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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.

Germany: Quota of Lawyers Suggested for Appointment of Justices to Federal Constitutional Court

(Dec. 5, 2016) In November 2016, the Federal Bar Association (Bundesrechtsanwaltskammer, BRAK) and the German Lawyers’ Association (Deutscher Anwaltverein, DAV) proposed a mandatory lawyers’ quota for the appointment of justices to the Federal Constitutional Court. They suggested that at least one of the justices in each of the two chambers should be an attorney who has been practicing law for at least five years.  (Press Release, Bundesrechtsanwaltskammer, Gemeinsame Presseerklärung von BRAK (Nr. 14) und DAV (Nr. 31) v. 02.11.2016. Anwältinnen und Anwälte auf die Richterbank des Bundesverfassungsgerichts [Joint Press Release of BRAK (No. 14) and DAV (No. 31) of Nov. 2, 2016. Appointment of Lawyers to the Bench of the Federal Constitutional Court] (Nov. 2, 2016), BRAK website.)

The president of the German Lawyers’ Association, Ulrich Schellenberg, justified the proposal by pointing to the fact that even though “attorney” is the most common legal profession, only three of the justices selected for the Federal Constitutional Court between 1967 and 2005 have been practicing lawyers and there have been no new appointments of lawyers since 2005. (Id.)  The proposal criticizes the fact that open positions are “as a general rule filled with law professors.”  It states that lawyers are particularly well qualified to serve as justices at the Federal Constitutional Court, because they are the ones who “experience the law in practice every day.”  (Id.)

Background

The German Federal Constitutional Court is one of six supreme courts and is exclusively in charge of constitutional questions. It is composed of two chambers, called senates, with each senate consisting of eight justices.  Each justice serves for a term of 12 years.  (Law on the Federal Constitutional Court, Aug. 11, 1993, Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 1473, as amended through Aug. 2015, §§ 2, 4.)

The German Basic Law, the country’s constitution, provides that the Federal Constitutional Court must consist of federal judges and other members. (Basic Law for the Federal Republic of Germany (May 23, 1949), BGBl. I at 1, as amended, GERMAN LAWS ONLINE (unofficial English translation), art. 59, ¶ 2.)  The Law on the Federal Constitutional Court reiterates this requirement and states that three positions in each senate are reserved for judges who have previously served on a German supreme federal court for at least three years. (Law on the Federal Constitutional Court, § 2 ¶ 3.)  The other members need to fulfill the general requirements, but there is no quota.  In general, a candidate must be at least 40 years of age, be eligible for election to the Bundestag (parliament), and have stated in writing that he or she is willing to become a member of the Federal Constitutional Court.  (Id. § 3.)  Furthermore, each justice must have completed a legal education that qualifies him or her for judicial office pursuant to the German Judiciary Act. (Id.; Deutsches Richtergesetz [German Judiciary Act], Apr. 19, 1972, BGBl. I at 713, as amended.)

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Panama: Accession to Multilateral Treaty on Invasive Species

(Dec. 5, 2016) In October 2016, the International Maritime Organization (IMO) announced that Panama has acceded to the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (known as the Ballast Water Management, or BWM, Convention). Panama is the 53rd country to take that step.  Panama is the largest shipping industry flag state in the world, with over 18% of world merchant shipping tonnage.  (Press Release, Panama Accedes to Global Treaty to Halt Invasive Aquatic Species (Oct. 19, 2016), IMO website.)

The BWM Convention will become effective on September 8, 2017, and will impose requirements on ships aimed at managing their ballast water, with the goal of preventing invasive water species from spreading, as that may negatively impact biodiversity and ecosystems. (Id.)   According to the IMO,

Ballast water is routinely taken on by ships for stability and structural integrity. It can contain thousands of aquatic microbes, algae and animals, which are then carried across the world’s oceans and released into ecosystems where they are not native. …

The Ballast Water Management Convention will require all ships in international trade to manage their ballast water and sediments to certain standards, according to a ship-specific ballast water management plan. (Press Release, Global Treaty to Halt Invasive Aquatic Species to Enter into Force in 2017 (Sept. 8, 2016), IMO website.)

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Brazil: Court Says Abortion Not a Crime Before End of the Third Month of Gestation

(Dec. 5, 2016) A decision on a Habeas Corpus case issued by the majority of Ministers of the first panel (1a Turma) of the Brazilian Federal Supreme Court (Supremo Tribunal Federal, STF) on November 29, 2016, ordered the release of physicians and clerks who had been arrested, in a clandestine clinic, for the alleged practice of the crime of abortion with the consent of the pregnant woman and for the crime of formation of a gang. (Código Penal, arts. 126 & 128, Decreto-Lei No. 2.848, de 7 de Dezembro de 1940, PLANALTO; HC 124.306 Rio de Janeiro, STF website.) The basis for the decision was the Court’s view that the criminalization of abortion before the end of the first trimester of pregnancy violates a number of women’s fundamental rights and does not sufficiently observe the principle of proportionality. (1ª Turma Afasta Prisão Preventiva de Acusados da Prática de Aborto, NOTÍCIAS STF (Nov. 29, 2016).)

Minister Luís Roberto Barroso, who wrote the opinion, stated that in addition to the fact that the requirements authorizing pre-trial detention (prisão cautelar) were not present in the case, the criminalization of abortion is incompatible with several fundamental rights, including sexual and reproductive rights and women’s autonomy, the physical and mental integrity of the pregnant woman, and the principle of equality. (Id.)

As the Penal Code was promulgated in 1940 and thus predates the 1988 Constitution, and the jurisprudence of the STF does not allow for the declaration of unconstitutionality of any law adopted prior to the Constitution, Barroso stated that the relevant provision of the Code was “not accepted by” the Constitution (não recepção). ”As a consequence, due to the non-incidence of the type of crime imputed to the plaintiffs (the voluntary interruption of gestation carried out in the first three months), there is doubt about the very existence of the crime, which removes the presence of the prerequisite offense indispensable for pre-trial detention,” he concluded. (Id.; Constituição da República Federativa do Brasil de 1988 (as amended to 2016), PLANALTO.)

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United Nations: Latin American and African Countries Join International Program to Combat Drug Trafficking

(Dec. 2, 2016) In October 2016, the United Nations Office on Drugs and Crime (UNODC) announced that ten countries in Latin America and Africa will participate in a UNODC program aimed at combatting international drug trafficking.  (Press Release, UNODC Launches CRIMJUST Project to Address Organized Crime and Drug Trafficking Across Regions (Oct. 18, 2016), UNODC website.) The countries participating in this initiative are Brazil, Cape Verde, Colombia, the Dominican Republic, Ecuador, Ghana, Guinea-Bissau, Nigeria, Panama, and Peru. (Id.)

The program is known as CRIMJUST, and its objective is to “contribute to effectively fighting organized crime in general, and drug trafficking in particular, along the cocaine route(s) in Latin America, the Caribbean and West Africa.” (Id.)  To serve this purpose, the UNODC will assist the countries participating in the program in strengthening the integrity and capacity of their criminal justice systems, with the goal of successfully prosecuting cases of drug trafficking, an activity that is increasingly common in routes between these countries.  (Id.)

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Egypt: People’s Assembly Passes NGO Law with Two-Thirds Majority

(Dec. 2, 2016) On November 29, 2016, Egypt’s People’s Assembly approved a bill on regulating the work of nongovernmental organizations (NGOs) in the country. The new law was drafted by Abdel Hady Al-Kasby, the head of the parliament’s Social Solidarity Committee. The law passed by a two-thirds majority of the members’ votes. After the approval by the People’s Assembly, the new law will be sent to the Egyptian President, Abdel Fattah Al-Sisi, for signature. It will be enforced after its publication in the Official Gazette. (Gamal Essem El-Din, Egypt Parliament Finally Approves New NGOs Law, AHRAM ONLINE (Nov. 29, 2016).)

The bill faced criticism by members of civil society, human rights activists, some political parties, and some legal scholars. Individuals opposing the law argue that the government should have discussed its provisions with members of civil society. (Amira El-Fekki, Parliament’s First Drafted Legislation on NGOs Heavily Criticised, DAILY NEWS EGYPT (Nov. 30, 2016).)

According to news reports, the law will affect the work of 47,000 local NGOs and 100 foreign NGOs operating in Egypt. (Sarah El-Sheikh, Parliament Passes NGO Law with Two-Thirds Majority, DAILY NEWS EGYPT (Nov. 29, 2016); for background, see George Sadek, Egypt: Parliament Provisionally Approves Legislation Regulating NGOs, GLOBAL LEGAL MONITOR (Nov. 22, 2016).)

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