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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.

Estonia: Court Confirms Russian Not a School Language

(Aug. 29, 2016) On August 26, 2016, an Estonian second instance Circuit Court, whose jurisdiction includes the capital city of Tallinn, confirmed the legality of a decision issued by a lower court earlier this year to reject consideration of a complaint submitted by the parents of two Tallinn city high school students objecting to the use in their schools, whose student bodies are predominantly ethnic Russians, of the Estonian language as the language of instruction. The original court decision cited the 2014 ruling of the State Court of Estonia (the highest court in the country) under which the local administration and school boards cannot appeal government resolutions concerning the choice of language of instruction. (Court Confirmed Ban on Teaching in Native Language in Two Russian High Schools, POSTEMEES.EE, (Aug. 26, 2016) (in Russian).) Fifteen similar cases were reviewed by different Estonian courts in the last three years with the same result. (Estonian Court Confirmed the Ban on Teaching in the Russian Language in Russian Schools, NEWSRU.COM (Aug. 26, 2016) (in Russian).)

In 2015, school boards of several high schools where the majority of students are ethnic Russians and native Russian speakers submitted a petition to the Estonian Government requesting permission to conduct instruction in the Russian language in all subjects. The petition was supported by the Tallinn City Council but rejected by the central government. (Id.)

The petition was based on a provision of the Estonian Basic Schools and Upper Secondary Schools Act of 2010, which gives school boards and local administrations some flexibility in selecting other than the Estonian language as the language of instruction in a municipal school. While the Law requires schools to conduct at least 60% of education in Estonian and provides for varied opportunities for non-native Estonian speakers to learn the Estonian language, it allows for some exemptions under which an entire school or particular classes can be taught in another language. Such permission can be granted by the national government to school boards and local administrations on a case-by-case basis. (Basic Schools and Upper Secondary Schools Act, art. 21, RIIGI TEATAJA I [OFFICIAL GAZETTE] 2010, No. 41, item 240.) This rule is based on a constitutional provision that states, “[t]he language of instruction in national minority educational institutions shall be chosen by the educational institution.” (Constitution of the Republic of Estonia (June 28, 1992, in force on July 3, 1992), art. 37, Office of the President website.) However, the same article of the Constitution states that “[t]he provision of education shall be supervised by the state,” and that norm serves as the basis for the government intervention in the matter. (Id.)

Reportedly, the Estonian government is active in implementing a language policy aimed at avoiding the use of any language other than Estonian. Since 2004, the National Language Inspection (Keeleinspektsioon), a government agency within the Ministry of Education with the responsibility to ensure proper implementation of legislation regulating the use of the Estonian language, has fined teachers whose knowledge of the Estonian language is deemed to be wanting. (Estonian Court Confirmed the Ban on Teaching in the Russian Language in Russian Schools, supra). It was also reported that the hourly wages of municipal employees vary depending on their Estonian language skills. (Salary of Hospital Personnel Who Do Not Speak Estonian Is Lower than that of Their Peers, NEWSRU.COM (Feb. 11, 2015) (in Russian).)

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Indonesia: Regulation on Shell Companies Issued

(Aug. 29, 2016) On August 19, 2016, Indonesia’s Ministry of Finance issued a regulation designed to support the tax amnesty program already adopted by the House of Representatives at the end of June under Law No. 11 on Tax Forgiveness. The amnesty program is aimed at encouraging the repatriation of Indonesian assets from abroad. (Ayomi Amindoni, Govt Issues Rule on Shell Companies, Aims for Asset Repatriation, JAKARTA POST (Aug. 22, 2016); Constance Johnson, Indonesia: Tax Amnesty Passed, GLOBAL LEGAL MONITOR (July 6, 2016); Law No. 11 of 2016 on Tax Forgiveness, LEMBARAN NEGARA REPUBLIK INDONESIA [GAZETTE OF THE REPUBLIC OF INDONESIA], No. 131, 2016, (in Indonesian).)

The new regulation focuses on Indonesian holdings in foreign special purpose vehicle (SPV) companies. According to Sri Indrawati, the Minister of Finance, it is hoped that holders of assets in SPVs will join the tax amnesty program to take advantage of the offer of exemptions from value-added tax for those who move their assets and businesses back to Indonesia before the end of the year.  She suggested that “taxpayers are expected to declare or repatriate their assets through the overseas SPV companies, as well as shift their business base to Indonesia.”  (Amindoni, supra.)

The Ministry had previously issued several regulations to implement other aspects of the Law on Tax Forgiveness. Regulation 118, for example, is on procedures for the tax amnesty, while Regulation 122 permits the transfer of assets into forms such as gold bars. ( Id.; Regulation No. 118/PMK.03/2016 on the Implementation of Law No. 11 of 2016 on Tax Forgiveness (July 15, 2016), Directorate-General of Taxation of the Ministry of Finance website; Regulation No. 122/PMK.08/2016 on Procedures for the Transfer from Abroad of Taxpayer Assets and Their Placement Outside the Financial Market for Tax Forgiveness (Aug. 8, 2016), PAJAK ONLINE.COM (both in Indonesian).)

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Japan: Act on Specified Commercial Transactions Amended

(Aug. 29, 2016) An amendment to Japan’s Act on Specified Commercial Transactions (No. 57 of June 4, 1976, Japanese Law Translation) was promulgated on June 3, 2016.  (Act No. 60 of 2016, KANPO (June 3, 2016) (in Japanese).)  Most of the amended provisions will become effective within 18 months of the promulgation date.  (Id., Supp. Provisions, art. 1.)

The Act aims to protect the interests of consumers and facilitate appropriate and smooth distribution of goods and provision of services in specified commercial transactions.  The specified commercial transactions include transactions arising from door-to-door sales, mail order sales, telemarketing sales, and multilevel marketing transactions, among other transactions defined in the Act.  (Act on Specified Commercial Transactions, art. 1.)  The major points of the amendment are as follows.

  1. Prohibiting directors of suspended businesses as defined under the Act from operating the same type of business by establishing new entities:

There are persons who reestablish illegal businesses, after their original businesses have been sanctioned, by the creation of a new business entity. The persons can carry on the same illegal practices until the new entity itself is sanctioned.  (Bill to Amend the Act on Specified Commercial Transactions (Bill Summary), Consumer Affairs Agency (last visited Aug. 26, 2016) (in Japanese).)  The amendment prohibits directors of sanctioned entities from operating the same business by establishing new entities or other entities.  (Act on Specified Commercial Transactions, as amended by Law No. 60 of 2016, arts. 8-2, 15-2, 23-2, & 58-13-2.)  To find such violations, the government’s authority to investigate businesses is also enhanced.  (Law No. 60 of 2016, art. 66.)

  1. Enabling punishment of businesses that do not have known addresses:

To effectuate a punishment under the Act, the government must send a written decision to the business. However, some online businesses do not disclose their physical addresses.  (Bill Summary, supra.)  The amendment establishes that public posting by the government has an effect equivalent to sending a decision to the business.  (Act on Specified Commercial Transactions, as amended by Law No. 60 of 2016, art. 66-5.)

  1. Ordering a business to take remedial action for consumers:

The amendment enables the government to order businesses that violate the Act to take action to protect consumers’ interests.  (Id. art. 7, ¶ 1, art. 14, ¶ 1, & art. 22.)  For example, should a business claim a false benefit from a product, the business would be required to notify the customers of government findings about the product and of any sanctions the business had received because of the false claim and to establish a plan for refunds to customers.  (Bill Summary, supra.)

  1. Regulating telemarketing sales of unusual quantities of goods and services:

For door-to-door sales, sales of an unusual quantity of goods that would not be necessary for a normal household are already regulated.  (Act on Specified Commercial Transactions, as amended by Act No. 74 of 2008, arts. 9-2 & 9-3.)  The amendment expands the application of this regulation to telemarketing sales.  The government can issue a warning to a business that sells an unusual amount of goods and services, and the consumer can cancel the sales within one year.  (Act on Specified Commercial Transactions, as amended by Law No. 60 of 2016, art. 22, ¶ 1, item 4, & art. 24-2.)

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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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