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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.

Sweden/ECHR: Court Rejects Deportation of Iraqis Connected to U.S. Forces

(Oct. 20, 2016) On August 23, 2016, the Grand Chamber of the European Court of Human Rights (ECHR) issued a judgment against Sweden for attempting to deport three Iraqi citizens in violation of article 3 of the European Convention on Human Rights, which prohibits subjecting persons “to torture or to inhuman or degrading treatment or punishment.”  The judgment thereby overturned an earlier ECHR decision.  (Case of J.K. and Others v. Sweden, App. No. 59166/12, E.C.H.R. Grand Chamber, Aug. 23, 2016, HUDOC; Case of J.K. and Others v. Sweden, App. No. 59166/12  E.C.H.R. Fifth Section, June 4, 2015, HUDOC.)


The applicants, an Iraqi family, were denied asylum in Sweden in November of 2011 on the grounds that they had not demonstrated that they were “otherwise in need of protection.” (Case of J.K. and Others v. Sweden [2016], supra, ¶ 17.)  The family had claimed that they were individually persecuted by Al Qaeda and that the Iraqi police force could not protect them.  (Id.)  Specifically, the applicants claimed that their business and home had been destroyed in 2006, their daughter had been killed in 2008, and they had felt compelled to shift their location in Baghdad thereafter, from 2008-2011.  (Id. ¶ 13.)  The Swedish authorities, taking all the threats in sum, found that the family had been persecuted but  was not in need of immediate protection as it had not been in danger after 2008.  (Id. ¶ 17.)

The previous chamber decision agreed with the Swedish authorities’ assessment of the situation and came to the conclusion that the applicants had not sufficiently proven that a return to Iraq would put them at “a real risk of being subjected to treatment contrary to Article 3” of the Convention. (Id. ¶ 60.)

Judgment of the Grand Chamber 

The EHCR found that:

the fact of past ill-treatment provides a strong indication of a future, real risk of treatment contrary to Article 3, in cases in which an applicant has made a generally coherent and credible account of events that is consistent with information from reliable and objective sources about the general situation in the country at issue. In such circumstances, it will be for the Government to dispel any doubts about that risk. (Id. ¶ 102.)

The Grand Chamber, in determining the case, looked at the present-day dangers rather than those presented in 2011 (id. ¶ 113) and found, citing the U.S. Department of State, that the situation has deteriorated since 2011.  (Id. ¶ 120.)  The Court especially considered the fact that the family, because the father had done business with the United States at Victoria Camp, was part of “the group of persons systematically targeted for their relationship with American Forces.”  (Id. ¶ 117.)  Because they belonged to this group, and were not merely members of the public at large, the Court found the Iraqi government could not provide them sufficient protection;  instead, the situation creates “a real risk of ill-treatment in the event of their return to Iraq.”  (Id. ¶ 121.)

In conclusion, the Grand Chamber found “that substantial grounds have been shown for believing that the applicants would run a real risk of treatment contrary to Article 3 if returned to Iraq. Accordingly, the Court considers that the implementation of the deportation order in respect of the applicants would entail a violation of Article 3 of the Convention.”  (Id. ¶ 123.)


Seven judges dissented from the decision, six of whom argued that although they agreed that there had been persecution of the applicants, the case hinged on whether the Swedish state “would be fulfilling its obligations under the substantive limb of Article 3 if it were to execute the authorities’ decision to expel the applicants to Iraq.” (Joint Dissenting Opinion of Judges Jäderblom, Gritco, Dedov, Kjølbro, Kucsko-Stadlmayer, and Polackova, Case of J.K and Others v. Sweden [2016], supra, at 57, ¶ 4.)  The dissent argued that the Swedish state’s judgment had not been sufficiently considered by the Court and found that the evidence presented by the applicants before the Swedish authorities did not substantiate, but rather undermined, their case; therefore the burden of proof did not shift to the Swedish state to “dispel any doubts about the risk of such persecution in the future.”  (Id. ¶ 7.)  They noted especially that the applicants had two daughters who were living in Iraq without needing to go into hiding.  (Id. ¶ 10.)

Dissenting Judge Ranzoni set out a test requiring the state to dispel any doubts on the risk of persecution only if the following conditions are met:

  1. if the asylum-seeker has made a coherent and credible account of events of past ill-treatment which met the Article 3 threshold;
  2. if the account is consistent with information from reliable and objective sources about the situation in the country at issue, providing a serious indication of a future, real risk of such ill-treatment; and
  3. if the asylum-seeker has indicated substantial and concrete grounds for believing that the risk of further such ill-treatment still persists. (Dissenting Opinion of Judge Ranzoni, id. at 61, ¶ 11.)

He considered that the standards of this test had not been met in the case at hand. (Id.)

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UAE: Possible New Regulations for Unmanned Aerial Vehicles

(Oct. 19, 2016) The United Arab Emirates (UAE) is reportedly working on enacting new laws to more tightly regulate the use of unmanned aerial vehicles.  Mohammed Faisal al-Dossari of the UAE General Civil Aviation Authority (GCAA) has been quoted as saying “[t]he Emirates Authority for Standardisation & Metrology (Esma) is working on laws that will have a framework for the UAE for imports, sales, and performance of drones.”  (Stanley Carvalho, UAE to Introduce New Laws Soon to Regulate Drones, REUTERS (Sept. 26, 2016).)  The new laws “will also address air-worthiness for heavier drones, standards for pilotless aircraft and pilot training among other issues,” according to Dossari.  (Id.)

Existing law defines aircraft as “any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface. This comprises fixed-wing and variable-wing aircraft as well as balloons and the like, when used for civil purposes.” (Federal Act No. 20 (1991) Promulgating the Civil Aviation Law, art. 1.7 (1991 Law).)  As this definition is broad enough to cover unmanned aircraft, these are therefore covered by various provisions related to civil aviation.

The Ministry of Communications has the authority to “supervise all matters related to civil aviation and its development in the State.”  (Id. art. 4.)  This and other provisions, such as article 20 of the 1991 Law, related to establishing rules of the air, allow the government to regulate the use and operation of drones through executive orders, without the need to enact new laws.

Recreational use of drones is allowed on the conditions that the user is registered with the General Civil Aviation Administration (GCAA), the drone is not equipped with drop or release devices, the flying range is not more than 400 feet above ground, and other requirements specifically indicated in the initial issue of the regulation titled Operation of Unmanned Aerial Systems Within the United Arab Emirates.  (For the regulation and related information, see An Unmanned Aerial System, GCAA (last visited Oct. 19, 2016); see also Registration, GCAA (last visited Oct. 17, 2016).)  However, one of the emirates, Abu Dhabi, “has banned the sale of recreational drones since March last year.” (Carvalho, supra.)

Commercial or other non-recreational uses are also permitted, provided operators meet additional requirements, including passing an exam and obtaining operational approval before each flight. (Registration, supra.)  Currently, “[a]t least 400 drones, mostly commercial, are registered with the GCAA.” (Carvalho, supra.)

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Curaçao: Tax Reform Measures

(Oct. 18, 2016) It was reported on October 7, 2016, that the Curaçao government had introduced a number of major tax reform measures, with retroactive effect for some provisions from January 1, 2016; other provisions enter into force on January 1, 2017. (Alfred Krieger, Curaçao: Tax Reform: Main Legislative Changes with Retroactive Effect as per 1 January 2016, TAX NEWS SERVICE (Oct. 7, 2016), International Bureau of Fiscal Documentation (IBFD) online subscription database,; Tax Alert: National Ordinance on Pension Savings Schemes, Repair and Modernization of Tax Ordinances (Tax Alert), KPMG Meijburg & Co Caribbean website (Sept. 23, 2016).)

The National Ordinance on Pension Saving Schemes, Repair and Modernization of Tax Ordinances (short title) amends some 19 different tax-related laws. (Landsverordening pensioensparen , reparatie en modernisering belastingverordeningen … (July 15, 2016), PUBLICATIEBLAD (Curaçao’s official gazette) 2016, No. 37, Government of Curaçao website.) Some highlights of the amendments are listed below.


  • The Ordinance provides that “statutory mergers and demergers of enterprises will no longer trigger personal income tax or profits tax on book profits for tax purposes and/or hidden reserves, if the merger or demerger is predominantly motivated by business or commercial reasons” (Tax Alert, supra, at 4);
  • Petitions seeking fiscal unity and a facilitated merger are to be decided on within three months; petitions for a transparent company or an “exempt BV” (Besloten Vennootschap, a private limited liability company) must be decided on within two months; and the Ordinance introduces the opportunity to object if a taxpayer petition is denied by the tax authority or the decision-making deadline has expired (Krieger, supra);
  • The tax rate for dividend distributions by an exempt BV is 19.5% (id.);
  • Companies are required to maintain transfer pricing documentation (id.);
  • The profit tax rate is newly set at a flat rate of 22% (versus the previous 25% rate) (id.; Curaçao: Corporate – Taxes on Corporate Income, PWC WORLDWIDE TAX SUMMARIES (last reviewed June 1, 2016);
  • Accelerated depreciation is abolished (Krieger, supra);
  • Gifts up to an amount of ANG250 (about US$141) may be paid tax-free to employees (id.); and
  • As of January 1, 2017, employees will have a statutory obligation to provide proof of identity to their employers, and the employer “must check the identity documents and keep them on file” (Tax Alert, supra, at 3).

Permanent Establishments

As of January 1, 2017, for non-resident or non-Curaçao-based employers to qualify as permanently established in Curaçao, they must meet two minimum requirements:

1) have a site “where a building is to be realized or where construction or assembly work that takes more than 30 days will be carried out” (id. at 4), and

2) provide “intermediary services to persons who will personally carry out paid work in Curaçao and to third parties for whom work will be carried out” (id.).  The party that is obliged to pay wages will be deemed as the withholding agent in these two cases.  (Id.)

Insurance and Deductions

  • For personal income tax purposes, a life insurance premium is deductible up to the maximum amount of ANG1,500 (about US$847); that amount will be ANG 3,000 for the fiscal years 2017 and 2018 and ANG5,000 for the fiscal year 2019 (Krieger, supra);
  • For personal income tax purposes for fiscal year 2016, a maximum amount of ANG1,500 “is deductible for payments to a savings or investment account and if the amount is used for the purchase of life insurance” (id.); and
  • A fire insurance premium is no longer deductible for personal income tax purposes (id.).

Real estate

  • Depreciation of real estate is only permitted “if and insofar as [its] book value … is more than 50% of the value … used for real estate tax purposes” (id.);
  • The Ordinance established an exemption for transfer tax on real estate when a business is transferring to a corporate entity, in cases of merger or reorganization (id.).


  • The Ordinance introduces additional options for forming old-age pensions, in the form of a “third pillar” supplementing general old-age insurance and any applicable company pension; the new options “have been given shape by allowing a higher deduction of premiums for annuity policies and [introducing] what is known as tax-facilitated bank savings (gefacilieerd banksparen)” (Tax Alert, supra, at 1);
  • Some claims pursuant to pension schemes and life insurance are exempt from inheritance tax (Krieger, supra); and
  • For certain types of social insurance, such as the accrued General Old Age Pension, non-resident claimants/recipients will receive 75%, instead of 100%, of the benefit (id.).


  • The tax collector has the right, since January 1, 2016, to charge interest on outstanding tax debts (id.); the levy applies “retroactively to assessments of all types that are outstanding as of April 1, 2016,” and the rate will be determined on the basis of one-sixth of the statutory interest rate (Tax Alert, supra, at 6);
  • The Ordinance established “sustainable housekeeping,” “which occurs if two individuals have the mutual obligation to contribute to the costs of living by a cohabitation notary deed,” a deed that “must be in effect for at least 1 year before the date of death and the partners should be registered and actually residing at the same address” (Krieger, supra); and
  • In regard to electronic filing, the tax inspector must immediately send acknowledgment of receipt of an electronic return, and options for filing electronic returns have been introduced in connection with the various types of social insurance, e.g., general old-age pension insurance, basic health insurance, and severance pay (Tax Alert, supra, at 5).

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Maldives: President Ratifies First Amendment of Freedom of Peaceful Assembly Act

(Oct. 18, 2016) On August 23, 2016, the President of Maldives, Abdulla Yameen Abdul Gayoom, ratified the first amendment made to the country’s Freedom of Peaceful Assembly Act. The amendment stipulates that street protests, marches, parades, and “other such gatherings can only be held with written permission from the police, or in areas designated by the Ministry of Home Affairs.” (President Ratifies Freedom of Peaceful Assembly Act Amendment, VNEWS.MV (Aug. 23, 2016); Press Release, President Ratifies First Amendment to the Freedom of Peaceful Assembly Bill (Aug. 23, 2016), Presidency of the Republic of Maldives website; Bill on Amendment to the Freedom of Peaceful Assembly Act, No. 1/2013 (Aug. 8, 2016), People’s Majlis website(in Dhivehi); Freedom of Peaceful Assembly Act 2013 (Unofficial Translation), FORUM-ASIA.) The amendment bill was passed by the People’s Majlis, the unicameral legislative body of the Maldives, on August 17, 2016. (President Ratifies First Amendment to the Freedom of Peaceful Assembly Bill, supra.)

According to the the Presidency’s website, the amending legislation requires,“except for listed areas by the Ministry of Home Affairs, prior written approval by Maldives Police Service for gatherings around Malé [the capital of the Republic of Maldives]. The Ministry of Home Affairs is to publish the listed areas in the Gazette within 30 days of publication of the Act.” (Id.)


Adoption of the amendment appears to come as a result of events happening in the month of July, when the Maldives United Opposition, “a multi-party Opposition alliance whose explicit agenda is to restore democracy in the Indian Ocean archipelago,” began organizing nightly protests in an attempt to bring down the current Yameen government. (In the Maldives, the Opposition Has Launched a Bid to Oust a ‘Dictatorial’ President, SCROLL.IN (July 27, 2016); Has the Opposition’s Bid to ‘Restore Democracy’ in the Maldives Fizzled Out?, SCROLL.IN (Sept. 30, 2016).)

Ratification of the amending legislation also comes on the heels of the People’s Majlis passing a bill criminalizing defamation. (Majlis Passes Bill on Defamation, PEOPLE’S MAJLIS (Aug. 9, 2016); Shihar Aneez & Ranga Sirilal, Maldives Approves Defamation Law Criticised by U.N., U.S., REUTERS (Aug. 10, 2016).) On August 11, 2016, the President signed into law the controversial legislation. (Maldives President Signs Tough Law Criminalizing Defamation, AP (Aug. 11, 2016).) The Defamation and Freedom of Speech Act criminalizes defamatory statements,  writings, expressions, and actions that include gestures or sounds, which are damaging to a person’s reputation, deemed a threat to national security, contrary to any tenet of Islam, or contrary to general societal norms. (The Defamation and Freedom of Speech Act, No. 16/2016, PEOPLE’S MAJLIS website (in Dhivehi); Constance Johnson, Maldives: Draft Law Would Criminalize Defamation, GLOBAL LEGAL MONITOR (Mar. 29, 2016); Azra Naseem, Maldives ‘Defamation Law’ to Curtail Freedom of Expression, MALDIVES INDEPENDENT (Aug. 9, 2016).)


When the bill on the amendment of the Freedom of Peaceful Assembly Act was introduced in early August, Abdulla ‘Bochey’ Rifau, an MP of the ruling party, stated, according to one news report, that the amending legislation “was aimed at ‘ensuring everyone can safely exercise their right to assembly.’ Rallies, protests and demonstrations have become a ‘public nuisance and pose dangers to public safety.’” (Mohamed Saif Fathih, New Bill to Give Police Authority over Protests in Malé, MALDIVES INDEPENDENT (Aug. 6, 2016).) An opposition MP, Imthiyaz Fahmy, “condemned the bill as unconstitutional, noting Article 32 of the constitution guarantees the right to assemble without prior notice.” (Id.) The MP also noted, “I do not see why the government should bother to bring any legislative changes, when peaceful political activity of any sort is being stopped by the police.” (Id.) According to the Maldives Independent:

The police, citing a home ministry imposed ban on street protests, have blocked nearly all gatherings by opposition parties, civil society groups and journalists in Malé in recent months. The ban was announced in November after the opposition called a three-day protest in Malé against the jailing of senior opposition figures, including former President Mohamed Nasheed. (Id.)

After the bill was passed, members of the opposition said they would refuse to obey the amended Act. (Zaheena Rasheed, MPs Vote to Restrict Right to Protest, MALDIVES INDEPENDENT (Aug. 17, 2016).)

International and local human rights experts have observed that since the forced resignation of Maldives’ first democratically elected President, Mohamed Nasheed, the country has seen an erosion of democratic principles, a descent into political unrest, and increased human rights violations. (Trinanjan Radhakrishnan, Maldives’ Democracy Is Dying, DIPLOMAT (Sept. 23, 2016).)

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Australia: Amendments to War Crimes Provisions Relate to Fight Against Islamic State

(Oct. 17, 2016) On October 12, 2016, the Australian government introduced a bill into the Parliament to amend provisions related to war crimes contained in the Criminal Code Act 1995 (Cth).  (Criminal Code Amendment (War Crimes) Bill 2016, PARLIAMENT OF AUSTRALIA (last visited Oct. 13, 2016).)

The proposed changes were first announced by the Prime Minister and Minister for Defence in September in the context of outlining Australia’s involvement in the fight against the Islamic State of Iraq and the Levant (ISIL, also known as the Islamic State of Iraq and Syria, or ISIS, and as Daesh, the Arabic-language acronym  for the militant group).  (Press Release, Prime Minister & Minister for Defence, Australian Defence Force Targeting of Daesh (Sept. 1, 2016).)  The Prime Minister stated that he had been advised of a “legal anomaly” that means the Australian Defence Force (ADF), and particularly the Air Force, is not empowered to be as effective as possible in targeting the group.  (Speech, Malcolm Turnbull, National Security Statement on Counter-Terrorism (Sept. 1, 2016).)  This is because while international law allows members of an organized armed group such as the Islamic State to be targeted with lethal force, subject to the ordinary rules of international humanitarian law, “there is a legal argument that Australia’s domestic law is more restrictive.”  (Id.)

Therefore, the Prime Minister said, the government would “move quickly to introduce the necessary amendments to the Commonwealth Criminal Code that will bring our domestic laws into line with international norms.”  (Id.) According to the statement released by the government, the amendments will mean that the ADF “will be able to target Daesh at its core – joining with our coalition partners to target a broader range of Daesh combatants – consistent with international law.”  (Australian Defence Force Targeting of Daesh, supra.)

The Amendments

The bill amends division 268 of the Criminal Code Act which contains provisions on war crimes, crimes against humanity, and genocide.  (Criminal Code Act 1995 (Cth), div 268, Federal Register of Legislation website.)  The amendments are divided into two parts: the first provides express recognition of the distinction between civilians and members of an organized armed group, and the second provides for a proportionality exception to war crimes offenses.  (Criminal Code Amendment (War Crimes) Bill 2016 (Cth), Federal Register of Legislation website; Explanatory Memorandum: Criminal Code Amendment (War Crimes) Bill 2016, Parliament of Australia website.)  The explanatory memorandum that accompanies the bill states:

[t]he Bill clarifies that the war crimes offences in sections 268.70, 268.71 and 268.72, engaged by conduct which causes the death of, or injury to, a person not taking an active part in hostilities in a non-international armed conflict, will not apply where the person is a member of an organised armed group. These amendments recognise that members of an organised armed group do not benefit from the protections accorded to civilians (and other protected persons such as medical and religious personnel) under international humanitarian law, and ensure that members of organised armed groups receive treatment equivalent to members of regular armed forces under the law.  (Explanatory Memorandum, supra, at 2.)

The second part of the amendments “will also align Australian domestic law with the requirements of the international humanitarian law principle of proportionality.”  (Id.)  The explanatory memorandum states that, consistent with this principle, “the Bill clarifies that sections 268.70, 268.71 and 268.72 will not apply to attacks on military objectives which are not reasonably expected to cause civilian death or injury that would be excessive in relation to the concrete and direct military advantage anticipated.”  (Id.)  Sections 268.70, 268.71, and 268.72 of the Criminal Code Act relate to the war crimes offenses of murder, mutilation, and cruel treatment.

The amendments were further explained by Peter Dutton, Minister for Immigration and Border Protection, in his second reading speech in the Parliament.  (Speech, Peter Dutton, Criminal Code Amendment (War Crimes) Bill 2016: Second Reading, Parliamentary Debates 11 (House of Representatives, Oct. 12, 2016), Parliament of Australia website.)  For example, he stated:

[k]ey indicia that a particular group is an ‘organised armed group’ will include: evidence of a command structure or hierarchy; at least a minimal degree of organisation; and a collective purpose that is related to the broader hostilities and involves the use of force.  Analogous indicia have been elaborated by international courts such as the International Criminal Tribunal for the Former Yugoslavia, (ICTY), which has discussed the issue in a number of judgments, including its April 2008 judgment in Prosecutor v Haradinaj and its November 2005 judgment in Prosecutor v Limaj.  (Id. at 12.)


Prior to the introduction of the bill, following the announcements of the changes by the Prime Minister and Minister of Defence, some Australian academics commented on the relevant issues.  Gideon Boas, an international law expert at Monash University, said the changes, which would protect ADF members from being charged with war crimes for bombing Islamic State militants not directly involved in fighting, could potentially lead to “excessive civilian damage.”  (Omar Dabbagh, Fears Changes to Australia’s Criminal Code Could Be a Licence to Kill Civilians in Syria, Iraq, SBS (Sept. 7, 2016).)  However, he considered that the reasons for the changes were legitimate and stated that “I think we need to see the detail of the law that’s proposed. If what’s being proposed here is simply encapsulating the principles of international humanitarian law, there are built-in safeguards there.”  (Id.)

A military law expert from the Australian National University, David Letts, was not concerned about the changes, stating, “[i]t certainly is not a broad, sweeping announcement that Australia is going to amend its domestic law so that targeting can be of such a width that, as a matter of course, there would be civilian casualties involved in Australian military operations.  There’s no suggestion of that at all.”  (Id.)

Another international law expert at the Australian National University, Kevin Boreham, wrote an article about the potential changes and expressed the view that “[t]hese proposed amendments, when released, should be examined carefully. They must maintain the constraints on military operations imposed by international humanitarian law, which are carefully observed by the Australian Defence Force.”  (Kevin Boreham, Australia’s Proposed War Crimes Amendments Demand Careful Scrutiny, THE CONVERSATION (Sept. 28, 2016).)

The leader of the main opposition party in the Parliament, the Labor Party, has indicated that the Party will support the proposed amendments.  (Speech, Bill Shorten, Statement on National Security (Sept. 1, 2016), Labor Party website.)

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