Library of Congress

Law Library of Congress

The Library of Congress > Law Library > News & Events > Global Legal Monitor

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.

Malaysia: Steps Taken Towards Ratification of Trans-Pacific Partnership

(Sept. 29, 2016) On September 24, 2016, it was reported that the Malaysian Secretary-General for International Trade and Industry, Datuk J. Jayasuri, had stated that the country is on track to ratify the Trans-Pacific Partnership (TPP) by early 2018.  (Amir Hisyam Rasid, (Update) Malaysia Amending 18 Laws in Preparation for TPP Ratification, NEW STRAITS TIMES (Sept. 24, 2016); TPP Full Text, Office of the United States Trade Representative (USTR) website (last visited Sept. 29, 2016).)  He said that 18 laws had been identified as needing amendment in order to comply with the TPP provisions, and that work had started on developing the necessary legislation.  Once these amendments are passed by the Parliament, a decision will be made on ratification.  (Rasid, supra.)

In addition, on September 25, 2016, it was reported that an intellectual property (IP) lawyer in Malaysia had said that the country’s IP laws are nearly fully compliant with the TPP, with few legislative changes needed.  (Eva Yeong, Malaysia Near Full Compliance with TPPA Requirements on IP Laws, SUN DAILY (Sept. 25, 2016).)  One such change is the extension of copyright protection to 70 years plus the life of the author, which would have retrospective effect.  The current duration of copyright protection in Malaysia is 50 years plus the life of the author.  (Copyrights Act 1987 (Act 332) (as amended to July 1, 2012), s 17(1), Intellectual Property Corporation of Malaysia website.)

The TPP was signed by 12 countries on February 4, 2016: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam.  (Press Release, USTR, Trans-Pacific Partnership Ministers’ Statement (Feb. 4, 2016).)  The agreement will enter into force “60 days after the date on which all original signatories have notified the Depositary in writing of the completion of their applicable legal procedures.”  If not all of the signatories ratify the agreement, however, it will still enter into force if, after two years from the date of signature, “at least six of the original signatories, which together account for at least 85 per cent of the combined gross domestic product of the original signatories,” have ratified the agreement.  (TPP Chapter 30, art. 30.5, USTR website (last visited Sept. 29, 2016).)

Jayasuri said that, should the TPP not enter into force, Malaysia would seek to engage in talks with the four countries with which Malaysia does not have an existing free trade agreement.  (Tho Xin Yi, Malaysia on Track to Ratifying TPPA Before 2018 Deadline, THE STAR (Sept. 24, 2016).)

Back to Top

France: Seized Cell Phone Data Can Be Used

(Sept. 29, 2016) On August 12, 2016, a judge of the Conseil d’État (the highest administrative jurisdiction in France) authorized the use of the data stored in a cell phone that had been seized during a search ordered on the basis of the Law on the State of Emergency.  (CE, ordonnance du 12 août 2016, Ministère de l’intérieur c/ M. B, N° 402348 [State Council, Order of August 12, 2016, Ministry of the Interior v. Mr. B… No. 402348], Conseil dÉtat website; Loi n° 55-385 du 3 avril 1955 relative à l’état d’urgence [Law No. 55-385 of April 3, 1955, on the State of Emergency], LEGIFRANCE.)

Background

Law enforcement authorities seized a cell phone during the search of a home on August 4, 2016, and captured and copied the data on the cell phone. The local prefect then asked an administrative court to authorize use of the data, but his request was denied on August 8.  On August 10, the Minister of the Interior appealed to the Conseil d’État, which set aside the decision of the administrative court and authorized use of the data.  (Saisies réalisées dans le cadre de l’état d’urgence et exploitation des données [Seizures Made Under the Framework of a State of Emergency and the Use of Data], Conseil d’État website (Aug. 12, 2016).)

The authorization given by the Conseil d’État judge to law enforcement to use the cell phone data was principally based on three findings: the data capture was done in compliance with the rules defined by the relevant legislation; a report issued after the search mentioned that the owner of the cell phone had told investigators he was using the phone and its wireless connection to share videos and images related to the Syrian conflict and the Islamic State of Iraq and Syria (ISIS); and, during the hearing, the applicant had admitted to using his cell phone to post, share, and comment on pictures and videos on current events in Syria.  The Conseil d’État judge held that the cell phone was likely to contain data about a potential threat to security and public order. Moreover, the owner of the cell phone had not opposed the use of the data by the authorities.  (Id.)   

Basis for the Authorization

The main legal basis for the decision is the 1955 Law on the State of Emergency. (Loi n° 55-385 du 3 avril 1955, supra.)  This Law, which has been amended several times, permits the government to declare a State of Emergency and defines what that entails.  The most recent amendment to the Law occurred in July 2016, with the adoption of a law extending the application of a State of Emergency.  (Loi n° 2016-987 du 21 juillet 2016 prorogeant l’application de la loi n° 55-385 du 3 avril 1955 relative à l’état d’urgence et portant mesures de renforcement de la lutte antiterroriste [Law No. 2016-987 of July 21, 2016 Extending the Application of Law No. 55-385 of April 3, 1955, on the State of Emergency and Establishing Measures Strengthening Counter-Terrorism], LEGIFRANCE.)  Under the legislation as it currently stands, the government is allowed to conduct searches in any place (with certain exceptions, such as places assigned to the exercise of a parliamentary mandate or places for the conducting of the professional activities of lawyers, magistrates or journalists) “when there are serious reasons for considering that this place […] is frequented by a person whose behavior is a threat to security and public order.”  (Loi n° 55-385 du 3 avril 1955, art. 11.)

Data found during such a search may be seized on site, but the law enforcement authorities must then ask the administrative tribunal judge for permission to use it. (Id.)  The administrative judge must decide within 48 hours whether to grant or deny that authorization.  (Id.)  The administrative judge’s decision can be appealed directly to a judge of the Conseil d’État, who then also has only 48 hours to decide.  (Id.)  To grant the authorization, the judge of the Conseil d’État must verify whether the seizure was done according to proper procedure and confirm that the evidence in question is indeed related to a threat to security and public order on the part of the suspect.  (Saisies réalisées dans le cadre de l’état d’urgence, supra.)

Prepared by Ricardo Wicker, Law Library Intern, under the supervision of Nicolas Boring, Foreign Law Specialist.

Back to Top

Spain: National Police Chief Addresses Anti-Terrorism Policies

(Sept. 29, 2016) The head of Spain’s National Police gave an address describing how Spain’s efforts to improve anti-terrorist cooperation among European Union Member States, and arguing against national border patrols within the European Union.  (Hugo Gutiérrez, El Director de la Policia Nacional Pide mas Cooperación Europea contra el Terrorismo, EL PAIS (Aug.1, 2016).) He argued that because access to real time information on terrorists’ activities is essential in the fight against international terrorism, in order to improve early detection efforts, databases from different countries, currently not shared, need to be accessed by all allied countries in order to succeed in fighting new forms of terrorism, and intelligence must be improved. (Id.)

The chief also observed that Spain’s geography creates immigration challenges, and therefore the government has signed a number of cooperation agreements with immigrants’ countries of origin of immigrants in an effort to stem human trafficking at the source. (Id.)  Spain’s cooperation with Morocco, Mauritania, Senegal, and Niger has been critical, he stated, in reducing immigration waves from those countries and serves as an example of the importance of sharing intelligence.  (Id.)  According to the chief, the successful border management system and coordination among intelligence services have ensured that there is less Islamic radicalization in the border area with Africa in Southern Spain.  (Id.)

Back to Top

Romania: Same-Sex Marriage Decision Postponed

(Sept. 27, 2016) On September 20, 2016, the High Court of Cassation and Justice of Romania, for the second time, postponed making a decision on recognizing a same-sex marriage concluded between a Romanian citizen and a non-Romanian outside the country. The decision was previously postponed in July, with the Court saying it needed more time to consider the matter, and now a ruling is expected on October 27. Romania does not have legal same-sex marriage domestically. (Romanian Court Again Postpones Ruling on Same-Sex Marriage, ABC NEWS (Sept. 20, 2016).)

The High Court of Cassation and Justice (HCCJ) was established as the supreme court of Romania under a 2004 law. It has nine members and decides cases based on majority opinion. (Id.; High Court of Cassation and Justice of Romania, HCCJ website (last visited Sept. 26, 2016); Law No. 304 on Judicial Organization (June 28, 2004), HCCJ website (in Romanian).)

Background

A U.S. citizen, Claibourn Robert Hamilton, and a Romanian, Adrian Coman, who were married six years ago in Belgium, sued to have their marriage recognized in Romania; they are represented by an attorney, Iustina Ionescu, who is a board-member of ACCEPT, a Romanian civil rights organization that also employs Coman. In 2012 the couple began attempting to have their marriage sanctioned, because they hoped to move to Romania for work and, later in life, retire there.   Romanian immigration officials did not recognize their marriage. (Romanian Court Again Postpones Ruling on Same-Sex Marriage, supra; Gwenyth Gamble, Romania Court to Rule on Same-Sex Marriage Recognition, PAPER CHASE (Sept. 19, 2016).) Unless formal recognition is given to the relationship, Coman’s American spouse will not be permitted to reside in Romania. At present he can only stay in the country for three months at a time. (The Coman-Hamilton Case, ACCEPT website (last visited Sept. 26, 2016).)

Views on the Case

Coman expressed his frustration with the delay in the decision, although he did approve of the judges giving the issue careful consideration. He advocated the passage of a law on civil partnerships, which would allow Hamilton to live in Romania. Coman said, “Nobody else’s rights are infringed upon if Clai gets residence in Romania, or if he can talk to a doctor as my spouse if I am in the emergency room in Bucharest.” (Romanian Court Again Postpones Ruling on Same-Sex Marriage, supra.) His attorney argued that the Court should recognize that the right to privacy and family is guaranteed by the Constitution for all and that the Court should not be “influenced by social or political groups that are pleading against equal rights for LGBT persons.” (Id.)

The Alliance of Romanian Families has a different view, arguing that recognizing Coman and Hamilton’s marriage would be traumatic for Romania. David Tut, a spokesperson for the group, said, “[w]e are a Christian country … and we accept traditional families as they are defined in the Bible.” (Id.)

 

Back to Top

Russia: New Requirements for Firearms Operation Licenses

(Sept. 27, 2016) In July 2016, the most recent amendments to the Russian Federal Law on Weapons entered into force. (Federal Law No. 227-FZ of July 3, 2016 on Amendments to Certain Legislative Acts of the Russian Federation and the Repeal of Certain Legislative Acts (Provisions of Legal Acts) of the Russian Federation in Connection with the Adoption of the Federal Law on Troops of the National Guard of the Russian Federation, ROSSIISKAIA GAZETA (July 6, 2016) (official publication, in Russian).) These amendments establish new requirements for the registration, licensing, and storage of hunting, sporting, pneumatic, and gas weapons and for military and hunting knives.

The amendments make exhibiting and collecting weapons and ammunition in Russia subject to licensing; newly issued licenses are valid for a six-month period. (Federal Law No. 150-FZ on Weapons, art. 9, (consolidated version of July 6, 2016) (in Russian).) Licensing is also required for developing, producing, testing, storing, repairing, and disposing of civilian and service weapons and ammunition. (Id. art. 9(1).) Purchase of a license, which is issued for five years with the possibility of renewal, allows for the acquisition of up to five permitted weapons. (Id.)

Licensing requirements are extended by the amendments to cold-bladed weapons used for hunting game, firearms with limited destructive capacities, and air guns with a muzzle energy exceeding 7.5 joules that are used for hunting. (Id. art. 13.) Similar requirements are established for rifles and smooth-bore long-barrel weapons of self-defense, long guns for hunting, sporting long guns, and air guns and firearms of limited range that may or may not require carry permits. (Id.) For weapons purchased for collecting purposes only, storage permits are issued for an indefinite period. (Id.)

To obtain a license to purchase weapons, the new amendments require submission of proof of the non-use or possession in the past of narcotic drugs or psychotropic substances. (Id.) Additionally, gun owners are required to submit a medical report indicating the absence of medical contraindications that would prohibit weapons possession and to pass a drug test every five years. (Id.) A similar medical report is required to obtain permits to store and use weapons given as awards to military officers. (Id. art. 20-1.)  Another amendment requires authorized weapons and ammunition dealers to report all buyers to the local police agency on a monthly basis. (Id. art. 18.)

After this amending law was signed by the President of the Russian Federation, two different versions of it containing different provisions on the term of validity for licensing weapons used for self-defense purposes were simultaneously published in official sources. One version provides for a five-year, the other for a ten-year, period of license validity. Russian commentators have discussed various options for resolving this technical glitch; their proposals range from establishing the application procedure at the discretion of the court to having the next State Duma (the legislature, which was elected on September 18, 2016) reconsider the issue. (Victor Khamraev, Zakon ob Oruzhii Dal Osechku [The Law on Weapons Has Misfired], KOMMERSANT.RU (July 6, 2016).)

Prepared by Olena Yatsunska, foreign law consultant, under the supervision of Peter Roudik, Director of Legal Research.

Back to Top