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[PASSED] Double Jeopardy Prohibition

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Quelesh
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[PASSED] Double Jeopardy Prohibition

Postby Quelesh » Wed Feb 22, 2012 11:28 am

Edit: Thank you to everyone who helped this resolution to pass!

The wording in this proposal was originally incorporated into my Habeas Corpus Act draft. However, in order to invalidate the concerns of a vocal minority of nations, and to ensure that there is no obstacle to the passage of that proposal's core habeas corpus protections, I have decided to make the anti-double-jeopardy protection a separate proposal.

Submitted version:

(Human Rights / significant)

The World Assembly,

APPALLED by the practice of double jeopardy, or trying an individual more than once for the same alleged offense;

CONVINCED that freedom from this unjust practice is a cornerstone of any fair criminal justice system;

SEEKING to put an end to this injustice;

hereby MANDATES the following, subject to any limitations existing in prior international law:

1. Once an individual has been acquitted of a crime, member states shall not try that individual for the same alleged criminal act again.

2. Member states may vacate an individual's conviction of a crime and grant the individual a new trial for that crime. If the individual is again convicted of the crime, the new sentence shall not be more severe than the old sentence, and any conditions of the old sentence that have been met shall count toward the completion of the new sentence.

3. Member states may choose to not pursue a retrial of an individual whose conviction of a crime has been vacated in accordance with clause 2. In such cases, the individual's criminal sentence for the crime must be immediately terminated;

4. Once an individual has been convicted of a crime, member states shall not try that individual for the same alleged criminal act again without vacating the individual's conviction in accordance with clause 2.


Character count: 1,301

Previous draft:

(Human Rights / significant)

The World Assembly,

APPALLED by the practice of double jeopardy, or trying an individual more than once for the same alleged offense;

CONVINCED that freedom from this unjust practice is a cornerstone of any fair criminal justice system;

SEEKING to put an end to this injustice;

hereby MANDATES that once an individual has been acquitted of a crime, member states shall not try that individual for the same alleged criminal act again.


Character count: 429


Alexandria Yadoru
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Last edited by Quelesh on Fri Mar 16, 2012 9:15 am, edited 8 times in total.
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Wisconsin7
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Postby Wisconsin7 » Wed Feb 22, 2012 11:32 am

Make it so that if new evidence is found someone can be tried again and I will support.
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Southron
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Postby Southron » Wed Feb 22, 2012 11:37 am

Should include not being tried again if acquitted or convicted, and perhaps a clause regarding new evidence.
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Moustacheopolis
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Postby Moustacheopolis » Wed Feb 22, 2012 11:42 am

Wisconsin7 wrote:Make it so that if new evidence is found someone can be tried again and I will support.

How easy would this be? It seems that the slightest amount of "evidence" could be withheld, and then used as a ploy for retrial. Or, perhaps, tangentially relevant information could be used to the same end. Even if new evidence is uncovered, should a citizen be punished for the incompetence of prosecutors?

One could argue for a clause requiring new evidence to be "substantial" to warrant a retrial, but such arbitrary standards are open to interpretation to such an extent as to be meaningless.

I will admit that the law as it stands is not perfect, but any alternative is open to corruption and would only bog down the Justice system with retrials to the point where no trials could end. Double Jeoprady cannot be allowed under any circumstance, regardless of any unfortunate individual cases.

TL;DR, I'd vote for it as is, OP.
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Mallorea and Riva
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Postby Mallorea and Riva » Wed Feb 22, 2012 11:45 am

Utterly opposed to this. Once again I will request that the WA recognize that broad, one liners are not conducive to effective international law. Besides, your notion that Double Jeopardy is an Evil that should be removed is based on the flawed premise that it can only be used for unjust purposes.
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Quelesh
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Postby Quelesh » Wed Feb 22, 2012 11:47 am

Wisconsin7 wrote:Make it so that if new evidence is found someone can be tried again and I will support.


Such a change would dramatically weaken the anti-double-jeopardy provision and open the floodgates for loopholes. Sorry, but we cannot do that.

Southron wrote:Should include not being tried again if acquitted or convicted, and perhaps a clause regarding new evidence.


My Habeas Corpus Act draft partially addresses conviction retrials, by allowing member states to vacate a conviction and order a new trial, so long as, if the person is again convicted, the new sentence is no more severe than the old sentence and any terms of the old sentence that have been met are counted toward the new sentence.

Moustacheopolis wrote:
Wisconsin7 wrote:Make it so that if new evidence is found someone can be tried again and I will support.

How easy would this be? It seems that the slightest amount of "evidence" could be withheld, and then used as a ploy for retrial. Or, perhaps, tangentially relevant information could be used to the same end. Even if new evidence is uncovered, should a citizen be punished for the incompetence of prosecutors?

One could argue for a clause requiring new evidence to be "substantial" to warrant a retrial, but such arbitrary standards are open to interpretation to such an extent as to be meaningless.

I will admit that the law as it stands is not perfect, but any alternative is open to corruption and would only bog down the Justice system with retrials to the point where no trials could end. Double Jeoprady cannot be allowed under any circumstance, regardless of any unfortunate individual cases.

TL;DR, I'd vote for it as is, OP.


Thank you very much for your support, and for succinctly explaining the reasons why double jeopardy cannot be allowed.

Mallorea and Riva wrote:Utterly opposed to this. Once again I will request that the WA recognize that broad, one liners are not conducive to effective international law. Besides, your notion that Double Jeopardy is an Evil that should be removed is based on the flawed premise that it can only be used for unjust purposes.


Double jeopardy inherently lends itself to unjust ends, even if its practitioners have good intentions.

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Paper Flowers
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Postby Paper Flowers » Wed Feb 22, 2012 11:53 am

It is good to see this split out of the other proposal so that it may have a chance at passing. Obviously we remain firmly opposed to this unnecessary restriction on our law enforcement officials ability to do their jobs. We regret that the passing of this law would lead to a rise in what may be considered "alternative" justice systems within our nation, to ensure that those who commit crimes must answer for them, regardless of certain ambassadors unwillingness to have matters settled in courts.
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Postby Mallorea and Riva » Wed Feb 22, 2012 11:58 am

Quelesh wrote:
Mallorea and Riva wrote:Utterly opposed to this. Once again I will request that the WA recognize that broad, one liners are not conducive to effective international law. Besides, your notion that Double Jeopardy is an Evil that should be removed is based on the flawed premise that it can only be used for unjust purposes.


Double jeopardy inherently lends itself to unjust ends, even if its practitioners have good intentions.

Alexandria Yadoru
Quelesian WA ambassador

You completely forbid the reopening of cases, despite the fact that is is commonly accepted that once new evidence is brought into light a case may be reopened.
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Southron
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Postby Southron » Wed Feb 22, 2012 12:00 pm

Mallorea and Riva wrote:
Quelesh wrote:
Double jeopardy inherently lends itself to unjust ends, even if its practitioners have good intentions.

Alexandria Yadoru
Quelesian WA ambassador

You completely forbid the reopening of cases, despite the fact that is is commonly accepted that once new evidence is brought into light a case may be reopened.

New evidence is apparently corruption, incompetence, and injustice.
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Quelesh
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Postby Quelesh » Wed Feb 22, 2012 12:16 pm

Paper Flowers wrote:It is good to see this split out of the other proposal so that it may have a chance at passing. Obviously we remain firmly opposed to this unnecessary restriction on our law enforcement officials ability to do their jobs. We regret that the passing of this law would lead to a rise in what may be considered "alternative" justice systems within our nation, to ensure that those who commit crimes must answer for them, regardless of certain ambassadors unwillingness to have matters settled in courts.


That vigilante justice is a problem in some nations does not justify allowing all nations to impose a fundamentally unjust practice on their citizens.

Mallorea and Riva wrote:You completely forbid the reopening of cases, despite the fact that is is commonly accepted that once new evidence is brought into light a case may be reopened.


Commonly accepted by whom? Law enforcement agencies reopen cold cases all the time, but that's no justification for putting through the wringer for a second time someone who has already been found not guilty by a court of law.

Alexandria Yadoru
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Mallorea and Riva
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Postby Mallorea and Riva » Wed Feb 22, 2012 12:21 pm

Quelesh wrote:
Mallorea and Riva wrote:You completely forbid the reopening of cases, despite the fact that is is commonly accepted that once new evidence is brought into light a case may be reopened.


Commonly accepted by whom? Law enforcement agencies reopen cold cases all the time, but that's no justification for putting through the wringer for a second time someone who has already been found not guilty by a court of law.

Alexandria Yadoru
Quelesian WA ambassador

IC: It is common practice in my own nation, as well as many others. Your proposal is dangerously shortsighted.

OOC: The Council of Europe:
No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he or she has already been finally acquitted or convicted in accordance with the law and penal procedure of that State...
The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

Many European nations also have an appeals process through which faulty acquittals can be processed.
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Postby Paper Flowers » Wed Feb 22, 2012 12:32 pm

Quelesh wrote:That vigilante justice is a problem in some nations does not justify allowing all nations to impose a fundamentally unjust practice on their citizens.


Yet unfortunately you continue to push a fundamentally unjust practice on all nations by attempting to block their ability to bring criminals to justice. If you would tie the hands of the court, we will give our full support to any individual who chooses to resolve crimes against them outside of the courts. This is not a step we take lightly, but our responsibility is to our law abiding citizens, not to criminals as you would seem to think.
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Postby Tanular » Wed Feb 22, 2012 1:11 pm

Sir Bodsworth Rugglsby IV shuffles through a stack of paper in confusion.

An exception clause could easily include grounds for new evidence while simultaneously clarifying that new evidence does not include evidence withheld by the State (which really ought to be illegal of its own right, but that's a different matter).

The simplest and easiest example of this is perjury: If someone was acquitted in large part due to a witness or witnesses providing an alibi, and later it was revealed that said witnesses perjured themselves by providing a false alibi (Bob says Bill was with him at the roller rink that night; six months after the trial, a video of Bob at the football game on the night in question shows up), then the acquittal would have been on unjust grounds.

A more complex example involves changes in technology. Suppose a criminal is acquitted because there's no evidence that a presented knife was in fact the murder weapon. Years later, this particular location develops the ability to do blood-typing or DNA testing or whatever that allows the state to prove the weapon is, in fact, the murder weapon. The evidence is no different than any other evidence presented at court...it can be disputed, etc. The only difference is that it was not available at all during the original proceedings. That's not the fault of the State and leaves an grey area for debate.

Since this is written up as a separate proposal, there's more than enough room to debate, clarify, and eliminate loopholes without just saying 'no retrials' and pretending that solves the problem.
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PleaseStaySafeOP
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Postby PleaseStaySafeOP » Wed Feb 22, 2012 11:13 pm

We fully support this legislation and agree with the author that it would be far too easy to abuse a system in which the accused are allowed to be tried multiple times for the same crime.

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Postby Black Marne » Wed Feb 22, 2012 11:28 pm

Well then esteemed ambassadors, how about we just create a provision that requires that there be no evidence withheld at the first trial? And then a definition for the term "new evidence"? Simple problem, simple solution.

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Postby Linux and the X » Thu Feb 23, 2012 12:25 am

Yep, this sure did get a lot of extra support! :roll: Just put it back in the damn Habeus Corpus proposal.

As far as exceptions, we agree that extra evidence is insufficient; if there were not enough evidence to convict, the trial should not have occured. However, we do not believe that someone should be free from retrial if jury tampering or perjury occurs, particularly if the individual is responsible for the problem.
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Postby United Celts » Thu Feb 23, 2012 4:05 am

"The Kingdom of United Celts was among those who asked Ambassador Yadoru to split this off from her habeas corpus replacement proposal," Ambassador Finn Mac Lochlainn explained, "and we applaud her for doing so. But I want to make clear at this time that we made that request because we didn't want to see basic habeas corpus protections jeopardized, not because we disagreed with the Empire of Quelesh regarding double jeopardy. In fact, we strongly agree and we urge Ambassador Yadoru to disregard the national sovereigntist arguments that have been made against the Empire's proposal thus far. Those who have been found not guilty of a crime should not be subject to continued prosecution until the prosecutor is finally able to secure the outcome he or she wants. Period. This is a bright line sapient rights issue and one that the General Assembly should address immediately and unequivocally."
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Postby Wisconsin7 » Thu Feb 23, 2012 6:16 am

(OOC: I hate when the best argument against a proposal is the "National sovereignty" crap. You want full sovereignty, stay out of the WA.)
IC:
We would accept a clause stating that all known evidence is to be presented at the trial, as long as a clause was added allowing new evidence to reopen the trial.
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Postby Alqania » Thu Feb 23, 2012 9:24 am

Lord Raekevik cleared his throat before taking the floor. "The Queendom remains opposed to this proposal. We shall abstain from providing further criticism, as we sincerely doubt the author would change anything to our liking."
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Postby Paper Flowers » Thu Feb 23, 2012 11:02 am

Linux and the X wrote:Yep, this sure did get a lot of extra support! :roll: Just put it back in the damn Habeus Corpus proposal.


Then those of us who support the Habeus Corpus proposal currently, but oppose this would be forced to vote against both, whereas now we can support one but not the other. The idea of splitting out Double Jeopardy was not to increase support for Double Jeopardy.
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Postby Cerberion » Thu Feb 23, 2012 12:59 pm

Quelesh wrote:(Human Rights / significant)

The World Assembly,

APPALLED by the practice of double jeopardy, or trying an individual more than once for the same alleged offense;

I think you need to more accurately define double jeopardy. A case can be brought to trial and be dismissed through lack of evidence. The case can then be reopened and retried. The same goes for mistrials.

Double jeopardy specifically focuses on those who have been aquitted or found guilty of a charge.

Perhaps:
DEFINING double jeopardy as as a procedural defence that prevents an individual being tried on the same or similar offence, after receiving an aquittal or convicttion on the original offence.

APPALLED that many nations do not protect their citizenry from double jeopardy;


Quelesh wrote:CONVINCED that freedom from this unjust practice is a cornerstone of any fair criminal justice system;

SEEKING to put an end to this injustice;

hereby MANDATE that once an individual has been acquitted of a crime, member states shall not try that individual for the same alleged criminal act again.

Mandates

You should also have something like:
hereby mandates that once an individual has been acquitted or convicted of a crime, member states shall not try that individual for the same or similar alleged criminal act again.

The reason for this is that it is quite common practice to dress offences up in similar ways.
For example,
An individual is found innocent of a battery charge, and as they walk out of the courtroom they are re-arrested and charged with common assault for the same offence.

Likewise, it's not impossible to convict someone of grand theft, and then bring a grand larceny charge against them for the same crime.

If you are going to try and put something in on double jeopardy, might as well cover the actual thing.

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Postby Goobergunchia » Thu Feb 23, 2012 1:20 pm

We suggest that the proposal be titled "Double Jeopardy Prohibition" or something else that is more descriptive than the incredibly bland "On _____" form. A proposal with an identical short title could require two trials to acquit any defendant.

[Lord] Michael Evif
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Quelesh
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Postby Quelesh » Thu Feb 23, 2012 2:49 pm

Linux and the X wrote:However, we do not believe that someone should be free from retrial if jury tampering or perjury occurs, particularly if the individual is responsible for the problem.


Perjury and jury tampering are valid concerns, but I do not think that addressing those concerns requires double jeopardy. In most reasonable justice systems, perjury and jury tampering are serious crimes in themselves. In fact, a member state can make the lawful punishment for jury tampering equal to the punishment she could have received at the original trial had she been convicted. For example, if someone is tried for murder in a state that allows up to life imprisonment for murder, and is acquitted because she committed jury tampering, the sentence for jury tampering could be up to life in prison in her case. Though this is not what my own nation's justice system does, this would not be unreasonable, in my opinion.

Cerberion wrote:
Quelesh wrote:APPALLED by the practice of double jeopardy, or trying an individual more than once for the same alleged offense;

I think you need to more accurately define double jeopardy. A case can be brought to trial and be dismissed through lack of evidence. The case can then be reopened and retried. The same goes for mistrials.

Double jeopardy specifically focuses on those who have been aquitted or found guilty of a charge.

Perhaps:
DEFINING double jeopardy as as a procedural defence that prevents an individual being tried on the same or similar offence, after receiving an aquittal or convicttion on the original offence.

APPALLED that many nations do not protect their citizenry from double jeopardy;


The clause in question is not actually a definitional clause; it is a preambulatory clause that does not carry the force of law. It merely elucidates the Assembly's position on the issue at hand before the operative clause that actually requires a change.

That said, it's not my intention to prevent charges from being refiled after being dismissed before a trial is completed. For example, if the prosecution in a member state files charges against a person, and then realizes that they don't have enough evidence to convict her, they can (if the member state's law allows this) request that the charges be dismissed without prejudice, so that there is no trial, but the prosecution reserves the right to file the same charges again if new evidence comes to light (subject to any statute of limitations the member state may have). This proposal would not prevent that.

Cerberion wrote:
Quelesh wrote:hereby MANDATE that once an individual has been acquitted of a crime, member states shall not try that individual for the same alleged criminal act again.

Mandates

You should also have something like:
hereby mandates that once an individual has been acquitted or convicted of a crime, member states shall not try that individual for the same or similar alleged criminal act again.

The reason for this is that it is quite common practice to dress offences up in similar ways.
For example,
An individual is found innocent of a battery charge, and as they walk out of the courtroom they are re-arrested and charged with common assault for the same offence.

Likewise, it's not impossible to convict someone of grand theft, and then bring a grand larceny charge against them for the same crime.

If you are going to try and put something in on double jeopardy, might as well cover the actual thing.


First, thanks for pointing out the error in the verb tense.

Second, I'm very hesitant to include the word "similar." Doing so may prevent member states from prosecuting a person for an entirely separate alleged act, if that alleged act was similar to the act for which she was acquitted. For example, if someone is acquitted of murder, and then later is alleged to have committed a different murder, the state may not be able to prosecute because the alleged act was "similar" to the one for which she was acquitted. I also don't think it's necessary to include that word because the clause prohibits prosecution for the same alleged act, not the same criminal charge. So a grand larceny charge would be for the same act as the grand theft charge, and would therefore be prohibited after acquittal on the grand theft charge.

Third, I'm also wary of including a prohibition against retrials after a conviction because it may prevent member states from vacating a conviction and granting a new trial when exculpatory evidence comes to light. In fact, my Habeas Corpus Act explicitly allows member states to vacate a conviction and grant a new trial, subject to a couple restrictions (the defendant if convicted again cannot receive a more severe sentence than before and any conditions of the original sentence that have been met must count toward the new sentence). However, you do have a point in that it may be possible for a member state to simply try someone again for the same act after a conviction, without vacating the original conviction, in an effort to add to the punishment. I'll consider adding language preventing a retrial after a conviction unless the original conviction is vacated and the original sentence invalidated, subject to prior international law (presumeably my Habeas Corpus Act will have passed by then).

Goobergunchia wrote:We suggest that the proposal be titled "Double Jeopardy Prohibition" or something else that is more descriptive than the incredibly bland "On _____" form. A proposal with an identical short title could require two trials to acquit any defendant.


I agree, Lord Evif; that's a valid point. (OOC: Also, that suggested title is 27 characters, which I think is within the character limit for proposal titles.) I'll make the appropriate change.

Alexandria Yadoru
Quelesian WA ambassador
"I hate mankind, for I think myself one of the best of them, and I know how bad I am." - Samuel Johnson

"Patriotism is your conviction that this country is superior to all other countries because you were born in it." - George Bernard Shaw
Political Compass | Economic Left/Right: -7.75 | Social Libertarian/Authoritarian: -10.00

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Linux and the X
Negotiator
 
Posts: 5442
Founded: Apr 29, 2006
Left-wing Utopia

Postby Linux and the X » Thu Feb 23, 2012 3:30 pm

Quelesh wrote:
Linux and the X wrote:However, we do not believe that someone should be free from retrial if jury tampering or perjury occurs, particularly if the individual is responsible for the problem.


Perjury and jury tampering are valid concerns, but I do not think that addressing those concerns requires double jeopardy. In most reasonable justice systems, perjury and jury tampering are serious crimes in themselves. In fact, a member state can make the lawful punishment for jury tampering equal to the punishment she could have received at the original trial had she been convicted. For example, if someone is tried for murder in a state that allows up to life imprisonment for murder, and is acquitted because she committed jury tampering, the sentence for jury tampering could be up to life in prison in her case. Though this is not what my own nation's justice system does, this would not be unreasonable, in my opinion.

And what happens if Alice committed the murder, but her friend Bob perjures himself, and she therefore is not convicted? Bob might have problems, if he's caught, but Alice is still safe from answering for her crime.
If you see I've made a mistake in my wording or a factual detail, telegram me and I'll fix it. I'll even give you credit for pointing it out, if you'd like.
BLUE LIVES MURDER

[violet]: Maybe we could power our new search engine from the sexual tension between you two.
Me, responding to a request to vote for a liberation: But... but that would blemish my near-perfect history of spitefully voting against anything the SC does!
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they/them pronouns

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Merfurian
Chargé d'Affaires
 
Posts: 449
Founded: Jan 25, 2012
Iron Fist Consumerists

Postby Merfurian » Sat Feb 25, 2012 7:28 am

This basically boils down to giving legal authority to the idea of ne bis in idem. It's quite essential, so we support. No discernible problems for us

Yours

Klause Uliyan

etc
Issued from the Desk of the Very Honourable and Most Loyal Doctor Jonas K. Lazareedes LLD PC FJSCU FPC, FPAC(CI)ACCA Presidential Counsel
Former Justice of the Supreme Court of the Union, Former President of Appeals Chamber I of an Autonomous Court of Appeal, Most Loyal Counsellor and Advisor to the President of the Federal Republic (Member of the Federal Privy Council) Ambassador to the World Assembly
NOTE: I am gay, and I have asperger syndrome. My social skills are rubbish.

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