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Germany: Law on Insulting Foreign Leaders Abolished

(July 26, 2017) On July 17, 2017, an act that abolishes the criminal law provision that made it a crime to insult a foreign head of state, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in Germany was published in the Federal Law Gazette.  An “insult” is not defined in the Criminal Code, but the courts have interpreted it to be “a manifestation of disregard or contempt of another person provided that the offender is aware of the defamatory character of the statement.” (1 ENTSCHEIDUNGEN DES BUNDESGERICHTSHOFES IN STRAFSACHEN [BGHSt] [DECISIONS OF THE FEDERAL COURT OF JUSTICE IN CRIMINAL MATTERS] 289.) The crime of insulting a foreign leader was punishable by a term of imprisonment not exceeding three years or a fine.  (Gesetz zur Reform der Straftaten gegen ausländische Staaten [Act to Reform Crimes Against Foreign States], July 17, 2017, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 2439, BGBl. website.) The amendment of the Criminal Code repealing the provision will enter into force on January 1, 2018. (Id.)

The provision received international attention in the summer of 2016, when it was invoked by the Turkish government on behalf of the Turkish President Recep Tayyip Erdoğan, who felt insulted by a poem written by the German satirist Jan Böhmermann. As a result of that incident, the German government announced in January 2017 that it would abolish the criminal provision, because “providing representatives of foreign states with a legal protection for their honor exceeding the protection already awarded against general personal insults does not seem timely anymore.” (Jenny Gesley, Lèse-Majesté in Germany – A Relic of a Long-Gone Era?, IN CUSTODIA LEGIS (Feb. 23, 2017); Entwurf eines Gesetzes zur Reform der Straftaten gegen ausländische Staaten [Draft Act to Reform Crimes Against Foreign States], DEUTSCHER BUNDERAT: DRUCKSACHEN [BT-Drs.] 67/17, at 1.)

Under German law, it is generally a criminal offense to insult a person. The crime is punishable by a term of imprisonment not exceeding one year or a fine. (Strafgesetzbuch [StGB] [Criminal Code], Nov. 13, 1998, as amended, BGBl. I at 3322, § 185, GERMAN LAWS ONLINE; German Criminal Code (as last amended Oct. 10, 2013), GERMAN LAWS ONLINE (unofficial English translation.)

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Italy: Amendment to Armed Forces Personnel Law

(July 26, 2017) On July 7, 2017, new legislation on the Armed Forces entered into effect in Italy. (Legislative Decree No. 94 of May 29, 2017, Provisions Concerning the Reorganization of the Roles and the Career of the Armed Forces Personnel, as Provided in Article 1, Paragraph 5, Second Point, of Law No. 244 of December 31, 2012 (L. D. No. 94), GAZZETTA UFFICIALE (G.U.) (June 22, 2017) (in Italian).) The text of Law No. 244 of 2012 delegates powers to the government to review the National Military Statute and provisions on the same matters. (Law No. 244, 2012, G.U. No. 13 (Jan. 15, 2013), G.U. website (in Italian).)

The new legislation:

  • confirms the existing categorization and hierarchy of career military personnel – Generals, Senior Officers, Junior Officers, Marshals, Sergeants, Permanent Service Volunteers, and Temporary Service Volunteers – and introduces amendments to the provisions on each category of personnel (L. D. No. 94, art. 1(1)(a)(a)-(d); Italian Military Hierarchy, HIERARCHYSTRUCTURE.COM (last visited, July 25, 2017));
  • introduces extensive amendments to the provisions on the military career path of officers throughout the military in its different branches (Army, Marine, Air Force, and other specific branches of the military), related to applicant qualifications for filling vacancies, examinations for admission to military service, testing of skills, the duration of preparation to become an officer, promotion requirements, and service commitment requirements (id. arts. 2-9); and
  • amends the Code of Military Order (Legislative Decree No. 66 of March 15, 2010, G.U. No. 106 (May 8, 2010), G.U. website (in Italian)) in regard to the determination of the gross annual sums earned by military officers for purposes of calculation of their social security benefits and pensions (L.D. No. 94. art. 10(1)(c)).

In addition, starting later this year, the new law provides for a reduction in personnel of the Italian Army, Military Marine, and Military Air Force by a contingent of 1,498 units of the 169,730 total, with the monies saved by these reductions to be allocated to meet other financial obligations related to the military set forth under the law’s provisions. (Id. art. 11(5).)

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India: Supreme Court Upholds Mandatory Use of Biometric Identification for Filing Taxes and Tax Account Applications

(July 21, 2017) India’s Supreme Court, on June 9, 2017, upheld the constitutional validity of section 139AA of the Income Tax Act, 1961, which made the Act’s biometric-based identification project, Aadhaar, mandatory for filing income tax returns and applying for Permanent Account Numbers (PANs). (Binoy Viswam v. Union of India & Ors., (2017), Supreme Court website; Centre for Communication Governance – National Law University, Delhi, Supreme Court Upholds Law Linking Aadhaar with PAN, Legally India website (June 10, 2017); Anviti Chaturvedi, Overview of the Legal Issues Around Aadhaar, Legally India website (June 10, 2017); Income Tax Act, 1961, as amended, sec. 139AA, Government of India Income Tax Department website.) PANs are account numbers issued in the form of laminated cards and used for all transactions and correspondence with the Income Tax Department. (About PAN, Government of India Income Tax Department website (last visited July 13, 2017).) However, the Court’s ruling exempts PAN holders who are not yet enrolled in Aadhaar from the provision under section 139AA(2) of the Act, which requires PAN holders to use Aadhaar numbers, until constitutional challenges to Aadhaar have been settled. (Supreme Court Upholds Law Linking Aadhaar with PAN, supra.)

The Court rejected arguments that in seeking to address tax fraud committed solely by individuals, the new provision discriminated between individuals and companies, firms, and trusts, which are not required to obtain an Aadhaar number. (Id.)  The Court also held that, despite evidence demonstrating that people had multiple Aadhaar numbers, Aadhaar was still the best method of addressing tax fraud through duplicate PANs and that the rationale for linking the PAN database with Aadhaar was sound.  (Chaturvedi, supra.)

Background on Aadhaar Program

The Aadhaar program was initiated in 2009 to prevent the payment of benefits and subsidies to ineligible beneficiaries resulting from the duplication or forging of the identity proofs (ration cards, driver’s licenses, or voter IDs) required for access to government benefits, subsidies, and services. The program received legislative backing with Parliament’s passage of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act), which enabled mandating Aadhaar’s use by the central and state governments and private organizations and persons for any service or benefit. (Id.; Supreme Court Upholds Law Linking Aadhaar with PAN, supra; Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, GAZETTE OF I NDIA, pt. 2 sec. 1 (Mar. 26, 2016), Unique Identification Authority of India (UIDAI) website.)

However, the passage of this Act put in question the status of various interim Supreme Court orders directing that Aadhaar must remain voluntary until several petitions challenging the constitutionality of the Aadhaar project are conclusively decided. (Supreme Court Upholds Law Linking Aadhaar with PAN, supra.) This issue was further complicated when, in 2017, Parliament passed the Finance Act to amend the Income Tax Act and made Aadhaar mandatory for filing income tax returns and applying for PANs. (Chaturvedi, supra; Finance Act, 2017, GAZETTE OF INDIA, pt. 2 sec. 1 (Mar. 31, 2017), Tax India Online website.)

Key Legal Issues

The Supreme Court has yet to decide whether privacy is a fundamental right under article 21 of the Indian Constitution and whether Aadhaar violates this right for lack of adequate safeguards in the collection of identity data. (Chaturvedi, supra; Constitution of India (as of Nov. 9, 2015), art. 21, Ministry of Law and Justice website.) The Court will also be ruling on the constitutionality of government notifications issued under the Aadhaar Act that make Aadhaar mandatory for various programs.  (Chaturvedi, supra.) Finally, the Court must rule on challenges to the Aadhaar Act based on the argument that the Act, which was passed as a “money bill,” does not qualify as a money bill because it contains provisions unrelated to government taxation and expenditure. (Id.)

Criticism of the Ruling

Critics of the ruling have argued that section 139AA’s exclusion of juristic entities such as companies, which are not required to obtain Aadhaar numbers, “would fail to address the government’s stated objectives of weeding out fake [PAN] cards and curbing black money.” (Supreme Court Upholds Law Linking Aadhaar with PAN, supra.)  These critics also note that the Court’s view that the failure to identify beneficiaries is a primary reason for “leakages in subsidies” has been repeatedly debunked by researchers.  (Id.)

In addition, with regard to limiting relief to those who have not yet enrolled in Aadhaar, critics claim that, “most importantly, the judgment ends up protecting only those who are privileged enough to not depend on the state for benefits and services, and have thus managed to remain un-enrolled.” (Id.)  However, the critics were heartened by the Court’s assertions that the Aadhaar Act would ultimately need to pass the “more stringent test” of whether “the collection of identity data without adequate safeguards interferes with the fundamental right to privacy protected under Article 21 of the Constitution[,] . . . [which] guarantees right to life and personal liberty,” and that taking appropriate measures to address data leaks was essential. (Id.; Chaturvedi, supra; Constitution of India, art. 21.)

A five-judge Constitution Bench of the Supreme Court heard the case concerning whether the mandatory use of Aadhaar violates a fundamental right to privacy on July 18–19, 2017. India’s Attorney General, Mukul Rohatgi, said that, as a result of previous inconsistent judgments by six- and eight-judge benches regarding the right to privacy, elaborate debate and an authoritative pronouncement were required to resolve the issue. (Aadhaar Privacy Issue: Supreme Court’s 5-Judge Constitution Bench to Hear Case on 18 July, FIRSTPOST (July 12, 2017).) It is expected that once the privacy issue has been decided, other cases related to Aadhaar will be resolved.  (Id.)

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