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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: Legislation Implementing the EU Criminal Mutual Assistance Convention

(Aug. 26, 2016) On August 5, 2016, new legislation ratifying and implementing the European Union Convention on Mutual Assistance in Criminal Matters, in particular concerning extradition, entered into effect in Italy. (Law No. 149 of July 21, 2016, Ratifying and Implementing the Convention on Mutual Assistance in Criminal Matters Between Member States of the European Union of May 29, 2000, and Delegating Powers to the Government for Its Implementation … (Law No. 149), GAZETTA UFFICIALE, No. 181 (Aug. 4, 2016) (in Italian); Mutual Assistance in Criminal Matters Between Member States [of the EU] (2000), EUR-LEX.)  Law No. 149 also delegates powers to the Executive Branch to amend Book XI of the Criminal Procedure Code on the execution of judicial decisions, amends provisions on extradition, and sets deadlines in connection with coercive measures.

The Ministries of Justice, Foreign Affairs, International Cooperation for European Matters, and Economy and Finance must adopt legislative decrees for the implementation of the Convention that must then be sent to the Italian Parliament for the verification of the financial aspects of this implementing legislation. (Law No. 149, art. 3(2).)

Amendments to the Code of Criminal Procedure Concerning Judicial Cooperation

The Law includes several amendments to the Italian Code of Criminal Procedure to facilitate international cooperation in criminal matters. According to the amendments, the EU Convention on Mutual Assistance in Criminal Matters and the Treaty on the Functioning of the EU govern the relations between Italy and other EU Member States concerning international extradition requests, the effects of foreign criminal decisions, the enforcement of Italian criminal decisions overseas, and other relations with foreign authorities related to the administration of criminal justice.  (Id. art. 4(1)(a)(1); Consolidated Version of the Treaty on the Functioning of the European Union, 2012 O.J. (C 326) 47.) In relations with non-EU Member States, the provisions of the Italian Code of Criminal Procedure, Book XI on the execution of judicial decisions, apply.  (Id. art. 4(1)(a)(2); Codice di Procedura Penale [Code of Criminal Procedure] (updated to July 21, 2016), ALTALEX.)

Based on the international reciprocity principle, the Italian Ministry of Justice may reject requests for judicial assistance, extradition, or other matters related to the administration of criminal justice. (Id. art. 4(1)(b).)  The power to reject requests for international judicial assistance must be exercised in accordance with Italian treaties with EU Member States and, in the case of non-EU Member States, based on potential danger to national sovereignty or security or Italy’s essential interests.  (Id. art. 4(1)(c)(1) & art. 4(1)(d)(1).)

Judicial Assistance Requests

Requests for judicial assistance related to acquiring evidence or seizing assets must be transmitted to the Attorney General. (Id. art. 4(1)(c)(2).)  When the request involves evidence to be presented before a judge or when the authorization of a judge is legally required, the Attorney General must submit the request to the competent judge promptly.  (Id. art. 4(1)(c)(3).)  The Italian Court of Cassation (Italy’s highest court) has the power to decide conclusively any conflicts that may arise during proceedings on executing international judicial assistance requests.  (Id. art. 4(1)(c)(4).)

The Italian Attorney General is empowered to agree with the competent authorities of other EU Member States that joint investigation teams be constituted. (Id. art. 4(1)(c)(10).)  The investigative reports produced by joint investigation teams are to be considered fully valid in Italy as long as there has been no violation of Italian law in preparing them.  (Id. art. 4(1)(c)(12).)

When a request for judicial assistance relates to the summons of a witness, an expert, or the accused before a foreign judicial authority, the Minister of Justice may authorize such summons, provided that the foreign state offers immunity to the person summoned. (Id. art. 4(1)(c)(14).)  If the request involves the temporary transfer for investigative purposes of a person who is detained or incarcerated, then the Minister of Justice must proceed by requesting the opinion of the respective Italian judicial authority.  (Id. art. 4(1)(c)(14).)  The participation in a hearing by an accused, witnesses, or experts who are located outside Italy and may not be transferred to Italy may take place through remote connections in accordance with the Italian Code of Criminal Procedure.  (Id. art. 4(1)(c)(9).)

Extradition of Italian Citizens or Residents Overseas

A request for Italian citizens or residents to be extradited must be submitted to the Attorney General, and his or her decision on whether or not to comply with that request is subject to appeal. (Id. art. 4(1)(d)(3).)  The Attorney General must interrogate the person subject to the extradition proceedings and may also request from the foreign requesting authorities all necessary documentation and information.  (Id. art. 4(1)(d)(4).)  In the absence of an international treaty applicable to a specific case, appellate courts must approve the extradition when serious indications of guilt or a final conviction exist, and no other final decision has been issued in Italy in criminal proceedings against the same person based on the same grounds.  (Id. art. 4(1)(d)(6).)

The time for delivery of a person subject to extradition is fixed at 15 days, which may be extended to 20 days depending on the circumstances. (Id. art. 5(2).)  Extradition measures become null when the Ministry of Justice’s decision to grant the extradition of a person is not complied with within three months.  (Id. art. 5(3).)  An administrative judge may always suspend decisions issued by the Ministry of Justice during extradition procedures.  (Id. art. 5(2) & (3).)

The Ministry of Justice may also reject extradition requests when the request may prejudice the sovereignty, security, or other essential interests of the state or when it is contrary to the state’s fundamental legal principles, and the competent judicial authority is bound to respect such principles. (Id. art. 4(1)(d)(8 &9).)

Periods of preventive detention undergone abroad may be computed for purposes of extradition procedures. The request for an extension of the term within which the accused must be extradited must be approved by a judicial decree, which may also order the preventive custody of the accused.  (Id. art. 4(1)(d)(10-11).)  The Law also allows for reparations for damages suffered in cases of unjust detention abroad during extradition procedures.  (Id. art. 4(1)(d)(13).)

Recognition of Foreign Criminal Decisions

The appellate court that renders a decision recognizing the execution of a foreign criminal decision must also establish the penalty that must be enforced in Italy. To that effect, the appellate court must convert the penalty established in the foreign decision into one of the penalties established by Italian law for the same facts; the penalty thus determined may not be more serious than that established in the foreign decision.  (Id. art. 4(1)(e)(3).)  If the penalty is conditionally suspended or if the convicted person is conditionally released in the State in which the decision was originally issued, then the Italian appellate court must also conditionally suspend the penalty or conditionally release the convicted person.  (Id.)

The Ministry of Justice must ensure compliance with the conditions required in certain cases for the enforcement in Italy or abroad of decisions whose recognition has been requested, provided that such decisions are not contrary to fundamental legal principles of the state. (Id. art. 4(1)(e)(4).)  Decisions on the recognition of foreign decisions to be enforced in Italy must be adopted “with the utmost urgency,” ensuring their timeliness and effectiveness.  (Id. art. 4(1)(f)(5).)  Decisions on recognition may be judicially challenged without suspending their enforcement, save in specific cases.  (Id. art. 4(1)(f)(7).)

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South Africa: Constitutional Court Confirms Right of a Child not to be Detained Except as a Measure of Last Resort

(Aug. 26, 2016) On August 11, 2016, South Africa’s Constitutional Court found unconstitutional the arrest and detention of a 15-year-old child by the police and upheld her claim for damages for wrongful arrest and detention against the Minister of Safety and Security.  (The Right of a Child Not to Be Detained Prevails, BUSINESS DAY LIVE (Aug. 11, 2016); Michell Joyce Raduvha v. Minister of Safety and Security, CCT 151/15 (Aug. 11, 2016), Constitutional Court of South Africa website.)

Background

The applicant was arrested without a warrant for obstruction of justice when she physically interfered with the police after they attempted to arrest her mother in the family home, while her father was also present, in response to “a complaint of contravention of a protection order” that had been issued against the mother.  (Michell Joyce Raduvha v. Minister of Safety and Security, ¶ 7.)  Both the applicant and her mother were subsequently arrested, detained for 19 hours at a nearby police station, and released with a warning.  (Id.)  While the government did not pursue any charges against them, they each instituted civil claims for “unlawful arrest and detention, estimated future medical expenses, legal expenses, general damages and contumelia (insult and scorn).”  (Id. at ¶ 8.)

All previous judicial venues had sided with the police.  The South Gauteng High Court, the court of first instance, found the arrest and detention legal and dismissed the child’s claim.  (Id. ¶ 1.)  The Court found that the arrest and detention of the applicant were justified given the fact that she intentionally obstructed the police, who were trying to arrest her mother, and that that action met the jurisdictional requirement under the Criminal Procedure Act, which states that “[a] peace officer may without warrant arrest any person … who wilfully obstructs him in the execution of his duty.”  (Id. ¶ 12; Criminal Procedure Act (CPA) 51 of 1977, § 40(1)(j) (May 6, 1977),  Pretoria University website.)  The girl’s appeal to the Full Court was unsuccessful, and the Supreme Court of Appeal declined to hear the case, in essence upholding the lower courts’ decisions.  (Michell Joyce Raduvha v. Minister of Safety and Security, ¶ 12.)  This prompted her to seek leave to appeal to the Constitutional Court.

The Constitutional Court Case

The applicant’s case was built on two main arguments.  The first noted that the power of the police under section 40(1) of the CPA is discretionary and that the police officers were “required to consider the prevailing circumstances and to decide if they justified a summary arrest.”  (Id. ¶ 16.)  The police failed to exercise their discretion and to recognize that “the arrest was neither necessary nor justified.”  (Id. ¶¶ 16 & 40.)

The second contended that the arrest was a violation of the applicant’s rights as a child under the 1996 Constitution.  The Constitution states, “[a] child’s best interests are of paramount importance in every matter concerning the child,” and the applicant argued that “the police officers failed to give effect to the constitutional injunction.”  (Id. ¶ 17; Constitution of the Republic of South Africa, No. 108 of 1996 (in force on Feb. 4, 1997), § 28(2), South African Government portal.)  In addition, the Constitution states, “[e]very child has the right … not to be detained except as a measure of last resort … .“  (Constitution of the Republic of South Africa, § 28(1)(g).)  The plaintiff argued that her arrest was not a measure of last resort because she could have been left in the custody of her father, and it was therefore a violation of the Constitution.  (Michell Joyce Raduvha v. Minister of Safety and Security, ¶ 19.)

The Court found that given that an arrest is “a drastic invasion of a person’s liberty and an impairment of their rights to dignity, both of which are enshrined in the Bill of Rights,” the lower courts should have evaluated the evidence before them to determine whether the facts justified the arrest, which they failed to do.  (Id. ¶¶ 43 & 45.)  The Court further found that, because the applicant was a child, in addition to meeting their jurisdictional standard under section 40 of the CPA, the police officers were required to give her best interest paramount importance.  (Id. ¶ 48.)  The Court stated that the police:

did not consider the crucial facts that she was no danger to them; that they could have handled or subdued her with ease; that she did not try to run away from them; that she was not causing any physical harm to them; that she was at or near her parental home and, importantly; that her father was present with them. No doubt such an approach to an arrest of a minor is incompatible with section 28(2). If the police officers had considered the applicant’s best interests, there would have been no reason for them to arrest her. They could have resorted to section 38 of the CPA, by either issuing a summons, a written notice or, as her father was present, leaving her in his custody with instructions for him to bring her to court. It follows that the applicant’s arrest is inconsistent with the Constitution and therefore unlawful.  (Id. ¶ 52.)

The Court further noted:

Was the applicant’s detention in the circumstances of this case justifiable as a measure of last resort? Certainly not. This is because: the applicant was arrested at her parental home in the presence of both her parents and, importantly, her father was available and willing to take her into his custody; nothing prevented the police officers from leaving the applicant in the custody of her father with appropriate instructions to ensure her appearance in court; and significantly, the police officers conceded that she was not a flight risk.  (Id. ¶ 70.)

The Court held that “both the applicant’s arrest and detention were in flagrant violation of her constitutional rights in sections 28(2) and 28(1)(g) and thus unlawful.”  (Id. ¶ 71.)

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Uruguay: Arbitration Panel Affirms Enforcement of Anti-Tobacco Legislation

(Aug. 26, 2016) On July 8, 2016, an International Centre for Settlement of Investment Disputes (ICSID) arbitration panel, meeting in Washington, D.C., decided an arbitration case filed by Philip Morris International (PMI) against the government of Uruguay in which PMI sought compensation for economic damages as a result of Uruguay’s enforcement of its anti-tobacco laws. (El Estado de Uruguay Ganó el Juicio que le Inició Philip Morris por su Política Antitabaco, INFOBAE (July 8, 2016).)

Through Decree 268/2005, Uruguay became the first country in the world to impose a ban on smoking in public spaces. (Decreto 268/2005 Se eliminan “Areas de Fumadores” en Restaurantes, Bares y Lugares de esparcimiento, Ministerio de Salud Pública, Ministerio de Educación y Cultura, Ministerio de Vivienda, Ordenamiento Territorial y Medio Ambiente (Sept. 5, 2005) NORMATIVA Y AVISOS LEGALES DEL URUGUAY.) Uruguay has also raised taxes on tobacco products and required businesses to include warning signs and graphic images, including the depiction of diseased lungs and rotting teeth, on cigarette packages. In addition, it has banned the use of the words “light” and “mild” from cigarette packaging in order to discourage smokers from believing that smoking those cigarettes is less harmful to one’s health. (Ley Nº 18.256 Control del Tabaquismo, (Mar. 10, 2008) NORMATIVA Y AVISOS LEGALES DEL URUGUAY.)

PMI had argued that Uruguay’s measures violated a bilateral investment treaty between Uruguay and Switzerland, but the ICSID rejected this argument.  According to President Tabaré Vazquez, the adoption of health protection measures aimed at regulating tobacco use and protecting Uruguayan people’s health has been recognized by the ICSID decision as the exercise of the legitimate power of a sovereign country to adopt measures safeguarding public health. (El Estado de Uruguay Ganó el Juicio que le Inició Philip Morris por su Política Antitabaco, supra.)

In its July 8, 2016 decision, the ICSID dismissed PMI’s demand for smoking regulations to be repealed or not to be applied to the PMI, or, as a last resort, for compensation for damages to be paid to the company in the amount of 22 million dollars. Instead, the ICSID ordered PMI to pay Uruguay seven million dollars as a refund for legal fees arising from the litigation. (Id.)

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Italy: Legislation on Local Government in Friuli-Venezia Giulia Region

(Aug. 25, 2016) On August 23, 2016, new legislation permitting Italy’s Friuli-Venezia Giulia Region (F-VGR) to create new local government entities called “metropolitan cities” entered into effect. (Constitutional Law No. 1 of July 28, 2016, Amending the Special Statute of the Friuli-Venezia Giulia Region, Regulated by Constitutional Law No. 1 of January 31, 1963, Concerning Local Entities, the Electors in Regional Elections, and Popular Initiatives (C. L. No. 1, 2016), GAZETTA UFFICIALE (G.U.), No. 184 (Aug. 8, 2016), NORMATTIVA (in Italian).)

Significance of Friuli-Venezia Giulia Region

The territory of Italy is divided into 20 regions and further into provinces and municipalities. Five of the regions, including F-VGR, are considered “autonomous.” (Regions of Italy in Map, MAPS OF THE WORLD (last visited Aug. 25, 2016).)  The F-VGR was first designated as an autonomous region under Constitutional Law No. 1 of 1963.  (Constitutional Law No. 1 of January 31, 1963 (C.L. No. 1, 1963), G.U. No. 29 (Feb. 1, 1963), art. 1, NORMATTIVA .)

The region enjoys a key location within Italy as an important connecting route between the eastern and western areas of southern Europe and recently has figured as part of the migration route taken by migrants from the Maghreb and elsewhere in North Africa to northern Europe. (Friuli Venezia Giulia, LIFE IN ITALY (June 1, 2012); Programma Immigrazione, REGIONE AUTONOMA FRIULI-VENEZIA GIULIA REGION (last visited Aug. 25, 2016).)

Creation of Metropolitan Cities Within the F-VGR

Constitutional Law No. 1 of 2016 broadens the scope of the regional authorities’ power to legislate the creation of new “metropolitan cities” (Citta’ metropolitane) in the autonomous F-VGR, supplementing their power to establish regular new cities (communi). (Id. art. 2.)  Being designated a “metropolitan city” means that more financial resources and a larger political role at the regional level are accorded to this new category of urban administration.

The Law also authorizes the central government to delegate powers to metropolitan cities in addition to the existing powers that may be delegated to the region, provinces, and regular cities. (Id. art. 3.)  The revenues of metropolitan cities are to be determined by local laws.  (Id. art. 7.)  Under the amendment, the Regional Council may assign annually a quota of the region’s revenue to metropolitan cities.  (Id. art. 8.)  The new legislation states that all cities, including metropolitan cities, have their own administrative powers and also enjoy the administrative powers granted by national or regional laws.  (Id. art. 4.)

Other Features of the Amendment

The amending Law modifies the minimum age for eligibility to become a member of the Regional Electoral College from 25 years to “the age of majority,” that is 18 years of age. (Id. art. 5.)  It also reduces the minimum number of citizens’ signatures required for a legislative initiative from 15,000 to 5,000.  (Id. art. 6.)

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Venezuela: Prohibition of Use of Cellular Phones and Internet by Inmates

(Aug. 25, 2016) The Venezeulan Congress recently passed the Law Regulating the Use of Cellular Phones and the Internet Inside Penitentiaries, prohibiting the use of cellular phones and the Internet in prisons. The Law imposes a penalty of three to five years of imprisonment on anyone who introduces cellular phones or Internet-ready devices in prisons. The penalty increases to four to six years if those devices were made available by officials or public employees. (Gaceta Oficial: Ley que Prohíbe Uso de Celulares e Internet en Cárceles, EL UNIVERSAL (July 19, 2016); Ley que Regula el Uso de la Telefonía Celular y la Internet en el Interior de los Establecimientos Penitenciarios, GACETA OFICIAL No. 6.240 Extraordinario (July 15, 2016).)

The Law is designed to prevent the planning, direction, and perpetration of crimes committed from inside prisons through the use of cellular phones, the Internet, and any voice and data services offered by telecommunications companies allowing coordination and communication with other criminals in the streets. (Id. art. 1.) The Law will apply to all penitentiaries with closed systems, holding inmates already convicted of crimes and those awaiting sentencing. (Id art. 2.)

In order to secure means of external communication for the inmates, penitentiaries throughout the country will install public land-line phones. (Id. art. 7.) The Ministry of Penitentiary Services will also install devices that will block telecommunications signals without affecting the communities neighboring prisons. (Id. arts. 3 & 4.)

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