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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Italy: Mandatory Confiscation in Security Violation Ruled Unconstitutional

(Aug. 16, 2019) On March 6, 2019, the Italian Constitutional Court declared unconstitutional article 187-sexies of Legislative Decree No. 58 of 1998, which provides for the mandatory confiscation of the proceeds of an insider trading offense and the instruments used to commit it. (Decision No. 112 of March 6, 2019 (the Decision) (in Italian).)

Background of the Case

The law in question provided for the mandatory confiscation of not only the profit gained from committing the offense but also the products of the offense and the instruments used to commit it. If it was not possible to confiscate the products, article 187-sexies provided for the confiscation of their equivalent in money or value. (Decision, considerations of fact § 1.)

The underlying case dealt with a penalty issued on May 2, 2012, by the National Commission for Companies and Stock Exchange (CONSOB) for the administrative violation of abuse of confidential information prior to the public offer of securities in a company. (Considerations of fact § 1.1 & considerations of law § 4.3, para. 4.)

CONSOB imposed the confiscation of assets based not on the profit obtained by the violation but on the product of the crime, including the funds used to purchase securities. (Considerations of fact § 1.3.)

The referring judge argued that this confiscation lacked proportionality between the penalty imposed on the violator and the final public goal sought. The defect of lack of proportionality, according to the judge, violated the constitutional protection of the right of property and reasons of general interest that justify the measurement of the confiscation. (Considerations of fact § 1.4, paras. 1 & 4.)

Constitutional Provisions Involved

The Constitutional Court performed its review in light of, among others, articles 24, 111, and 117, first paragraph, of the Italian Constitution (English translation), which provide the right to

  • access courts of law for the protection of civil and administrative rights
  • legal defense
  • due process of law
  • an adversary proceeding
  • the reasonable duration of trials
  • be informed of charges in criminal proceedings
  • cross-examination
  • legal evidence
  • judicial review

The Court also based its decision on the primacy of EU legislation and international obligations over the national legislation in Italy, including article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, which establishes the constitutional right to a fair trial, and article 49, which establishes the principles of legality and proportionality of criminal offences and penalties. (Considerations of law § 1.6, paras. 5 & 6.)

Reasoning of the Court

The Court recalled that, in the underlying case, the offender was fined with a monetary penalty of €200,000 (about US$223,927), which was the total value of the shares acquired through the use of privileged information, of which only €26,580 (about US$29,760) represented a “profit.” The Court noted that the confiscated amount was about 13 times the amount of the profit, thus rendering the measure “punitive” and contrary to the constitutional guarantees at stake. (Considerations of law § 8.3.6, paras. 2 & 3.)

The Court considered the disproportionate confiscation measure in view of the accused’s constitutional right to property. (Considerations of law § 1.3, para. 2.) The Court mentioned its prior precedent against administrative penalties that are clearly disproportionate relative to the gravity of the offense (Considerations of law § 8, para. 2), which it noted impinge on the right of property of the offender (Considerations of law § 8.1, para. 1). The Court recalled that it has repeatedly held that administrative penalties that carry a “punitive” character are considered to be subject to the constitutional guarantees on criminal matters (i.e., no crime without a previous law; no reformatio in peius—prohibition of retroactive increased penalities; sufficient description of the conduct that is sanctioned; and retroactivity of the reformatio in mitius—ex post facto benefits for the convict). Also relevant for the Court was the constitutional principle of the need for an educational function of the penalty. (Considerations of law § 8.2.1, paras. 1–3.) The Court also made a reference to the Anglo-American concept of “punitive damages,” recalling that the imposition of foreign judicial decisions is also subject to the principle of proportionality. (Considerations of law § 8.2.4, para. 3.)

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New Zealand: Trusts Bill Passed

(Aug. 15, 2019) On July 24, 2019, the Trusts Bill was passed by the New Zealand Parliament. The Bill, which was introduced in August 2017, replaces the Trustee Act 1956 and Perpetuities Act 1964 and seeks to provide a “clear, modern statement of the law relating to trusts.” The Minister of Justice, Andrew Little, stated that the principal changes in the Bill include the following:

  • clarification of key features of a trust and the duties of trustees
  • clear rules about when trustees are required to provide information to beneficiaries so that beneficiaries can enforce their rights
  • practical and flexible trustee powers that allow trustees to manage and invest trust property in the most appropriate way
  • options for removing and appointing trustees without having to go to court in straightforward cases
  • modern dispute resolution procedures
  • permitting amendments to certain financial and commercial trusts to enable specified provisions of the Bill to not apply to those trusts.

The Bill is largely an update and restatement of the law related to trusts, which is contained in the two Acts referred to above as well as in various common law rules. Upon introducing the Bill, the then-Minister of Justice, Amy Adams, explained that the Bill would “make trust law easier to access and understand,” providing “better guidance for trustees and beneficiaries, and mak[ing] it easier to resolve disputes.” She also stated that the Bill was largely based on recommendations made by the New Zealand Law Commission, which conducted a project to examine the law of trusts between 2009 and 2013.

Trusts are a major aspect of the New Zealand legal system, with around 300,000 to 500,000 trusts operating in the country. One law firm, Minter Ellison Rudd Watts, stated that the Bill

will enhance accessibility to trust law by bringing fundamental principles and rules of trust law, which have been developed by the courts over centuries, into one piece of accessible legislation. The Act will also set out the core principles of trust law, provide default administrative rules for trusts, and provide mechanisms to resolve trust-related disputes.

The Act is not intended to be an exhaustive code, as the courts will continue to develop trust law in areas that are not covered by the Act.

The Bill will come into force 18 months after receiving royal assent, allowing existing trusts to adapt to the new law.

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Turkey: Istanbul Governorate to Enforce Movement Restrictions on Syrians Under Temporary Protection

(Aug. 14, 2019) On July 22, 2019, the Governorate of Istanbul issued a press release titled “Combating Irregular Migration” in Turkish and Arabic. The press release was directed at Syrians under temporary protection currently residing in Istanbul but who were assigned to provinces other than Istanbul when they were granted temporary protection status. The press release gave the Syrians under temporary protection notice that they must return to their assigned provinces by August 20, 2019, warning that those who did not voluntarily return would be removed to those provinces forcibly by law enforcement. In addition, regular checks for “transit permits” in all public transportation hubs would be made.

According to the United Nations High Commissioner for Refugees, there were more than 3.6 million Syrian refugees in Turkey as of February 2019. The number of Syrians under temporary protection officially assigned to Istanbul was cited as 547,479.

Basis for the New Policy

Turkey ratified the 1951 Refugee Convention in March 1962 and acceded to the Convention’s 1967 Protocol in July 1968. However, Turkey made a reservation to the Protocol that geographically limits the application of Convention rights to persons affected by events occurring in Europe. As a result, under international law, Turkey’s obligations toward non-European asylum seekers are limited to rights that can be derived from international and regional human rights instruments to which Turkey is a party. Under Turkish domestic law, the status of asylum seekers is regulated by the Law on Foreigners and International Protection of 2013 (LFIP), which is implemented by the Regulation on Temporary Protection of 2014 (RTP). The LFIP designates three different statuses of international protection—namely, “Convention refugee” (mülteci), “conditional refugee” (sartli mülteci), and “person under temporary protection” (gecici korunan).

“Temporary protection” is a sui generis status for asylum seekers who are not eligible for Convention refugee status but are nonetheless compelled to leave their country to which they cannot return and are seeking “urgent and temporary” asylum in Turkey in the context of a mass population movement. While persons under temporary protection still benefit from the principle of nonrefoulement, they are subject to a wide array of limitations to their freedoms of employment and movement within the country, compared to Convention refugees. According to provisional article 1 of the RTP, Syrian Arab Republic citizens, refugees, and stateless persons who arrive from the Syrian Arab Republic on and after April 28, 2011, individually or as part of a mass movement, are admitted to international protection only under the status of persons under temporary protection (persons admitted under this rule are generally referred to as “Syrians under temporary protection”).

The RTP regulates the rights and obligations of persons under temporary protection. Although the RTP provides for a framework for the hosting of persons under temporary protection in “temporary accommodation centers,” confronted with the vast number of asylum seekers coming in from Syria, the government adopted an approach that relied on the provision of services outside of camps by assigning registered Syrians under temporary protection to several provinces (in accordance with article 24 of the RTP) and enabling their access to certain municipal and provincial public services in those provinces.

According to article 33(2)(a) of the RTP, persons under temporary protection are required to stay in the provinces to which they are assigned. Persons under temporary protection who wish to travel to another province are required to obtain a “transit permit” (yol izin belgesi). Article 35 of the RTP provides that persons under temporary protection who are in violation of the rules of article 33 will be warned by the administration; those who persist in the violation may be forbidden to access benefits under the RTP other than education and emergency medical services, and their right to stay outside of temporary accommodation centers may be limited (art. 35(2) & (3)).

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New Zealand: Major Changes to Funded Family Care Policy Announced

(Aug. 13, 2019) On July 7, 2019, the New Zealand government announced several changes to the existing system for paying people who provide health and/or disability services to family members, known as the Funded Family Care policy.

The current funding arrangements for Funded Family Care are contained in the Funded Family Care Notice 2013, which was issued under section 88 of the New Zealand Public Health and Disability Act 2000 and forms part of a family care policy made under part 4A of that Act. Part 4A was inserted in 2013 by the New Zealand Public Health and Disability Amendment Act 2013. Part 4A

provides that the Ministry of Health and District Health Boards have family care policies allowing persons to be paid for providing health and/or disability services to family members. It also limits the ability for complaints to be made to the Human Rights Commission and the Courts regarding breaches of the Human Rights Act 1993 relating to family care policies.

The 2013 Notice

sets out the terms and conditions on which eligible adult disabled people are allocated Ministry of Health funding to employ certain family carers for the delivery of personal care and household management services.

An initial allocation of NZ$92 million (about US$60.9 million) over four years was provided in 2013 to fund the policy.

The 2013 amending legislation, policy, and funding allocation were introduced in response to the 2012 Court of Appeal decision in Ministry of Health v Atkinson & Ors [2012] NZCA 184, in which the Court

upheld the decisions of the Human Rights Review Tribunal and the High Court that the Ministry of Health’s policy of not paying family carers of adults with disabilities is unjustified discrimination on the basis of family status, which is prohibited under Sections 5 and 19 of the New Zealand Bill of Rights Act 1990 (NZBORA).

The policy was initially welcomed by many as a step in the right direction but has been criticized by family carers as unfair and impractical in several respects. In September 2018, the government announced that it was in the process of consulting and deciding on potential changes to the system, stating that

[t]here have been consistent calls for Part 4A to be repealed because it is discriminatory. In particular, Part 4A has been inconsistent with human rights legislation because it denies families the right to complain about breaches of their human rights relating to family care policies[.]

The changes to the policy announced in July 2019, which are expected to take effect in 2020 following the passage of relevant legislation, are

  • repeal of Part 4A of the New Zealand Public Health and Disability Act 2000
  • change to eligibility to allow:
    • spouses and partners to provide Funded Family Care to people with high or very high support needs
    • children and young people under the age of 18 with high or very high needs to receive Funded Family Care from resident parents or family members (who are over 18)
  • removing the requirement for an employment relationship between a disabled person and their resident family member under the Ministry of Health’s Funded Family Care policy
  • raise pay rates for funded family carers under the Ministry of Health’s Funded Family Care policy, to be consistent with the rates received by care and support workers.

The pay rates for family carers will increase from the minimum wage (currently NZ$17.70 per hour (about US$11.70)) to a rate of between NZ$20.50 and NZ$25.50 (about US$13.56 to US$16.87), on the basis of qualifications and experience. These are the same rates that currently apply following a 2017 pay equity settlement between the government and care and support workers in New Zealand’s aged and disability residential care and home and community support services.

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Guinea: Parliament Approves Civil Code That Would Legalize Polygamy

(Aug. 12, 2019) On May 9, 2019, a large majority of representatives in the National Assembly of Guinea voted in favour of a new Civil Code that would make monogamy the presumed form of marriage but would legalize polygamy. The vote was held only a few months after the Assembly’s last attempt was scrapped by Guinean president Alpha Condé, who announced his refusal to ratify the first modified Code on January 4, 2019.

Background

Although polygamy remains widespread in Guinea, the first planned revision of the Code met with fierce criticism from civil society groups claiming it amounted to an assault on women’s rights in the country. These groups especially objected to article 282 of the rejected Code, which left the choice of a monogamous or a polygamous marriage to the husband alone and held that, should he fail to make such a choice, the marriage would be presumed polygamous.

Provisions of the New Code

The new Code appears to have been tailored to alleviate these concerns. As under the rejected Code, a man in a polygamous marriage may take up to four wives. However, under the new law marriage is presumed monogamous “for all citizens of Guinea.”  For a couple to legally enter into a polygamous marriage, the groom must declare that he is opting for polygamy during the marriage ceremony, and he must receive the “explicit consent” of the bride. Some have applauded these “corrections”: one female representative in the Assembly celebrated that polygamy would be “exceptional” rather than common under the new law. The new Code has also been welcomed by those marginalized by the strict monogamy of the old one, which prohibited polygamy and made its practice punishable by a prison term of between five and ten years.  This prohibition, first established in 1968, was widely resented for being out of step with cultural norms in Guinea, such that its penal provisions became “dead letter” (lettre morte)—that is, they were virtually never applied. In formally prohibiting polygamy, however, the law denied recognition to the many secondary wives entering into customary polygamous marriages illegally. With polygamy legalized, secondary wives stand to gain formal civil status and all the attendant civil rights of married women.

Reactions to the New Code

Mohamed Lamine Fofana, minister to the presidency in charge of relations between institutions, noted that the changes adopted by the Assembly met the expectations of President Alpha Condé. According to Fofana, in opposing the first version adopted by the Assembly, the President merely wished “to provide a framework for polygamy that grants women the possibility of choosing the matrimonial regime that they desire.”

The new legislation, however, is not without its detractors. Some conservatives oppose it on the grounds that the newly introduced changes fail to adequately reflect the culture and mores of Guinea or meet what they consider to be the prescriptions of Islam, the country’s dominant religion. One representative went as far as to dismiss the “corrected” legislation as a gesture meant to “appease Westerners.”  On the other end of the spectrum, many feminists remain wary. Some see the “explicit consent” of the wife required by the new Code as meaning very little in a society where polygamy is firmly entrenched and where the pressure placed on women to resign themselves to polygamous marriages is enormous. The director of the Guinea branch of the NGO Wafrica stated that she accepted the new legislation, but only “by default,” because, while improving upon the Code adopted by the Assembly in December 2018, the new legislation still represents a step backward from the old Civil Code.

Prepared by Henri Barbeau, Law Library intern, under the supervision of Nicolas Boring, Foreign Law Specialist.

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