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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.

Jordan: Ministerial Committee Decides to Repeal Controversial Rape Provision

(May 6, 2016) On April 17, 2016, a Ministerial Committee established by the Jordanian Cabinet issued a decision to repeal article 308 of the Penal Code. Article 308 had provided for the pardoning of an individual convicted of the felony of rape if the perpetrator married the victim.  (The Abolishment of Article 308 of the Penal Code Allowing a Rapist to Marry the Victim, SARAYAH NEWS (Apr. 17, 2016) (in Arabic).)

After examining article 308, the Ministerial Committee, which consists of 13 legal scholars, announced that it would review all provisions in the Penal Code to ensure that they abide by international human rights standards established by United Nations conventions and declarations. (Dana Al Emam, Legal Experts Call for Scrapping Controversial Rape Provision in Penal Code, JORDAN TIMES (Apr. 26, 2016).)

The decision of the Committee must go through the legal department of the Cabinet and then obtain parliamentary approval. There is no specific date determined for the Parliament to discuss the decision of the Committee.  If Members of Parliament, after debating the decision, decide to approve it, the Parliament will pass a law amending the Penal Code.  (Penal Code, Law No. 16 of 1960, 1487 AL JARIDAH AL-RASSMAYAH (Jan 1, 1960), available at World Intellectual Property Organization website; Rana Husseini, MP to Push for Scrapping Controversial Rape Article from Draft Penal Code, JORDAN TIMES (Apr. 25, 2016).)

The Committee has suggested another, related amendment to the Penal Code. This would allow for a pardon for rapists in cases where proof is later presented to the court that the sexual intercourse between the male and female was consensual.  Thus, if a woman has accused someone of rape but the accused is later able to prove that the sexual intercourse was not against the plaintiff’s will, the accused party would be pardoned and there would be no conviction.  This proposal, too, is to be debated by the Parliament.  (Rana Husseini, Projected Penal Code Amendment Scraps Article Pardoning Rapists Who Marry Victims, JORDAN TIMES (Apr. 6, 2015).)

Human rights activists and legal scholars have supported the Committee’s decision to repeal article 308. They have called repeatedly for this article to be repealed or modified, arguing that its repeal will result in  deterring the commission of rape because rapists would not be able to use the provision as a means of escaping punishment.  (Id.)

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Taiwan/United States: Support for Taiwan’s Interpol Participation

(May 6, 2016) On March 18, 2016, President Obama signed into law a bill aimed at enabling Taiwan to gain observer status in “the International Criminal Police Organization [Interpol], and for other purposes.” (A Bill to Direct the Secretary of State to Develop a Strategy to Obtain Observer Status for Taiwan in the International Criminal Police Organization, and for Other Purposes, S. 2426, 114th Cong. (2016), CONGRESS.GOV.) The Bill became Public Law No. 114-139.  (Id.)

Interpol has a membership of 190 countries, each of which has established a National Central Bureau staffed by domestic law enforcement officers. Those bureaus form a linked global network, “enabling member countries to work together on cross-border investigations.”  (World, Interpol website (last visited May 5, 2016).)

Rationale for Taiwan Observer Status

The Bill notes that Taiwan had full membership in Interpol from 1964 to 1984, through its National Police Administration, but was ejected that year when the People’s Republic of China applied for membership. (S. 2426 (scroll down to S. 2426 text, § 1(a)(5)).)  It points out that non-membership in Interpol on the one hand “prevents Taiwan from gaining access to INTERPOL’s I–24/7 global police communications system, which provides real-time information on criminals and global criminal activities,” and on the other prevents Taiwan from being able to “swiftly share information on criminals and suspicious activity with the international community, leaving a huge void in the global crime-fighting efforts and leaving the entire world at risk.”  (Id. §§ 1(a)(6) & (7).)

In support of the argument for Taiwan’s participation in Interpol, the Bill also remarks that since Taiwan was granted observer status to the World Health Assembly, the country has “contributed significantly” to international efforts to deal with pandemics. (Id. § 1(a)(9).)  In addition, it states that the Interpol constitution “allows for observers at its meetings by ‘police bodies which are not members of the Organization.’”  (Id. § 1(a)(10).)  Article 4 of the Interpol constitution states: “[a]ny country may delegate as a Member to the Organization any official police body whose functions come within the framework of activities of the Organization.”  (Constitution of the ICPO-INTERPOL, I/CONS/GA/1956(2008) (scroll down to “Constitution” under “Reference Documents” section and click on PDF link.)

Actions to Be Taken for Taiwan’s Participation in Interpol

The Bill calls upon the U.S. Secretary of State to

  1. develop a strategy to obtain observer status for Taiwan in INTERPOL and at other related meetings, activities, and mechanisms thereafter; and
  2.  instruct INTERPOL Washington to officially request observer status for Taiwan in INTERPOL and to actively urge INTERPOL member states to support such observer status and participation for Taiwan. (S. 2426, § 1(b).)

In addition, no later than 90 days after the Act’s enactment, the Secretary of State is to submit a report to Congress on “the U.S. strategy to endorse and obtain observer status for Taiwan in appropriate international organizations, including INTERPOL, and at other related meetings, activities, and mechanisms thereafter.” (Id. § 1(c).)

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Mongolia: Legislation Prohibiting All Corporal Punishment

(May 4, 2016) The advocacy group Global Initiative to End All Corporal Punishment of Children reported in March 2016 that Mongolia has passed two new laws that contain prohibitions against all corporal punishment of children. The Mongolian State Great Hural (parliament) passed the Law on Child Protection 2016 and the Law on the Rights of the Child 2016 in February 2016.  (Mongolia Becomes 49th State to Prohibit All Corporal Punishment, Global Initiative to End All Corporal Punishment of Children (Mar. 2016); Mongolia Bans Physical and Humiliating Punishment of Children, Save the Children’s Resource Centre website (Mar. 18, 2016).)

The Law on Child Protection 2016 explicitly prohibits “all types physical and humiliating punishment against children by parents, guardians and third parties who are responsible for care, treatment, guidance and education of children and adolescents” in the course of raising children and disciplining bad behavior. (Mongolia Becomes 49th State to Prohibit All Corporal Punishment, citing art. 2(6) of the Law; Child Protection Law (Feb. 5, 2016), Mongolian Legal Information Integrated System website (in Mongolian).)  Moreover, in the education and upbringing of and caring for children, “parents, legal guardians, relatives, and teachers shall follow non-violent disciplinary methods.”  (Mongolia Becomes 49th State to Prohibit All Corporal Punishment, supra, citing art. 5(4) of the Law.)

According to article 7(1) of the Law on the Rights of the Child 2016, moreover, “[c]hildren have the right to be protected from crime, offences or any forms of violence, physical punishment, psychological abuse, neglect and exploitation in all social settings.” (Id.; Law on the Rights of the Child (Feb. 5, 2016), Mongolian Legal Information Integrated System website (in Mongolian).)

The new laws will come into force on September 1, 2016. As a result of the adoption of the new laws, “Mongolia becomes the 49th state to prohibit corporal punishment in all settings, including the home.  It is the first state in Eastern and South Eastern Asia to achieve this reform.” (Mongolia Becomes 49th State to Prohibit All Corporal Punishment, supra.)

According to statistics for the year 2013 compiled in the United Nations Children’s Fund (UNICEF) study, Hidden in Plain Sight, 46% of children (2 to 14 years of age) in Mongolia during the period 2005-2013 experienced some form of violent discipline at home, with 25% experiencing physical punishment and 38% psychological aggression.  (UNICEF, HIDDEN IN PLAIN SIGHT: A STATISTICAL ANALYSIS OF VIOLENCE AGAINST CHILDREN 198, 200 (Sept. 2014).)

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Netherlands: Crime Victims’ Rights Enhanced

(May 3, 2016) On April 26, 2016, the Dutch Senate (Eerste Kamer) adopted a legislative proposal put forward by the Minister of Security and Justice that gives victims of serious crimes the right to be heard in the courtroom and to express, “for example, [what they] think about the guilt of a suspect and what the punishment should be.” Formerly, the victims were only permitted to relate what the crime had meant to them personally. (Unlimited Right to Be Heard for Victims as from [sic], Ministry for Security and Justice website (Apr. 12, 2006).)

Amendment of the Code of Criminal Procedure

The new law amends the Code of Criminal Procedure and also the Damages Fund for Violent Crimes Act. For example, under article 51e of the current Code of Criminal Procedure, a victim may exercise the right to make a verbal statement at a court session “if the offence as charged in the indictment is a serious offence which carries a statutory term of imprisonment of at least eight years, or any of the serious offences referred to … [in specified sections] of the Criminal Code and section 6 of the Road Traffic Act 1994 … .” (Code of Criminal Procedure (valid as of Oct. 8, 2012, with amendments coming into effect on Jan. 1, 2013, incorporated), art. 51e ¶ 1), EJTN (European Judicial Training Network); Wetboek van Strafvordering [Code of Criminal Procedure] (Jan. 15, 1921, as last amended effective Nov. 17, 2015), OVERHEID.NL.)

The amending law adds to the same provision a sentence to the effect that persons authorized to do so who intend to exercise their right to speak should inform the prosecutor in writing before the start of the court session, so that the official can call on them at the appropriate time. In the same article 51e, a new second paragraph has been added to expressly state that “the victim may make a statement at the hearing.”  (Wet van 14 april 2016 tot wijziging van het Wetboek van Strafvordering ter aanvulling van het spreekrecht van slachtoffers en nabestaanden in het strafproces en wijziging van de Wet schadefonds geweldsmisdrijven ter uitbreiding van de mogelijkheid van uitkering aan nabestaanden [Act of April 14, 2016, Amending the Code of Criminal Procedure to Supplement the Right to Speak of Victims and Families in Criminal Proceedings and Amending the Criminal Injuries Compensation Fund Act to Expand the Possibility of Payment to Survivors] (Act of April 14, 2016), STAATSBLAD VAN HET KONINKRIJK DER NEDERLANDEN, No. 160 (Apr. 26, 2016), art. I A.) Other changes to article 51 chiefly streamline the paragraphs related to statements that may be made by the father or mother of a victim who has not reached the age of majority and by surviving relatives of a deceased victim. (Id.)

Amendment of the Damages Fund for Violent Crimes Act

According to the Damages Fund for Violent Crimes Act, payments from the Fund will be made to, among others, the next of kin of a person who is deceased as a result of the commission of an intentional violent crime in the Netherlands or such a crime committed on a Dutch vessel or aircraft outside the Netherlands. (Wet schadefonds geweldsmisdrijven (June 26, 1975, as last amended effective Jan. 1, 2012), art. 3 ¶ 1, OVERHEID.NL; Damages Fund for Violent Crimes Act (and related Decree) (undated but appended with  the amending Act of 14 December 2005 Implementing Directive No. 2004/80/EC Relating to the Compensation of the Victims of Crime, and the related Decree, EUROPA.)

The amending law changes this article to include the survivors of deceased victims of road traffic violations and of crimes of negligence. (Act of April 14, 2016, art. II(A).) The new law also extends the time in which a compensation application may be submitted to the Fund, from the current “within three years of the day on which the crime in question was committed” under article 7, paragraph 1, to ten years. (Id. art. II(B).)

Rationale for the Amendments 

According to the Ministry of Security and Justice, the amending law will serve to eliminate the differences in practice that had formerly prevailed in courts, whereby victims might in some cases be given the opportunity to talk about the perpetrator’s sentence, but not in others, because the court adhered to the strict formulation of the law before this recent amendment. (Unlimited Right to Be Heard for Victims as from, supra.) The Ministry indicated that, because before appearing in court victims must be well prepared “for their right to be heard and the possible consequences,” the victims will be given assistance by various authorities, such as the Netherlands Victim Support group or lawyers specializing in victims’ rights. (Id.) The public prosecutor can discuss the case with the victim during the victim interview, to give him or her in particular an idea of “what the victim may expect of the hearing at the court session, the demand of the public prosecutor and the final judgement of the judge.” (Id.)

Under the amending law, the Minister of Security and Justice is to send a report to the Parliament on the effectiveness and impact of the law five years after its enactment. (Act of April 14, 2016, art. IIA. ) 

Additional Legislation on Crime Victims’ Rights

The Dutch House of Representatives (Tweede Kamer) adopted draft legislation on April 12, 2016, that provides for victims of crime to “immediately receive all information about their rights,” such as their options for protection and legal counsel, “during their first contact with the police and public prosecutions department.” In addition, they will be given advice on the possibilities for compensation and how the reporting on the case is to proceed. (House of Representatives Agrees with Extra Rights for Victims in Criminal Proceedings (Apr. 12, 2016), Ministry of Security and Justice website.)

Under the draft proposal, police, the public prosecutions departments, and other organizations are to pay more attention in practice to contact with victims who are minors; to that end, part of the content of training courses of employees who have contact with young victims will be on the needs of such minors. An “important new aspect” of the draft law is that an individual assessment may be made of a victim’s situation, in order to determine whether they are eligible for special protective measures. (Id.)

The legislation is aimed at the implementation in Dutch law of European Union Directive 2012/29/EU, which lays down minimum standards for the rights, support, and protection of victims of crime. (Id.; Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, and Replacing Council Framework Decision 2001/220/JHA, 2012 O.J. (L 315) 57, EUR-LEX.) The  Ministry of Security and Justice pointed out that although victims already enjoy “a strong legal position in the Netherlands,”  the proposed law means that “t]he rights of victims will apply from the moment of reporting until the case against the suspect has been settled by the court.” (House of Representatives Agrees with Extra Rights for Victims in Criminal Proceedings, supra.)

The House of Representatives’ legislation is now under consideration by the Senate (Eerste Kamer), with the next scheduled meeting on it to take place on May 24. (34.236 Implementatie richtlijn minimumnormen voor de rechten, de ondersteuning en de bescherming van slachtoffers van strafbare feiten [34,236  Implementation Directive on minimum standards on the rights, support and protection of victims of crime], Senate website (last visited Apr. 29, 2016).)

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Germany: Federal Constitutional Court Declares Terrorism Legislation Partially Unconstitutional

(May 3, 2016) On April 20, 2016, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) ruled that the Act on the Federal Criminal Police Office was partially unconstitutional, because various provisions that deal with the investigative powers of the Federal Criminal Police Office for fighting international terrorism were not proportional. The Court criticized the legal requirements for carrying out covert surveillance measures as too broad and unspecific and held that the norms allowing the transfer of data to third-party authorities and to authorities in third countries lacked sufficient legal restrictions.  Two of the eight Justices filed dissenting opinions.  (BVerfG, 1 BvR 966/09, Apr. 20, 2015, BVerfG website (in German); Press Release, No. 19/2016, BVerfG, Constitutional Complaints Against the Investigative Powers of the Federal Criminal Police Office for Fighting International Terrorism Partially Successful (Apr. 20, 2016).)

Background

The constitutional complaint challenged provisions of the Federal Criminal Police Office Act that were inserted into the law in 2009. (Gesetz über das Bundeskriminalamt und die Zusammenarbeit des Bundes und der Länder in kriminalpolizeilichen Angelegenheiten (Artikel 1 des Gesetzes über das Bundeskriminalamt und die Zusammenarbeit des Bundes und der Länder in kriminalpolizeilichen Angelegenheiten (Bundeskriminalamtgesetz – BKAG), July 7, 1997, Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 1650, as amended, GERMAN LAWS ONLINE; 1 BvR 966/09, at 1.) The amendments transferred the competency to fight international terrorism from the individual law enforcement authorities of the German states to the Federal Criminal Police, in order to minimize risks that result from the fragmentation of competencies in cases that require immediate action; they also expanded certain police powers.  (Entwurf eines Gesetzes zur Abwehr von Gefahren des internationalen Terrorismus durch das Bundeskriminalamt [Draft Act to Address Threats Resulting from International Terrorism for the Federal Criminal Police Office], Deutscher Bundestag: Drucksachen und Protokolle [BT-Drs.] 16/9588 at 14.)

Decision

The Court held that, in general, delegating powers to the Federal Criminal Police Office in order to protect the nation and its population against threats stemming from international terrorism is not objectionable. However, the powers have to be balanced against the fundamental right of the individual to privacy.  (1 BvR 966/09, at 99 & 100.) Rights threatened by the expanded investigative powers of the Federal Criminal Police Office were the basic right to informational self-determination (the right of the individual to determine the disclosure and use of his/her personal data), the confidentiality and integrity of information technology systems, and the guarantees contained in article 13 (inviolability of the home) and article 10 (secrecy of telecommunications) of the German Basic Law, the country’s Constitution.  (Basic Law for the Federal Republic of Germany (Basic Law) (May 23, 1949), BGBl. I at 1, as amended, GERMAN LAWS ONLINE (unofficial English translation).)

Investigative Powers of the Federal Criminal Police Office

With regard to the individual provisions of the Federal Criminal Police Office Act, the Court ruled that the provisions that allow the Federal Criminal Police Office to employ special means of surveillance outside of homes, such as observation, audio and visual recording, tracking devices, or the use of police informants, were not sufficiently limited. (BKAG, § 20g, ¶¶ 1-3; 1 BvR 966/09, at 177.) According to the Court, even though it is generally permissible to allow surveillance for the purpose of prevention of crimes, section 20g of the BKAG does not require that the commission of the crime be foreseeable and specific or that there be a reasonable probability that the person under surveillance will commit terrorist offenses in the near future.  The Court criticized the section of the law as disproportionately broad, permitting the monitoring of confidential situations and not requiring a judicial decision at all or only after one month.  (1 BvR 966/09, at 164 – 177.)

The Court further held that section 20h of the Federal Criminal Police Office Act, which deals with video and acoustic surveillance of private homes, was partially unconstitutional. The Court stated that the surveillance was only appropriate if it focused exclusively on the target person and not, at least not directly, on third parties.  Moreover, the Court held, any collected data must first be examined by an independent body before it can be used by the Federal Criminal Police Office in order to ensure that it does not contain highly sensitive private data.  (Id. at 200.)

In addition, the Court declared that the provisions that allow access to computers, mobile phones, and other information technology systems (BKAG, § 20k) did not provide sufficient protection for the “core area” (i.e., most inviolable, innermost sphere) of private life. As with the provision allowing the surveillance of private homes, an independent body is needed to evaluate the compiled data.  (BVerfG, at 223-225.)

The Court further held that the norms providing for surveillance of ongoing telecommunications (BKAG, § 20l) and the collection of telecommunications traffic data (BKAG, § 20m) were too broad and lacked specificity (1 BvR 966/09, at 228, 232, & 247); that there was no adequate protection for persons subject to professional confidentiality; and that there were no specifications for regular mandatory reviews, comprehensive documentation requirements, or reporting duties vis-à-vis the Parliament and the public.  (1 BvR 966/09, at 131-144.)

Lastly, the Court criticized the norm that allowed an exception from the obligation to delete collected data if the data is needed for law enforcement, for the prevention of crimes, or as a precaution for the future prosecution of a criminal offense of considerable significance. (BKAG, § 20v; 1 BvR 966/09, at 274.)

Transfer of Data to Third-Party Authorities and to Authorities in Third Countries

The Court further developed its jurisprudence with regard to the use of data beyond the original investigative purpose, a use it declared to be generally permissible. However, it stated that an exception must be made for the use of data emanating from the surveillance of private homes or from information technology systems, because this data could concern the core area of private life.  Such data may only be used, the Court ruled, if the new purpose also fulfills the strict requirements for a hypothetical original data collection. (1 BvR 966/09, at 276-292.)

The Court held that the provisions permitting the use and transfer of data to other domestic authorities only partially satisfy these requirements, because they allow a transfer for the general prevention of terrorist offenses and are not limited to serious criminal offenses. The provisions do not make exceptions for data stemming from the surveillance of private homes or from information technology systems.  (Id. at 294.)  The same requirements must be observed when data is transferred to authorities in third countries.  Furthermore, the Court stated, the transferring German authority is required to ascertain if the receiving third country offers an appropriate substantive level of data protection; data must not be transferred if there is a possibility that fundamental principles of the rule of law will be violated.  (Id. at 325-329.)

Dissenting Opinions

The two dissenting judges mainly criticized the majority opinion for setting up overly detailed requirements and thereby taking on the role of the legislature. (Id. dissenting opinion Eichberger, at 5; dissenting opinion Schluckebier, at 2.) They stated that the provisions that were found unconstitutional could instead have been interpreted as being in conformity with the German Basic Law.  Furthermore, Justice Schluckebier pointed out in his dissenting opinion that the establishment of an independent body to review collected data before transferring it to the Federal Criminal Police Office affects the effectiveness of the surveillance, because the protection against terrorist threats often requires immediate action.  (Id. dissenting opinion Schluckebier, at 14-16.)

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