Monthly Archives: March 2017

Steps to Establish a Connection between Your Military Service and Your Disability

Filing a claim with the Veterans Affairs (VA) for disability compensation for an illness or disability that resulted from your military service? In an ideal world, Houston area Veterans would be able to receive benefits from the VA simply and painlessly; unfortunately, VA disability benefits are quite complicated, the process can take a fair amount of time, and there is a lot of preparation involved.

Five Ways to Establish a Service Connection for Disability, Disease, or Illness

The VA has fairly stringent regulations regarding the establishment of a service connection for disabilities, diseases, and illnesses. To be clear, however, it’s important to note that “service connection” means that the disability was either developed or aggravated during active duty. In general, there are five ways that you can establish a service connection for your VA disability benefits claim. These methods include:

Direct Service Connection — A direct service connection occurs when there is clear evidence that the incident occurred while the veteran was in service. For instance, a Veteran is paralyzed from a back-breaking fall that occurred while he/she was in military parachute training. The Veteran’s disability is clearly connected to his/her military service. Sometimes, if your symptoms manifested before you were discharged, you may not need a medical opinion to establish a link between your service and your disability.

Presumed Service Connection — There are some disabilities, illnesses, and diseases that are “presumed” to be service connected, and the VA has compiled a long list of conditions that are presumed to be service connected during a certain date range. For instance, Veterans who were exposed to Agent Orange during the Vietnam War, and who now have Parkinson’s Disease, are presumed to have a service connection. Some other presumptive conditions include chronic illnesses, tropical illnesses, tuberculosis, multiple sclerosis, and Hansen’s disease, among others. Certain forms of cancer are also presumed to be service-connected in cases where the Veteran was subjected to radiation.

Pre-Existing Injury Aggravated by Military Service — For this service connection, the Veteran had a pre-existing injury that was made worse (aggravated) due to an event that occurred during his/her military service. The condition must have been reported in the Veteran’s entrance medical exam records, and there needs to be evidence that the condition worsened during his/her service connection.

Secondary Service Connection — When one service-connected disability is the cause of another disability, you may have a secondary service connection. The secondary disability doesn’t have to be service-connected, but you do need to show that it wouldn’t have occurred without the service-connected disability. For example, the famous case regards a WWII Veteran who had tuberculosis and was treated with a medicine known for causing hearing loss. The hearing loss occurred because of the service-connected tuberculosis, and so the hearing loss may be considered as a secondary service connection.

Service Connection due to Injury Caused by Treatment in the VA Health Care System — If your disability arose out of VA hospitalization, treatment, rehab, or therapy, then that disability is considered to be service connected.

Establishing a Service Connection for Post-Traumatic Stress Disorder (PTSD)

Post-traumatic stress disorder can manifest after your service, and this condition isn’t so black-and-white when it comes to a singular event that occurred during service. For these reasons, the VA has special rules for disability benefit claims involving PTSD. To establish a service connection for PTSD, you’ll need to:

Provide a statement regarding the traumatic event(s) that occurred during service

Have a diagnosis of PTSD

Get an opinion from a VA psychologist or psychiatrist that the stressor (traumatic event) was sufficient to cause PTSD

News Legal Mechanism of Extradition of Corruption Criminals in Ukraine

To create a legal mechanism of criminals’ extradition, first of all we need to know some definitions as corruption, criminals and offender to tailor the best legal plan before any actions.

By usage of non-correct definitions in many ratified laws of some States, conflicts in national and international laws may happen.
– Corruption is illegitimate use of public power to benefit a privet interest.
– Criminal means person who has committed a crime, or is in the habit of committing crimes.
– Offender means person who transgresses moral or civil law, it is quite legalistic violation.

By primary look at the meaning of the Criminal and Offender we may understand that criminal is always an offender, but an offender is not necessarily a criminal!

In the majority of States that have ratified anti corruption laws, law makers are mostly fighting against criminals not offenders.

To resolve these conflicts in national and international laws, we should consider the Roman and Anglo-Saxons law systems to create anti corruption law. Also in anti corruption laws we must define offenders’ actions and their punishments or penalties too.

The best definition for “corruption” in any anti corruption law may be:
Corruption is illegitimate use of public power to benefit a privet interest.

The expressed definition of corruption covers very vast areas and, how serious law makers of a state are ready to ratify anti corruption laws by this definition will depend on the transparency, effectiveness and honesty of the State system!

One of the international anti corruption law instrument is the United Nations Convention against Corruption (2003).

In chapter 4 article 43 points to the extradition of a criminal is a “must” and an offender is a “may”, this chapter clears why some corruption criminals escape from being held accountable.

One more point that blocks fighting against corruption is untouchablity of political office holders. No one must be untouchable and each one in any position may be questioned if he or she engages in corruption and should be held responsible for his or her actions.

Mostly corruption criminals, after violating the law move to another country to hide and avoid prosecution. In such situations the best solution is extradition of the corruption criminal.

Extradition is a mechanism of international judicial cooperation, by virtue of which through a formal request, one State obtains from another State the delivery of a person charged or convicted for an ordinary offense in order to judge the person in a penal court or to execute the imposed penalty.

Theoretically, corruption criminals’ extradition is very similar to any kind of extradition process.

In general, any extradition is governed by international treaties, bilateral or multilateral, enshrining the legality principle, “nulla extraditio sine lege” (“no extradition without a law”) a version of “nullum crimine nulla pena sine lege” (“no crime and no penalty without a law”).

Please be aware that, person wanted for political offenses may not be extradited. But, genocide, assassination of authorities and terrorism are not considered political offenses.

Any extradition will be admissible when:
* The State has competency and jurisdiction to try the criminal;
* The person has not been acquitted, convicted or pardoned;
* The prescription term has not expired in either State concerned;
* The penalty is not less than one year;
* The case is not handled by an exceptional court;
* The criminal is not of a military or religious nature, or related to politics, the press or opinion;
* The case has not been preferred ex parte, except in cases of rape;
* It is not related to violation of taxation or currency laws, unless it constitutes an ordinary crime;
* It is not related to a misdemeanor.

Extradition will not be granted if the corruption criminal in question may be considered as political or politically related.
The same principle will be applied if the extradition request is motivated by a criminal under ordinary law but has been presented in order to persecute or punish an individual for reasons of race, religion, nationality or political opinions.

Usually we have two kinds of extraditions:
1. Active extradition- When a State requests from another country the delivery of a corruption criminal who is found in that territory.

* Standard necessary documents for extradition of a corruption criminal in active extradition are 🙁 other documents may be requested according to States agreement):
– INTERPOL report informing the judicial authority that the corruption criminal has been found in a specified country;
– Final decision of the judicial authority requesting or approving the active extradition request and the creation of the extradition file;
– Police certificate and complaint laid by the general attorney;
– Record of opening of the investigation;
– Document testifying the corruption criminal’s absence or fugitive status and the respective search and arrest warrant;
– Charges laid order to stand trial, and conviction, depending on the stage of the proceedings;
– Evidence for the prosecution and for the defense;
– Proof of personal identity showing that the person sought is the person convicted or wanted for trial;
– Rules of domestic law and any applicable treaties;
– Report of the general attorney;
– Decision of the court, approving the extradition;
– Notice from the Minister of Justice.

2. Passive extradition- When a State receives a petition from another country that requests the delivery of a criminal who is found in our territory.

* General documents that must accompany the passive extradition request ( other documents may be requested according to States agreement):
– Copy of the conviction verdict, or the arrest warrant issued by the competent magistrate, with indication of the offense and the summons or declaration of fugitive status;
– The place and the date of the offense. Full copies of the legal text criminalizing the offense, the applicable penalty and applicable statute of limitations for the offense;
– Proof that the crime was committed;
– Evidence submitted by the prosecution and defense.

Please be noticed that, in any kinds of extraditions all documents must be translate to English or extraditing State language and officially legalized.

Also, all correspondents will be between the diplomatic representatives of the requesting State and Ministry of Foreign Affairs of the State which criminals located in.

Extradition of corruption criminals is important for a State because:
* we take back national material losses;
* criminals will be punished under law provisions;
* people will have trust in transparency, honesty and effectiveness of a the state.

The most important point to extradite criminal is time because criminals usually do their best to tie other countries for protection.

Criminals usually use asylum instrument as a common practice. But an asylum offered case may be block and finally rejected, if a criminal is suspicious or persecuted by other state.

Therefore, to prevent criminals asylum instrument access, Courts, Ministry of Justices, General Attorneys, Ministry of Foreign Affairs and Interpol quick action and coordination is very important, as the criminal should be under international persecution which it announced by the Interpol.

Extradition once granted may be revoked in case of error, or if the person extradited has not been removed by the authorized agent of the requesting State within thirty days, the person will be released and may not be arrested again for the same grounds.

Undertaking by the law requesting State:
Not to imprison or try the extradited corruption criminal for criminal other than the criminal for which extradition was granted and committed before extradition, unless the person freely agrees thereto, or unless the person remains at liberty in that State two months after acquittal for the crime for which extradition was granted, or fulfillment of the sentence imposed.
Not to increase the penalty for political, military or religious reasons.

To credit the extradited person with the time spent in detention during the extradition proceedings. Not to surrender the extradited person to a third State, and not to execute the person

Corruption criminals’ extradition is possible if it will be as an international mechanism between States. This mechanism may be as an international treaty that all countries of the world sign and ratify it in their national level. Other way, there are always States which have political opposition interest with the requesting State and corruption criminals use this point to escape the law.

About Paris Convention for the Protection of Industrial Intellectual Property

The substantive provisions of the Convention fall into three main categories: national treatment, the right of priority, common rules.

(1) Under the provisions on national treatment, the Convention provides that, as regards the protection of industrial property, each Contracting State must grant the same protection to nationals of other Contracting States that it grants to its own nationals. Nationals of non-Contracting States are also entitled to national treatment under the Convention if they are domiciled or have a real and effective industrial or commercial establishment in a Contracting State.

(2) The Convention provides for the right of priority in the case of patents (and utility models where they exist), marks and industrial designs. This right means that, on the basis of a regular first application filed in one of the Contracting States, the applicant may, within a certain period of time (12 months for patents and utility models; 6 months for industrial designs and marks), apply for protection in any of the other Contracting States. These subsequent applications will be regarded as if they had been filed on the same day as the first application. In other words, they will have priority (hence the expression “right of priority”) over applications filed by others during the said period of time for the same invention, utility model, mark or industrial design. Moreover, these subsequent applications, being based on the first application, will not be affected by any event that takes place in the interval, such as the publication of an invention or the sale of articles bearing a mark or incorporating an industrial design. One of the great practical advantages of this provision is that applicants seeking protection in several countries are not required to present all of their applications at the same time but have 6 or 12 months to decide in which countries they wish to seek protection and to organize with due care the steps necessary for securing protection.

(3) The Convention lays down a few common rules that all Contracting States must follow. The most important are:

(a) Patents. Patents granted in the different Contracting States for the same invention are independent of each other: the granting of a patent in one Contracting State does not oblige the other Contracting States to grant a patent; a patent cannot be refused, annulled or terminated in any Contracting State on the ground that it has been refused or annulled or has terminated in any other Contracting State.

The inventor has the right to be named as such in the patent.

The grant of a patent may not be refused, and a patent may not be invalidated, on the ground that the sale of the patented product, or of a product obtained by means of the patented process, is subject to restrictions or limitations resulting from the domestic law.

Each Contracting State that takes legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exclusive rights conferred by a patent may do so only under certain conditions. A compulsory license (a license not granted by the owner of the patent but by a public authority of the State concerned), based on failure to work or insufficient working of the patented invention, may only be granted pursuant to a request filed after three years from the grant of the patent or four years from the filing date of the patent application, and it must be refused if the patentee gives legitimate reasons to justify this inaction. Furthermore, forfeiture of a patent may not be provided for, except in cases where the grant of a compulsory license would not have been sufficient to prevent the abuse. In the latter case, proceedings for forfeiture of a patent may be instituted, but only after the expiration of two years from the grant of the first compulsory license.

(b) Marks. The Paris Convention does not regulate the conditions for the filing and registration of marks which are determined in each Contracting State by domestic law. Consequently, no application for the registration of a mark filed by a national of a Contracting State may be refused, nor may a registration be invalidated, on the ground that filing, registration or renewal has not been effected in the country of origin. The registration of a mark obtained in one Contracting State is independent of its possible registration in any other country, including the country of origin; consequently, the lapse or annulment of the registration of a mark in one Contracting State will not affect the validity of the registration in the other Contracting States.

Where a mark has been duly registered in the country of origin, it must, on request, be accepted for filing and protected in its original form in the other Contracting States. Nevertheless, registration may be refused in well-defined cases, such as where the mark would infringe the acquired rights of third parties; where it is devoid of distinctive character; where it is contrary to morality or public order; or where it is of such a nature as to be liable to deceive the public.

If in any Contracting State, the use of a registered mark is compulsory, the registration cannot be canceled for non-use until after a reasonable period, and then only if the owner cannot justify this inaction.

Each Contracting State must refuse registration and prohibit the use of marks that constitute a reproduction, imitation or translation, liable to create confusion, of a mark used for identical and similar goods and considered by the competent authority of that State to be well known in that State and to already belong to a person entitled to the benefits of the Convention.

Each Contracting State must likewise refuse registration and prohibit the use of marks that consist of or contain, without authorization, armorial bearings, State emblems and official signs and hallmarks of Contracting States, provided they have been communicated through the International Bureau of WIPO. The same provisions apply to armorial bearings, flags, other emblems, abbreviations and names of certain intergovernmental organizations.

Collective marks must be granted protection.

(c) Industrial Designs. Industrial designs must be protected in each Contracting State, and protection may not be forfeited on the ground that articles incorporating the design are not manufactured in that State.

(d) Trade Names. Protection must be granted to trade names in each Contracting State without there being an obligation to file or register the names.

(e) Indications of Source. Measures must be taken by each Contracting State against the direct or indirect use of a false indication of the source of goods or the identity of their producer, manufacturer or trader.

(f) Unfair competition. Each Contracting State must provide for effective protection against unfair competition.

The Paris Union, established by the Convention, has an Assembly and an Executive Committee. Every State that is a member of the Union and has adhered to at least the administrative and final provisions of the Stockholm Act (1967) is a member of the Assembly. The members of the Executive Committee are elected from among the members of the Union, except for Switzerland, which is a member ex officio. The establishment of the biennial program and budget of the WIPO Secretariat – as far as the Paris Union is concerned – is the task of its Assembly.

The Paris Convention, concluded in 1883, was revised at Brussels in 1900, at Washington in 1911, at The Hague in 1925, at London in 1934, at Lisbon in 1958 and at Stockholm in 1967, and was amended in 1979.

The Convention is open to all States. Instruments of ratification or accession must be deposited with the Director General of WIPO.

Intern or Employee For Your Organization

Court Holding: The court granted summary judgment to the employer-defendant concluding that under the eight-factor primary beneficiary test, the plaintiff was an intern – not an employee and, as such, was not entitled to wages pursuant to Fair Labor Standards Act (“FLSA”).

Employment Counsel: An internship can be unpaid when the vocational and educational benefits received by the intern outweigh the benefits received by the employer for the intern’s work. Thus, if the intern spends most of his/her time performing professionally relevant work, even if the employer also benefits from such work, the intern does not need to be paid. However, if the intern is performing menial services that do not provide true vocational training (for example, getting coffee, running errands, photocopying, data entry), it is likely the intern needs to be paid wages to comply with FLSA.

Prior to commencing any internship, the organization and intern should define the relationship – both for the benefit of the intern and the organization. Further, during the internship, the organization must be diligent to ensure that the intern is actually performing professionally relevant work and receiving benefit from the internship (beyond resume building).

Case Summary: The defendant, Gawker, was a media company that employed unpaid interns. Plaintiff, Aulistar Mark, was one of Gawker’s unpaid interns who argued that he was a Gawker employee under the Fair Labor Standards Act (“FLSA”) and entitled to minimum wage for his work.

In determining that Mark was properly classified as an intern instead of an employee, the court employed an eight factor “primary beneficiary” test under which an unpaid internship is considered legitimate if the educational benefits the intern receives from the internship outweigh his contribution to the employer.

Eight factors to help a court determine who is the primary beneficiary of the internship, with their application to this case, are as follows:

The understanding between employer and intern that there is no expectation of compensation: Mark had no expectation of compensation for the internship.

Does the internship provide training that is similar to the clinical and other hands-on training that would be provided in an educational environment? Mark received educational benefits in the form of opportunities to learn journalism skills that Gawker employees were expected to already know.

Does the internship count for academic credit? Yes, Mark earned academic credit.

Does the internship accommodate the intern’s academic commitments by corresponding to the academic calendar? Gawker accommodated Mark’s academic commitments.

Was the length of the internship sufficiently limited to the time it took to learn new skills? Mark’s internship only lasted 3 months and he was provided with beneficial learning experiences for the entire duration of his internship.

Does the intern’s work complement, rather than displace, the work of paid employees? The majority of Mark’s work was complementary.

Is there an understanding that there will be a paid position for the intern at the conclusion of the internship? There was no expectation of a paid position following Mark’s internship.

Was the intern the primary beneficiary under the totality of the circumstances? Under a totality of circumstances, Mark was properly classified as an unpaid intern because he received significant vocational benefits. Mentors edited his work, helped him publish a piece for his portfolio, and he received academic credit for his internship.