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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.

England and Wales: Thousands Receive Posthumous Pardon for Homosexuality Convictions

(Feb. 23, 2017) Section 166 of the recently enacted Policing and Crime Act of England and Wales granted approximately 49,000 deceased gay and bisexual men a posthumous pardon for offenses they were convicted of under the old sexual offenses laws that had provided that homosexuality was a crime.  The Act also states that any living person who was convicted of these offenses may apply for a statutory pardon to remove the convictions from their records.  (Policing and Crime Act 2017, c. 3, LEGISLATION.GOV.UK.)

The law, referred to as the “Alan Turing law” after one of the most notable people to be convicted under the old provisions, grants posthumous pardons to men convicted of homosexuality offenses provided the following conditions are met:

  • the parties to the conduct were over the age of 16 years old and both consented; and
  • the offence is not an offence under section 71 of the Sexual Offences Act, which provides that sexual activity in a public restroom is a criminal offence.  (Policing and Crime Act, § 166.)

The offenses included under the Act, known during the time they were enacted as “unnatural offences,” are the offense of buggery under section 12 of the Sexual Offences Act 1956 and similar related offenses under historical acts such as An Act for the Punishment of the Vice of Buggery 1533 and similar acts.  (Sexual Offences Act 1956, c. 69, LEGISLATION.GOV.UK; An Act for the Punishment of the Vice of Buggery 1533, 25 Hen. 8 c. 6, 3 STATUTES OF THE REALM at 441, available at HATHI TRUST DIGITAL LIBRARY; An Act Against Sodomy 1548, 2 & 3 Edw. 6, c. 29, 4 Pt 1 STATUTES OF THE REALM at 72, available at HATHI TRUST DIGITAL LIBRARY; An Act for the Punishment of the Vice of Buggery 1562, 5 Eliz. 1, c. 17, 4 Pt 1 STATUTES OF THE REALM at 447, available at HATHI TRUST DIGITAL LIBRARY; Offences Against the Person Act 1861, 24 & 25 Vict. c. 100, LEGISLATION.GOV.UK.)

Alan Turing’s Case

Alan Turing, the namesake of the law, is considered to be the father of the computer and of artificial intelligence. He played a key role in breaking Nazi codes during World War II and was described by Winston Churchill as making “the single biggest contribution to the allied victory.”  (Ashley Cowburn, Theresa May Committed to Introducing ‘Alan Turing Law’ and Pardon Gay Men Convicted of ‘Gross Indecency,’ INDEPENDENT (London) (Sept. 21, 2016).)

Turing was convicted of gross indecency under section 11 of the Criminal Law Amendment Act 1885 after he acknowledged a sexual relationship with a male partner.  (Criminal Law Amendment Act 1885, 48 & 49 Vict. c.69, available at British Library website.) He pled guilty and received a sentence of one year of probation, during which time he was required to undergo hormonal treatment, which left him impotent. (B.J. Copeland, Alan Turing, ENCYCLOPAEDIA BRITANNICA (last updated Jan. 23, 2016).)  The conviction led to the revocation of his security clearance and left him unable to work for the United Kingdom’s Government Communications Headquarters; it also resulted in his being denied entry into the United States. Just two years after the conviction, he died in an apparent suicide after eating an apple poisoned with cyanide.  (Id.)  At the time of Turing’s death, suicide remained a criminal offense.  It was later decriminalized by the Suicide Act 1961.  (Suicide Act 1961, 9 & 10 Eliz. 2, c. 60, LEGISLATION.GOV.UK.)

Turing was pardoned in 2013 by the rarely used Royal Prerogative of Mercy after Ministers altered their stance that he had been rightfully convicted of a crime under the provisions of the time. (Copeland, supra; Alan Turing’s Trial Charges and Sentences, 31 March 1952, supra.)

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Indonesia: Asset Recovery Legislation Proposed

(Feb. 22, 2017) Indonesia’s Commission on Eradication of Corruption (Komisi Pemberantasan Korupsi, or KPK) and its Financial Transaction Reports and Analysis Center (Pusat Pelaporan dan Analisi Transaki Keuangan, or PPATK) are advocating that the legislature pass several anti-corruption laws.  (Anti-Graft Agency Pushes for Long-Delayed Asset Recovery Bill, JAKARTA GLOBE (last visited Feb. 16, 2017).)  One of the proposals is legislation on recovery of criminal assets.  Although it is listed in the national legislative program on the legislature’s website, no action has as yet been taken on the proposed law.  (Id.; RUU Tentang Perampasan Aset Tindak Pidana [Proposed Law on Recovery of Criminal Assets], Program Legislasi Nasional, No. 44, Dewan Perwakilan Rakyat [House of Representatives] website (last visited Feb. 16, 2017).)  According to Ahmad Badaruddin, the Chairman of the PPATK, Indonesia’s President, Joko Widodo, has already approved the idea of the asset recovery legislation.  (Anti-Graft Agency Pushes for Long-Delayed Asset Recovery Bill, supra.)  The Chairman of the KPK, Laode M. Syarief, said that the proposed law “is crucial.  We need to have the authority to seize or take over assets from corruption or money laundering. … If the bill is passed into law, it will greatly help the police, prosecutors, KPK and PPATK.”  (Id.)

Background on the Institutions

According to the mission statement on its webpage, the KPK’s purpose is to improve the efficiency and effectiveness of law enforcement and reduce corruption in Indonesia through coordination, supervision, monitoring, prevention, and prosecution.  (Visi KPK 2015-2019 [Vision of the KPK for 2015-2019 ], KPK website (last visited Feb. 21, 2017).)  The KPK was established by Law No. 30 of 2002.  (Undang-Undang Republik Indonesia Nomor 30 Tahun 2002 Tentang Komisi Pemberantasan Tindak Pidana Korupsi [Law of the Republic of Indonesia No. 30, 2002, Concerning the Commission on Eradication of Corruption] (Dec. 27, 2002), House of Representatives website.)

The PPATK’s website notes that it “is the central institution … which coordinates the implementation of the prevention and eradication of money laundering in Indonesia.”  (Sambutan Kepala PPATK [Message from the Head of PPATK], PPATK website, (last visited Feb. 21, 2017).)  The institution is governed by Law No. 8 of 2010.  (Undang-Undang Republik Indonesia Nomor 8 Tahun 2010 Tentang Pencegahan Dan Pemberantasan Tindak Pidana Pencucian Uang [Law of the Republic of Indonesia No. 8, 2010, Concerning Crime Prevention and Suppression of Money Laundering] (Oct. 22, 2010), House of Representatives website.)

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New Zealand: High Court Finds Megaupload Founder Eligible for Extradition

(Feb. 22, 2017) On February 20, 2017, the High Court of New Zealand affirmed the district court’s December 2015 ruling that Kim Dotcom and three other appellants are eligible for extradition to the United States. (Ortmann & Ors v United States of America [2017] NZHC 189; Press Release, High Court of New Zealand, Ortmann & Ors v United States of America [2017] NZHC 189 (summary of decision) (Feb. 20, 2017), Courts of New Zealand website.)

Background

Kim Dotcom (born Kim Schmitz) is the founder of the file-sharing website Megaupload.com, which was shut down by U.S. authorities in early 2012. Seven individuals and two corporations were “charged in the United States with running an international organized criminal enterprise allegedly responsible for massive worldwide online piracy of numerous types of copyrighted works through Megaupload.com and other related sites, generating more than $175 million in criminal proceeds and causing more than half a billion dollars in harm to copyright owners.” (Press Release, Federal Bureau of Investigation, Justice Department Charges Leaders of Megaupload with Widespread Online Copyright Infringement (Jan. 19, 2012).) The action related to Megaupload “is among the largest criminal copyright cases ever brought by the United States.” (Id.)

Dotcom is a citizen of Germany and Finland and was granted permanent residence status in New Zealand in 2010. New Zealand police arrested him and three other Megaupload employees in January 2012 at the request of the United States. The three men had been in New Zealand to attend Dotcom’s birthday party. The search warrants executed at Dotcom’s property at the time of his arrest were subsequently challenged in court, but were found to be legal by the Supreme Court. (Liam Hyslop, Kim Dotcom Mansion Raid Legal, Supreme Court Says, STUFF.CO.NZ (Dec. 23, 2014); Kim Dotcom & Ors v Attorney-General [2014] NZSC 199, NZLII website.)

The U.S. government sought extradition of Dotcom and his three co-accused under the Extradition Act 1999 (New Zealand Legislation website) and an extradition treaty between the U.S. and New Zealand.(Extradition (United States of America) Order 1970, New Zealand Legislation website.) On December 23, 2015, the District Court in Auckland ruled that the four men were eligible for extradition, finding that “the the US had a ‘large body of evidence’ which supported a prima facie case.” (Kelly Dennett, Kim Dotcom Loses Extradition Case, Files Immediate Appeal, STUFF.CO.NZ (Dec. 23, 2015).) Under section 30 of the Extradition Act 1999, the Minister of Justice must determine whether or not to surrender a person to the requesting country following a court determination that he or she is eligible for extradition. However, Dotcom and the three other men immediately filed appeals against the District Court’s decision, and the Minister of Justice, Amy Adams, noted that “[s]uch a decision would not arise until after the conclusion of any appeal of the legal finding that the respondents are eligible for extradition.” (Id.)

High Court Decision

The High Court stated that the United States is seeking extradition of the four appellants on 13 counts, which allege

conspiracy to commit racketeering (count 1); conspiracy to commit copyright infringement (count 2); conspiracy to commit money laundering (count 3); criminal copyright infringement by distributing a copyright work being prepared for commercial distribution on a computer network and aiding and abetting of criminal copyright infringement (count 4); criminal copyright infringement by electronic means and aiding and abetting of criminal copyright infringement (counts 5 to 8); and fraud by wire and aiding and abetting fraud by wire (counts 9 to 13).  (Ortmann & Ors v United States of Americasupra, at [2].)

The appellants’ appeal against the District Court decision raised more than 300 questions of law. (Id. at [9] & note 7.) One of the main issues in the case was whether “copyright infringement by digital online communication of copyright protected works to members of the public is a criminal offence in New Zealand under the Copyright Act.” (Summary of decision, supra, at 2.) The District Court had concluded that it was, and this was overturned by the High Court, meaning that the appellants “succeeded with one of the main planks of their case.” (Id.) However, the High Court found that

a conspiracy to commit copyright infringement amounts to a conspiracy to defraud and is therefore an extradition offence listed in the USNZ Treaty. Further, other extradition pathways are available for all counts because of their correlation to a number of serious crimes in the Crimes Act. These offences are deemed to be listed in the Treaty by a provision in the Extradition Act, subject to various criteria being met. (Id. at 3.)

The High Court agreed with the District Court that “the evidence relied on by the United States for the purposes of extradition does satisfy the prima facie case test against each appellant on each count.” (Id.)  It therefore ruled that the four appellants are eligible for surrender to the United States on all counts. (Id.)

Following the release of the High Court’s decision, Dotcom’s lawyer said that he would lodge an appeal with the Court of Appeal. Dotcom stated that he expected the case would be before the New Zealand courts for at least two more years. He said ”[w]e’re going to make clear that this is not a fraud charge, the indictment is not for fraud, it is for copyright infringement. …  The appeal can show general fraud status cannot be applied.” (High Court Upholds Kim Dotcom Extradition Decision, STUFF.CO.NZ (Feb. 20, 2017).)

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Burma: Investigation into Alleged Police Crimes Planned

(Feb. 22, 2017) On February 8, 2017, officials in Burma (also known as Myanmar), announced that there would be an investigation of alleged police actions, and possible serious crimes, against the Rohingya Muslims, an ethnic and religious minority population.  (Roseanne Gerin, Myanmar Investigation Commission Begins Fact-Finding Mission in Maungdaw, RADIO FREE ASIA (Feb. 10, 2017); Justin Cosgrove, Myanmar to Investigate Alleged Police Crimes Against Rohingya Muslims, PAPER CHASE (Feb. 14, 2017).)  Muslims comprise about 4.3% of the population in the predominantly Buddhist country.  (U.S.  Central Intelligence Agency, Burma: People and Society: Religion, WORLD FACTBOOK (last visited Feb. 15, 2017).)

Burmese officials have denied all allegations of wrongdoing by government security forces, stating that there has been a legally conducted counterinsurgency effort in the Rohingya region since nine police officials were killed in October 2016, during an attack on a security post.  (Cosgrove, supra.)  The Home Ministry of Burma has said that the inquiry would establish “whether the police forces have committed illegal actions including violations of human rights during their area clearance operations.”  (Id.)  The country’s Foreign Ministry has said that action will be taken against anyone found guilty of human rights’ abuses.  (Gerin, supra.)

U.N. Report on Treatment of Rohingyas

According to a report of the United Nations Office of the High Commissioner for Human Rights (OHCHR), “[s]ince 2012, incidents of religious intolerance and incitement to hatred by extremist and ultra-nationalist Buddhist groups have increased across the country.  The Rohingya and other Muslims are often portrayed as a ‘threat to race and religion.’  Against this backdrop, tensions have occasionally erupted into violence.”  (Interviews with Rohingyas Fleeing from Myanmar since 9 October 2016, REPORT OF THE OHCHR MISSION TO BANGLADESH (Feb. 3, 2017), at 5, OHCHR website.)  The report was based on interviews conducted with refugees from the Burmese state of Rakhine, which has been the home of a population of Rohingya Muslims.  The OHCHR noted that some Burmese citizens consider the group to be not truly Burmese, but Bengali.  (Id.)

The types of offenses reported in the OHCHR report include:

  • extrajudicial executions or other killings, including by random shooting;
  • enforced disappearance and arbitrary detention;
  • rape, including gang rape, and other forms of sexual violence;
  • physical assault including beatings;
  • torture, cruel, inhuman or degrading treatment or punishment;
  • looting and occupation of property;
  • destruction of property; and
  • ethnic and religious discrimination and persecution. (Id. at 40.)

The report went on to state that “[a]ll of the eyewitness testimonies the team gathered referred to violations allegedly perpetrated by either the Myanmar security forces … or by Rakhine villagers (either acting jointly with security forces or at least with their acceptance ).”  (Id. at 41.)

Comments from U.N. Special Advisor

Adama Dieng, the U.N. Special Advisor on the Prevention of Genocide stated on February 6, 2017, that the scale of the violence against the Rohingya community in Burma shows “a level of dehumanization and cruelty that is ‘revolting and unacceptable.”  (Violence in Myanmar’s Rakhine State Could Amount to Crimes Against Humanity – UN Special Adviser, UN NEWS CENTRE (Feb. 6, 2017).)  He added that “[i]f people are being persecuted based on their identity and killed, tortured, raped and forcibly transferred in a widespread or systematic manner, this could amount to crimes against humanity, and in fact be the precursor of other egregious international crimes. …  This must stop right now!”  (Id.)

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Indonesia: Court Finds Company Guilty of Starting Forest Fire

(Feb. 21, 2017) On February 7, 2017, the South Jakarta District Court issued a guilty decision against the company PT Waringin Agro Jaya (WAJ), which markets palm oil.  The company was found to have deliberately lit a fire to clear land in South Sumatra Province, leading to a forest fire.  WAJ was ordered to pay a fine of Rp466.5 billion (about US$35 million); approximately 37% of that fine is considered to be compensation for the over six square miles of land that were burned, and the remainder will cover rehabilitation costs.  (Hans Nicolas Jong, Government Wins in Forest Fire Case, JAKARTA POST (Feb. 9, 2017).)

The plaintiff in the case was Indonesia’s Ministry of the Environment and Forestry, which has won a number of court cases against businesses in recent years; however, in none of the cases has a company as yet paid a fine.  In the WAJ case, the Ministry had asked for a higher fine of Rp754 billion (about US$56.4 million).  (Id.)

The Ministry and Bambang Hero Saharjo of the Bogor Institute of Agriculture, who had been a forest-fire expert witness in the case, welcomed the decision.  Saharjo said that the judges were correct to hold WAJ liable and that the judges “showed support for the environment.”  (Id.)  On the other hand, according to the company’s attorney, M. Sidik Latuconsina, WAJ is planning to appeal the decision.  (Id.)

Background

The process of deforestation, often connected with forest and peatland fires, is considered a major environmental issue in Indonesia.  In 2015, uncontrolled fires resulted in widespread smog, considered to be a significant environmental disaster.  (Jong, supra.)  The fires and related haze caused economic losses equal to 1.9% of Indonesia’s national gross domestic product.  The damaging smog spread to Malaysia and Singapore.  (Haeril Halim & Hans Nicholas Jong, Indonesian Government Remains Vigilant on Forest Fires, JAKARTA POST (Jan. 24, 2017).)

The Ministry of the Environment and Forestry has encountered challenges in enforcing court verdicts against businesses.  According to Rasio Diho Sani, the director-general for law enforcement at the Ministry, enforcement is a lengthy process due in part to the need to wait for an official record of the judicial decision, which may take more than a year.  The Ministry has also pointed to the need for a standard enforcement mechanism and has asked the Supreme Court to issue a regulation on the matter.  Sani noted that a September 2015 final, binding decision against another palm oil company, found guilty of illegal burning in Aceh Province, has yet to be enforced.  (Jong, supra.)

In another environmental case, a company found to have caused damage on Belitung Island was ordered to pay damages more than three years ago but is negotiating the timetable for payment of the Rp31.5 billion (about US$2.36 million) fine.  Jasmin Ragil Utomo , the Ministry’s environmental dispute settlement director, said of that case that the company “asked to make payments over 15 years.  But we can’t allow that.”  (Id.)

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