment may be aggravated pursuant to general provisions. (b) If the agent of the crime has not previously been found guilty of any abuse of the press, then the punishment of imprisonment may be replaced by a fine of not less than NKz. 20,000.00."
4. Article 407 of the Criminal Code describes the crime of defamation as follows: "If one person defames another publicly, de viva voce, in writing, in a published drawing, or in any public manner, imputing to him something offensive to his hono[u]r and dignity, or reproduces this, then he shall be condemned to a prison term of up to four months and a fine of up to one month."
5. The translation of the Supreme Court's public notice reads, in pertinent parts: "It does not make sense, therefore, for a single courtroom incident, resulting from a decision handed down by the Judge in question in open court, a decision which may be cured by a higher court in the legal process, and which is subject to an inter-institutional decision, to have caused such an inflammatory and unnecessary public notice from the Bar Association, creating an unjustly suspicious climate and discrediting [the judiciary] both domestically and abroad, and causing distorted proclamations by individuals, institutions, and even governmental officials."
6. The crime of injury is defined in article 410 of the Criminal Code: "The crime of injury, without imputation of any determined fact, if committed against any person publicly, by gestures, de viva voce, by published drawing or text, or by any other means of publication, shall be punished with a prison term of up to two months and a fine […].
In an accusation for injury, no proof whatsoever of the veracity of the facts to which the injury may refer shall be admissible."
7. Article 45 No. 3 reads: "Providing the veracity of the facts of the offense, once admitted by the author, shall render it exempt from punishment. Otherwise, the violator would be punished as a slanderer and sentenced to a prison term of up to 2 years and the corresponding finde, in addition to damages to be determined by a court, but in no case less than NKz. 50,000.00."
8. Amnesty Law 7/00 applies to "crimes against security which were committed […] within the sphere of the Angolan conflict, as long as its agents have presented themselves or may come to present themselves to the Angolan authorities […]."
9. The author refers to Communication No. 305/1988, van Alphen v. The Netherlands, Views adopted on 23 July 1990, at para. 5.8.
10. By reference to Communication No. 277/1988, Terán Jijón v. Ecuador, Views adopted on 26 March 1992, at para. 3, the author submits that incommunicado detention as such gives rise to a violation of article 9, paragraph 3, of the Covenant, since it negatively impacts on the exercise of the right to be brought before a judge.
11. Article 38 of the Constitution of Angola provides: "Any citizen subjected to preventive detention shall be taken before a competent judge to legalise the detention and be tried within the period provided for by law or released."
12. It appears that this issue was not however raised in the Supreme Court.
13. See Communication No. 253/1987, Kelly v. Jamaica, Views adopted on 8 April 1991, para. 5.8.
14. See Communication No. 349/1989, Wright v. Jamaica, Views adopted on 27 July 1992, at para. 8.4.
15. See Communications No. 980/2001, Hussain v. Mauritius, decision on admissibility adopted on 18 March 2002, at para. 6.3, and No. 618/1995, Campbell v. Jamaica, Views adopted on 20 October 1998, at para. 7.3.
16. See Communication No. 305/1988, Van Alphen v. The Netherlands, Views adopted on 23 July 1990, at para. 5.8; Communication No. 458/1991, Mukong v. Cameroon, Views adopted on 21 July 1994, at para. 9.8; Communication No. 560/1993, A. v. Australia, Views adopted on 3 April 1997, at para. 9.2.
17. Communication No. 277/1988, Terán Jijón v. Ecuador, Views adopted on 26 March 1992, at para. 5.3.
18. See Communication No. 560/1993, A. v. Australia, Views adopted on 3 April 1997, at para. 9.5.
19. See Communications Nos. 422/1990, 423/1990 and 424/1990, Aduayom et al. v. Togo, Views adopted on 12 July 1996, at para. 7.4.
20. See Human Rights Committee, General Comment 25 , 12 July 1996, at para. 25.

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Complainant, the Vanguard Group, is a Washington corporation with its principal place of business in Malvern, Pennsylvania, United States of America. Complainant is a wholly owned subsidiary of Nintendo Co., Ltd. of Kyoto, Japan.
According to the WHOIS database for BulkRegister.com, Inc., the Respondent in this administrative proceeding is Dotsan, located in Mumbai, India.
The disputed domain name is < vaguard.com >, registered with Bulk Register.com, Inc. in Baltimore, Maryland, United States of America.
The Complaint was submitted to the WIPO Arbitration and Mediation Center (the "Center") by email on June 24, 2002. The Center received a hardcopy of the Complaint on June 27, 2002. The Center acknowledged receipt of the complaint on June 27, 2002. The Center issued a request for Registrar Verification from the Registrar (Bulk Register.com, Inc.) on June 25, 2002. The Center initiated and completed a Formal Requirements Compliance Checklist on July 3, 2002. It determined at that date that the Complainant was in formal compliance with the requirements of the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Policy"), in effect as of December 1, 1999 ("the WIPO Supplemental Rules").
On July 3, 2002, the Center issued a notification of the Complaint and Commencement of Administrative Proceeding. On July 25, 2002, it notified the Parties of the Respondent�s Default. On August 5, 2002, it notified the Parties of the Appointment of the Administrative Panel and on that same date, it transmitted the Case File to the Administrative Panel.
The Panel has independently reviewed the requirements and finds that Complainant is in formal compliance with the requirements of the Policy, the Rules and the Supplemental Rules. The Complainant paid the required fees for a single-member Panel on time and in the required amounts.
Having reviewed the communications records in the case file, the Panel also finds that the Center discharged its responsibility under Paragraph 2(a), Rules, "to employ reasonably available means calculated to achieve actual notice to Respondent."
The Panel finds further, that the Administrative Panel was properly constituted and appointed in accordance with the Policy, the Rules and the WIPO Supplemental Rules.
Vanguard alleges that it is and has for many years been engaged in providing financial investment and financial advisory services, and finance and investment-related products and services ancillary thereto, and has built a large business in connection therewith. It maintains that it currently manages a portfolio of over $550 billion in assets; and that it is one of the leading investment companies in the United States and the largest no-load mutual fund company in the world.
Vanguard maintains that, since at least as early as 1974, it has used and is currently using "VANGUARD" as a mark and as a component of marks for a variety of financial products and services. The "VANGUARD" mark is registered on the Principal Register in the United States Patent and Trademark Office for "fund investment services" as Registration No. 1,784,435 issued July 27, 1993. Vanguard provides supporting documentation, including a copy of the Registration.
Vanguard alleges that, for many years, it has maintained and continues to maintain and operate a website featuring financial investment and financial advisory services with the domain address of "www.vanguard.com". Vanguard�s website provides financial services to its institutional and individual investors in addition to financial information to the non-investor public at large. Vanguard notes the Vanguard.com website won top honors in Forbes' 2000 "Best of the Web" issue and was named a "Forbes Favorite," the highest ranking in the mutual family category for investing websites in its 2001 "Best of the Web" issue. Complainant provides a printout of its website.
Complainant provides documentary evidence that on or about July 12, 2001, Respondent registered the domain name "vaguard.com" with BulkRegister.com. The Panel notes that this registration occurred some years after the first use and registration of the "VANGUARD" mark in the United States and elsewhere.
Complainant alleges that it was unaware of the "vaguard.com" registration until January 22, 2002. On that date, it discovered that if users typed in "vaguard.com", a misspelling of the term "Vanguard," as an Internet domain name, the user would be diverted to the <lowermybills.com> website, which contains content and advertisements relating to financial services, as well as links to the websites of other companies offering various services, including financial services.
On February 25, 2002, Complainant claims that it discovered that the users typing <vaguard.com> would be diverted to the <gotoo.com> website which also contains content and advertisements relating to financial services, as well as links to the websites of other companies offering various services, including financial services. As of June 18, 2002, visitors were diverted to the ownbox.com website which also offers links to the websites of companies offering various services including financial services. Complainant provides documentation in support of these allegations.
Complainant adduces evidence that it obtained the contact information for the owner of the <vaguard.com> domain name registration from the WHOIS database of Betterwhois.com and sent a letter to the owner of the domain name registration (the Respondent in this action) via postal mail and electronic mail on February 25, 2002. In its communication, the Complainant indicated that Respondent�s registration of the <vaguard.com> domain name violated Vanguard�s rights in its "VANGUARD" trademark under United States law. Complainant demanded that Respondent promptly transfer the <vaguard.com> domain name registration to Complainant. That same day, Complainant received a response from the Respondent via electronic mail, stating: "our client amicably ask $500." Later that day, Complainant replied and inquired as to the correspondent�s name and the identity of his "client." It reiterated that it was trying to contact the owner of the <vaguard.com> domain name. Complainant provides documentation verifying these communications.
Complainant claims that it received no response to its email from the Respondent. On March 8, 2002, it sent a follow up email to Respondent requesting a response to its previous email. Later that day, Complainant received a response stating: "I�m admin of those domains now. So you can deal with me." On March 11, 2002, Complainant replied, requesting the author of the emails to identify himself. On April 2, 2002, Complainant sent a follow up email to Respondent�s email address requesting a response to its previous email of March 2, 2002. Complainant alleges that it received no response to both emails, of March 11 and April 2, 2002.
Finally, Complainant alleges that, to date, Respondent has refused to surrender the <vaguard.com> domain name to it, the Complainant, or to cancel the domain name registration.
Complainant contends that Respondent has registered domain names which are nearly identical to and confusingly similar to the service marks and trademarks registered and used by Complainant, that Respondent has no rights or legitimate interests in respect of the domain names in issue, and that Respondent has registered and is using the domain name <vaguard.com> in bad faith.
Complainant alleges that Respondent�s use of the <vaguard.com> domain name is confusingly similar to the "VANGUARD" trademark. In particular, it incorporates a common misspelling of the term "Vanguard." The omission of the letter "n" is the only difference between Respondent�s <vaguard.com> domain name and Vanguard�s registered mark. Accordingly, the domain name is confusingly similar to Vanguard�s registered mark. See, The Vanguard Group, Inc. v. RealTimeInternet.com, Inc., WIPO Case No. D2001-0873.
The Panel agrees with Complainant. Omitting or adding a letter, or misspelling a trademark, falls within both the letter and spirit of the confusing similarity prohibited by the Policy. See Nicole Kidman v. John Zuccarini, WIPO Case No. D2000-1415 (January 23, 2001). There, for example, it was held that <nicholekidman.com> is " 'virtually identical and confusingly similar' to Nicole Kidman�s common law mark; the only difference is the purposeful misspelling, created by the addition of an 'h,' and it is well established . . . that such misspellings are actionable under the Policy". See too Infospace v. Dominion Hill, Inc., WIPO Case Nos. D2000-1475 and D2000-1477 (January 22, 2001) in which it was held that <infosspace.com>, <ynfospace.com>, <inffospace.com>, <infospaace.com>, <infosppace.com>, <innfospace.com> and <infospacce.com> are confusingly similar to the trademark "INFOSPACE" because "the seven domain names at issue all fall within one letter of the registered trademarks and registered domain name belonging to Infospace". Similarly, in Nintendo of America Inc. v. Daniel Lopez, WIPO Case No. D2000-1166 (December 8, 2000), it was stated that: "Respondent's addition of the non-distinctive 'i-' to its domain name does nothing to reduce its confusing similarity with Complainant's NINTENDO marks." Similarly, in Nintendo of America Inc. v. Max Maximus, WIPO Case No. D2000-0588 (August 1, 2000), the Panel found that the <gameb0y.com> domain name, spelled with a zero, confusingly similar to the GAME BOY® trademark. See too, Nintendo of America Inc. v. Baltic Consultants Limited, WIPO Case No. D2000-0449, decided by this Panelist in which it was held in an analogous case, <pokemonl.com> is a likely misspelling by a typist who inadvertently strikes an extra key while typing <pokemon.com>, which is the domain name of Nintendo's primary POKÉMON® Web site".
Complainant alleges that Respondent has no legitimate interest in or business purpose for the domain name <vaguard.com>. Respondent has no trademark rights in "VAGUARD". Respondent�s only use of the domain name is to direct visitors to the "lowermybills.com" "gotoo.com" and "ownbox.com" websites. People who may access <vaguard.com> in an attempt to reach Vanguard�s website may incorrectly believe that Vanguard�s website is affiliated with, sponsored by or some how connected with the <lowermybills.com>, <gotoo.com> or <ownbox.com> websites.
The Panel agrees that Respondent lacks a legitimate interest in the domain name <vaguard.com>. Evidencing such illegitimacy is the fact that Respondent has sought registration of the domain name after Complainant had established VANGUARD as a widely recognized trade mark and some time after Complainant had begun to use its widely recognized and publicized Web site.
The Respondent's use of the domain name <vaguard.com> in a manner that misleads consumers and harms Complainant�s business interests is also illegitimate. Such illegitimacy arises out of three related factors. Firstly, consumers are likely to associate Respondent's domain name with Complainant�s financial services. Secondly, consumers interested in the Complainant�s financial services are likely to be diverted to the financial services being offered by Respondent at the disputed VAGUARD site. Thirdly, some consumers are likely to assume that the Complainant, VANGUARD, identifies itself with the financial services being advertised on the disputed VAGUARD website. These factors, viewed cumulatively, are illegitimate in violating the Policy. See Policy, paragraph 4(c)(iii).
Complainant alleges that the <vaguard.com> domain name should be considered as having been registered and used in bad faith for the following reasons. Respondent had constructive notice under 15 U.S.C. � 1072 that the "VANGUARD" mark was a registered mark. Complainant neither agreed nor consented to Respondent�s use or registration of <vaguard.com>. By registering <vaguard.com> Respondent precluded Complainant from securing a common misspelling of its mark in a corresponding domain name. Respondent�s registration and use of <vaguard.com> constituted an obvious attempt to trade on the value of Complainant�s mark, taking advantage in bad faith of typographical errors by Internet users. Complainant alleges further, that Respondent�s bad faith is evident in the refusal to transfer or cancel the domain name in the face of Complainant�s clear objection.
Complainant refers to prior Administrative panels that have indicated that there is no conceivable good faith use to which such the practice, commonly known as "typosquatting", can be put. The Vanguard Group, Inc. v. RealTimeInternet.com, Inc., WIPO Case No. D2001-0873; General Electric Company v. Fisher Zvieli a/k/a Zvieli Fisher, WIPO Case No. D2000-0377. See Pig Improvement Company, Inc. v. Platinum Net, Inc., WIPO Case No. D2000-1594; Microsoft Corp. v. Global Net 2000, Inc., WIPO Case No. D2000-0554; Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; and News Group Newspapers Limited and News Network Limited v. Momm Amed la, WIPO Case No. D2000-1623.
Complainant argues that the Respondent was in bad faith, in its initial email response to Complainant�s cease and desist letter. In particular, Respondent offered to sell the Infringing Domain Name to Vanguard at a price that well exceeded the cost incurred in the registration of the Infringing Domain Name. Following U.S. case law and UDRP precedents, Complainant alleges that Respondent�s offer to sell the domain name constitutes use of the domain name in commerce and meets the use requirement of the UDRP. See Panavision International, L.P. v. Dennis Toeppen, et al., 141 F.3d 1316 (9th Cir. 1998); World Wrestling Federation Entertainment, Inc. v. Michael Bosman (WIPO Case No. D1999-0001); Educational Testing Serv. v. TOEFL, (WIPO Case No. D2000-0044); Jordan Grand Prix Ltd. v. Gerry Sweeney, (WIPO Case No. D2000-0233); Capcom Co. Ltd. and Capcom U.S.A. Inc. v. Dan Walker, (WIPO Case No. D2000-0200). In addition, people who may access <vaguard.com> in an attempt to reach Vanguard�s website may incorrectly believe that Vanguard�s website is affiliated with, sponsored by or some how connected with the <lowermybills.com>, <gotoo.com> and <ownbox.com> websites.
Complainant alleges as well that administrative panels have previously indicated that the Policy does not permit registration of a domain name that contains the trademark of another in an attempt to gain credibility for the services offered by misleading users into believing there is an association with the trademark owner. See Reed Elsevier Inc. v. Carlos M. Alvarez d/b/a IT Lexis, ICANN Case No. FA0107000098249; Identigene, Inc. v. Genetest Lab., WIPO Case No. D2000-1100; eBay, Inc. v. Progressive Life Awareness Network, WIPO Case No. D2000-0068.
The Panel holds that Respondent is in bad faith. It is evident that Respondent registered the disputed domain name to take advantage of a likely misspelling by typists, here the omission of an "n", in typing the word VANGUARD.COM. In particular, the Respondent intended to attract to its disputed site typists who inadvertently failed to strike the "n" key in typing the word VANGUARD.COM. Such actions constitute bad faith. For comparable determinations of bad faith, see NextCard v. Baltic Consultants Limited, NAF Claim No. FA 97073 (<nextcardl.com>); and Bloomberg L.P. v. Baltic Consultants Limited, NAF Claim No. FA 95834 (<bloombergl.com>); Nintendo of America Inc. v. Baltic Consultants Limited, WIPO Case No. D2000-0449.

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The following is a Compendium of Part 741 of the Code of Federal Regulations (“CFR”). Part741 governs Federally-Insured State-Chartered Credit Unions (“FISCUs”). Part 741 is divided into two subparts. Subpart A contains regulations that apply directly to FISCUs and are not codified elsewhere in the U.S. Code (“U.S.C.”) or CFR. While the regulations of Subpart A are not fully codified elsewhere, they regularly reference other provisions of the U.S.C. and CFR.
Subpart B incorporates by reference complete provisions of the U.S.C. and CFR and applies them to FISCUs. Some provisions of Part 741 refer to sections of the U.S.C. or CFR that discuss activities that may not be permitted under the law of the state in which the FISCU is chartered. Please note that Part 741 does not enlarge the scope of a FISCU’s authority beyond what is permitted under applicable state law.
This document is an integrated roadmap of Part 741. Each Section of Part 741 is listed in its entirety. Where the text of Part 741 includes a cross-reference to other provisions of the U.S.C. or CFR, such cross-reference is indicated in bold. Click the bold text and your web browser will automatically open the relevant provision at www.gpo.gov (for the U.S.C.) or www.ecfr.gov (for the CFR).
Some provisions include a “Special Notes” section. These notes are not part of the text of Part 741. Rather, they are helpful links and guidance meant to make use the Compendium more efficient.
“FISCU” refers to entities regulated under Part 741. The original text of Part 741 refers to the regulated entities variously as “credit unions,” “credit unions insured pursuant to title II of the Act,” “state-chartered credit unions,” etc. Inconsistent identification makes it difficult to determine when a particular provision applies. Therefore, for ease of reference, the term “FISCU” is inserted throughout the text of Part 741 wherever applicable.
“The Act” refers to the Federal Credit Union Act (12 U.S.C. §§1751 - 1795k).
“NCUA” refers to the National Credit Union Administration.
Problem 1. I clicked the bold text in the body of a Section, but my browser did not open.
A: Make sure your cursor shows that you are using either the Selection Tool or the Hand Tool . The hyperlinks in the bold text may not appear if you are using other editing tools.
Problem 2. My browser opened a provision other than the one I clicked. My browser tried to open the website, but I got an error message.
§741.4 Insurance premium and one percent deposit.
§741.5 Notice of termination of excess insurance coverage.
§741.6 Financial and statistical and other reports.
§741.7 Conversion to a state-chartered credit union.
§741.8 Purchase of assets and assumption of liabilities.
§741.10 Disclosure of share insurance.
§741.12 Liquidity and contingency funding plans.
§741.201 Minimum fidelity bond requirements.
§741.202 Audit and verification requirements.
§741.203 Minimum loan policy requirements.
§741.204 Maximum public unit and nonmember accounts, and low-income designation.
§741.205 Reporting requirements for credit unions that are newly chartered or in troubled condition.
§741.207 Community development revolving loan program for credit unions.
§741.208 Mergers of federally insured credit unions: voluntary termination or conversion of insured status.
§741.213 Administrative actions, adjudicative hearings, rules of practice and procedure.
§741.214 Report of crime or catastrophic act and Bank Secrecy Act compliance.
§741.218 Involuntary liquidation and creditor claims.
§741.220 Privacy of consumer financial information.
§741.221 Suretyship and guaranty requirements.
§741.222 Credit union service organizations.
§741.223 Registration of residential mortgage loan originators.
§741.224 Golden parachute and indemnification payments.


This was generated due to the conversation in the comments on the previous post.
OK, first let’s address Terry v. Ohio, 392 U.S. 1 (1968). That decision focuses on the authority of an officer to detain someone who the officer has a reasonable, articulable suspicion may be involved in criminal activity. It is silent as to the authority to identify who the person is. It certainly does not state that an officer is justified in “requiring a suspect to disclose his or her name” as Sam asserts.
Here, there is no question that the officers had grounds to detain Espinosa. The standard of proof required is reasonable suspicion, and they met that standard. That standard remains below the standard of probable cause, which is required for an arrest.
Next, Sam is correct on the basic issue of Hiibel v. Sixth Judicial Dist. Ct. of Nevada, 542 U.S. 177 (2004). Sam said that Hiibel “held that statutes requiring suspects to disclose their names during police investigations did not violate the Fourth Amendment if the statute first required reasonable and articulable suspicion of criminal involvement.” (emphasis added). That’s correct, but Sam is missing one key factor. Hiibel requires that the state have a statute authorizing the officer to require identification. Nevada has such a statute, Texas does not.
These statutes are called “Stop and Identify” statutes. In Nevada, the law states that “Any person so detained shall identify himself or herself. . . .” Nev. Rev. Stat. Ann. § 171.123. Texas has no such law, and contrary to Sam’s assertions, the case law in Texas is not “all over the map,” but are remarkably consistent, and uniformly against his position.
“When section 38.02 was enacted with the recodification of the Penal Code in 1973, it originally criminalized providing a false identity and failing to identify oneself to a police officer when the person had been ‘lawfully stopped.’ The legislature narrowed the statute in 1987 to apply only in situations when the person had been ‘lawfully arrested.’ In 1991 the legislature struck a middle ground—it criminalized failing to identify oneself when lawfully arrested but also criminalized giving a false name when lawfully detained or lawfully arrested. The statute was amended in 1993 and 2003, but the legislature did not alter the basic framework—it kept the distinction between “lawfully arrested” and ‘lawfully detained.’” Overshown v. State, 329 S.W.3d 201, 208 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (internal citations and footnotes omitted).
The law was changed based on a number of factors. First, in Brown v. Texas, 443 U.S. 47 (1979), the Supreme Court held that Texas could not just stop someone and require that they produce identification. This was followed by a ruling that “Individuals stopped by the police merely on the basis of suspicion, have a right not to be arrested, a right to remain silent, and, as a corollary, a right not to be arrested if they choose to remain silent.” Spring v. Caldwell, 516 F. Supp. 1223, 1230 (S.D. Tex. 1981), rev’d on other grounds, 692 F.2d 994 (5th Cir. 1982).
So far the State of Texas has declined to expand the authority of police to arrest someone who choses to remain silent when asked for identification while detained.
Another case also spells it out clearly. “When appellant refused to give [the officer] his name, he was not under arrest. Therefore, subsection (a) does not apply . . . Under these facts, appellant did not commit the offense of failing to identify himself. Further, the officers provided no evidence at the suppression hearing to justify a warrantless arrest, such as a showing that appellant was about to escape. Thus, the trial court properly determined that appellant was illegally arrested.” Crutsinger v. State, 206 S.W.3d 607, 610 (Tex. Crim. App. 2006). Note that in this case, Crutsinger was suspected of capital murder, so Sam’s argument about the severity of the offense just flew out the window.
Sam then claims that “obstructing is called interfering with the duties of a public servant.” It’s a novel approach and creative, but in accurate. Thus far there has not been a single appellate case where this has been brought up, probably because § 38.15, Interference with Public Duties, Tex. Pen. Code Ann. provides that speech only is not an offense and this would prohibit a successful prosecution. See Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007); Carney v. State, 31 S.W.3d 392 (Tex. App.—Austin 2000, no pet.).
“Defendants correctly concede that no probable cause existed to place Adams under arrest for Failure to Identify. The Texas Penal Code requires only a person who has been lawfully arrested to provide his name, address, or date of birth to a police officer who requests identification. Indeed, at the time of Adams’s arrest, the Supreme Court had held the application of Penal Code § 38.02 unconstitutional in the absence of reasonable suspicion to believe that the defendant was engaged in or had engaged in criminal conduct. Officers Wright confirms that he initially advised Adams that he was not under arrest, and conditioned the subsequent arrest on Adams’s refusal to produce identification. Accordingly, Defendants had no probable cause to arrest Adams for Failure to Identify.” Adams v. Praytor, 2004 U.S. Dist. LEXIS 12383, 16-17, 2004 WL 1490021 (N.D. Tex. July 1, 2004) (internal citations omitted).
This is clear, black letter law. It doesn’t matter what gyrations are thrown in, it doesn’t change the facts, nor will it change the outcome. Both the city and the county, if they’re smart, will settle with Ms. Espinosa. It’ll be cheaper than a trial. Especially when her attorney points out that by forcing her to destroy a portion of the video, there was arguably grounds to charge the officers with Tampering with or Fabricating Physical Evidence, § 37.09, Tex. Pen. Code Ann., a third degree felony. I would almost bet that Shurka thought of this, although I doubt that Simpson did (but I could be wrong). I don’t remember if Simpson was still a Deputy Chief in Dallas when their officers pointed a dash cam away so it would not film the officers beating an evading suspect.


text:
Ms. *20, quoting Landry v. Landry, 182 So. 3d 553, 556 (Ala. Civ. App. 2014).
"Although a trial court generally loses jurisdiction to amend its judgment 30 days after the entry of judgment (see Ex parte Owen, 420 So. 2d 80, 81 (Ala. 1982)), a trial court retains the power to correct sua sponte any error in its judgment that comes to its attention during the pendency of a party's Rule 59(e) motion to alter, amend, or vacate the judgment, regardless of whether the error was alleged or not alleged in the motion. See, e.g., Varley v. Tampax, Inc., 855 F.2d 696, 699 (10th Cir. 1988); Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986); Arnold v. Sullivan, 131 F.R.D. 129, 133 (N.D. Ind. 1990)."
Henderson v. Koveleski, 717 So. 2d 803, 806 (Ala. Civ. App. 1998). See Parker v. Parker, 10 So. 3d 567, 569 (Ala. Civ. App. 2008) (noting that the trial court retained jurisdiction to correct an error in its judgment while a party's postjudgment motion was pending); Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986) ("A judge may enlarge the issues to be considered in acting on a timely motion under Rule 59[Fed. R. Civ. P.]."); and Varley v. Tampax, Inc., 855 F.2d 696, 699 (10th Cir. 1988) ("The salient fact is that a motion to amend judgment was timely filed. Such gave the [trial court] the power and jurisdiction to amend the judgment for any reason, if it chose to do so, and it was not limited to the ground set forth in the motion itself.").[fn] See also Ex parte DiGeronimo, [Ms. 2140611, Oct. 9, 2015 __ So. 3d __, __ (Ala. Civ. App. 2015).
A trial court's jurisdiction to amend its judgment while a party's postjudgment motion is pending does not extend to granting new relief that was requested after the judgment had already been entered. Burgess v. Burgess, 99 So. 3d 1237 (Ala. Civ. App. 2012).

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