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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.

France: New Law to Punish Prostitution Clients

(Apr. 28, 2016) On April 13, 2016, the French government promulgated a law that aims to end prostitution and fight human trafficking that is related to prostitution. (Loi n° 2016-444 du 13 avril 2016 visant à renforcer la lutte contre le système prostitutionnel et à accompagner les personnes prostituées (1) [Law No. 2016-444 of April 13, 2016, Aiming to Strengthen the Fight Against the Prostitution System and to Assist Prostituted Persons (1)], LEGIFRANCE (official French legal database).)

The overarching spirit of Law No. 2016-444 is to treat all prostitutes as victims. (Prostitution: la pénalisation des clients définitivement adoptée [Prostitution: The Penalization of Clients Ultimately Adopted], LES ECHOS (Apr. 6, 2016).) The two principal aspects of the new Law are furtherance of helping prostitutes transition out of prostitution and new rules to penalize clients of prostitution.  (Id.)

Support for Transition out of Prostitution

Public solicitation by prostitutes, which has been prohibited since 2003 and was punishable by up to two months in jail and a fine of up to €3,750 (about US$4,250), is no longer a punishable offense as a result of the adoption of Law No. 2016-444. (Loi n° 2016-444 du 13 avril 2016, art. 15.) The Law mandates that the government take additional measures to protect victims of prostitution and human trafficking and to provide them with special assistance, such as access to shelters and social reintegration centers. (Id. art. 5.)

The government is also required to set up a special program to help victims find jobs and activities that would allow them to leave prostitution behind and re-enter normal society. (Id.) Undocumented foreign prostitutes who cease prostitution activities and sign up for one of these programs may obtain a temporary residence permit that would allow them to legally work in France. (Id. art. 8.) The Law also creates a special fund within the government’s budget to finance measures to prevent prostitution, help victims of prostitution, and raise awareness among the public of the effects and dangers of prostitution. (Id. art. 7.)

Punishment of Clients

Law No. 2016-444 makes hiring a prostitute a punishable offense; formerly prostitution was not illegal even though public solicitation was. Anyone found guilty of being a client of prostitution may be punished with a fine of up to €1,500 (about US$1,700). (Id. art. 20.) This fine may be augmented by certain other punitive measures, such as a suspension of the person’s driver’s license or the requirement to do between 20 and 120 hours of community service.  (Id.) Additionally, a client of prostitution may be required to attend an awareness training course to sensitize him/her to the fight against prostitution. (Id. arts. 20 & 21.)

Second offenders may be punished by a fine of up to €3,750. (Id. art 20.) Being or seeking to be the client of a prostitute who is a minor or who is particularly vulnerable due to an illness, disability, or pregnancy is punishable by up to three years of imprisonment and a fine of up to €45,000 (about US$51,000). (Id.)

Reaction to the Law      

With the adoption of Law No. 2016-444 France has become the fifth European country to punish the clients of prostitution, following in the footsteps of (in this order) Sweden, Norway, Iceland, and the United Kingdom. Nonetheless it has proven to be controversial, with supporters and opponents on both sides of the political spectrum. (Prostitution: le Parlement adopte définitivement la pénalisation des clients [Prostitution: Parliament Ultimately Adopts the Penalization of Clients], LE MONDE (Apr. 7, 2016).)

Organizations representing sex workers were overwhelmingly opposed to the Law and staged demonstrations against it. (Dounia Hadni, Après deux ans et demi de débats, la pénalisation des clients votée [After Two and a Half Years of Debates, the Penalization of Clients Was Adopted], LIBERATION (Apr. 6, 2016).) Proponents of the Law, however, see it as a major victory for women’s rights and a significant step towards eliminating prostitution by targeting demand. (Prostitution: le Parlement adopte définitivement la pénalisation des clients, supra.)

Legislative Background

It took about two and a half years for Law No. 2016-444 to pass; the original proposal was first submitted in October 2013. (Proposition de Loi renforçant la lutte contre le système prostitutionnel [Bill to Strengthen the Fight Against the Prostitution System], No. 1437 (Oct. 10, 2013), ASSEMBLEE NATIONALE [NATIONAL ASSEMBLY], Quatorzième legislature [Fourteenth Legislature].) During that time, the proposed legislation went back and forth several times between the two chambers of Parliament, with the Senate amending the text to remove the penalization of clients and the National Assembly reinstating that measure. (Dossiers législatifs – Loi n° 2016-444 du 13 avril 2016 visant à renforcer la lutte contre le système prostitutionnel et à accompagner les personnes prostituées [Legislative Records – Law No. 2016-444 of April 13, 2016, Aiming to Strengthen the Fight Against the Prostitution System and to Assist Prostituted Persons], LEGIFRANCE (Apr. 14, 2016).)

The French Constitution provides that when the two chambers of Parliament are unable to agree on an identical bill, the final say should go to the National Assembly. (Constitution du 4 octobre 1958 (consolidated version as of Apr. 26, 2016), art. 45, LEGIFRANCE.) The National Assembly finally adopted the legislation, including the provisions penalizing clients of prostitution, in accordance with this constitutional provision. (Dossiers législatifs, supra.)

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India: Maharashtra Passes Legislation Against Social Boycott

(Apr. 28, 2016) On April 13, 2016, the state legislature of Maharashtra passed the Maharashtra Prohibition of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016. (Betwa Sharma, Maharashtra’s New Law Against Social Boycott Could Spark A Renaissance, Say Activists, HUFFINGTON POST (Apr. 14, 2016).)

The legislation prohibits the social boycott of individuals or families by caste panchayats (local caste councils) or any community and defines such behavior as an offense punishable with imprisonment, which may be up to seven years, or with a fine that may be as much as five lakh rupees (about US$7,522), or both.  (Draft Bill No. of 2015, A Bill to Provide for the Prohibition of Social Boycott of a Person or Group of Persons Including Their Family Members, and for Matters Connected Therewith or Incidental Thereto, § 4, Maharashtra government website (scroll past Hindi introduction to view English text).)

The statute also lists 15 acts that it considers to be acts that impose a social boycott on a member of a community. These include but are not limited to: expelling or causing to expel any member of a community from that said community; obstructing or preventing persons from observing any social or religious custom or ceremony or taking part in any social, religious, or community function; committing social ostracism on any grounds; and cutting off social and commercial ties with a member.  (Id. § 3.)

Under the new state Act, assembling or congregating in order to impose a social boycott is also punishable, with a fine.  (Id. § 4.)  The statute also punishes aiding or abetting in the commission of any offense under the Act with a maximum punishment of three years in prison or a fine of three lakh rupees (about US$4,515), or both.  (Id. § 7.)

Complaints can be filed by a victim or any member of the victim’s family, either through the police or directly to the magistrate.  (Id. § 12(1).) The Act also stipulates that the state government may appoint Social Boycott Prohibition Officers to detect the commission of offenses proscribed by the Act and to assist the magistrate and police officers in the discharge of their duties under the Act.  (Id. §§ 16 & 17.)

Background

The State of Maharashtra has seen several instances of social boycott of individuals “most often for marrying within the same gotra (clan) or outside the prescribed boundaries of caste.”  (Aarefa Johari, Fifty Years After Court Struck Down Law to Ban Social Boycotts, Maharashtra May Get a Second Chance, scroll.in (June 18, 2015).)  Village and caste councils, particularly in remote areas of the country, “wield immense power in communities which are governed by social codes rather than the law of the land.”  (Sharma, supra.)  Critics of the system argue that decrees of social boycotts or excommunication by village or caste elders have long been used as instruments of power and control.  (Id.)

It was reported, for example, that in 2015,

a mountaineer from a Raigad village, who had climbed the Everest in 2012, was boycotted by villagers because his wife, an advocate [lawyer] wore jeans and did not sport a mangalsutra [a necklace that a Hindu groom ties around the bride’s neck in a Hindu wedding ceremony] or bindi [a forehead dot commonly worn by Hindus]. The couple were isolated, excluded from temple functions and not even allowed to use water from the village tap. In April, 13 Dalit families from Osmanabad district were boycotted by upper caste villagers after a statue of Babasaheb Ambedkar was desecrated and the Dalits filed a police complaint.  The Dalits have been denied public water, access to grazing fields for cattle and even groceries in shops.  Even though the boycott has been called off, the 13 families continue to live in fear.  (Johari, supra.)

Previous Legislation on the Subject

Shortly after independence, the State of Bombay, which was eventually split into the States of Maharashtra and Gujarat, passed the Bombay Prevention of Excommunication Act, 1949, “to stop the practice of excommunication prevalent in certain communities.”  (Bombay Prevention of Ex-Communication Act, 1949, Preamble, LAWYER SERVICES.IN.)  The Act was challenged by the leadership of the Dawoodi Bohra community, and eventually, in 1962, the Act was declared unconstitutional by the Indian Supreme Court.  The Court held “that the exercise of the power of excommunication by its religious head [of the Dawoodi Bohra] on religious grounds formed part of the management of its affairs in matters of religion and the impugned Act in making even such excommunication invalid infringed the right of the community” to manage its own affairs in matters of religion protected under the Constitution.  (Sardar Syenda Taher Saifuddin Saheb v. The State of Bombay, 1962 A.I.R. 853, Headnote, The Judgments Information System website.)

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Brazil: Registration of Babies Born from In Vitro Fertilization or Surrogacy

(Apr. 28, 2016) On March 14, 2016, Brazil’s National Internal Affairs Office (Corregedoria Nacional de Justica, CNJ) published Act No. 52,  regulating the issuance of a birth certificate for children whose parents opted for reproductive techniques such as in vitro fertilization and “pregnancy by substitution” (barriga de aluguel), which is better known as “surrogacy.” (Provimento No. 52, de 14 de Março de 2016, CNJ website.) In the past, to register a child born under these circumstances it was necessary to obtain a court order, because there were no specific rules covering the situation. (Corregedoria Regulamenta Registro de Criança Gerada por Reprodução Assistida, CNJ (Mar. 15, 2016).)

According to article 1 of the Act, if the parents, whether heterosexual or homosexual, are married or live together in a stable union, only one of them can appear at the registrar’s office to register the child. On the birth certificate of a child of a homosexual couple, the document must be adapted so that their names appear without distinction as to paternal or maternal ancestry. In surrogacy cases, it is no longer required to include on the birth certificate the name of the woman who gave birth. (Act No. 52, art. 2 § 2.) In addition, knowledge of the biological ancestry does not imply recognition of a parental relationship or of legal links between a donor and a person generated through assisted reproduction. (Id. art. 2 § 4.) Officers of registrar’s offices are prohibited from refusing to register such children and if they refuse to do so may be subject to disciplinary sanctions. (Id. art. 2 § 3.)

To justify the adoption of the measures, the Act makes reference, inter alia, to article 227 § 6 of the Constitution, which states that regardless of whether born in or out of wedlock or adopted, children must have the same rights and qualifications and any discrimination with respect to filiation is prohibited. It also refers to a decision issued in 2011 by the Brazilian Federal Supreme Court with binding effect for the entire public administration and all the organs of the Judiciary, which recognized continuous, public, and lasting unions between persons of the same sex as creating families. (Constituição Federal [C.F.] (1988) art. 227 § 6, PLANALTO; Brazilian Federal Supreme Court [STF], Ação Direta de Inconstitucionalidade, ADI 4.277 & STF, Arguição de Descumprimento de Preceito Fundamental, ADPF 132, both on STF website.)

National Internal Affairs Office

The National Internal Affairs Office is part of the National Council of Justice (Conselho Nacional de Justiça) and carries out guidance, coordination, and implementation of public policies aimed at disciplinary activities and the proper performance of judicial activities of the tribunals and trial courts of the country. The main objective of the Office is to achieve greater effectiveness in adjudication, based on the constitutional principles of legality, impersonality, morality, publicity, and efficiency. (C.F. art. 37; Corregedoria Nacional de Justiça, CNJ website (last visited Apr. 25, 2016).)

National Council of Justice

The CNJ was created in 2004 through Constitutional Amendment No. 45 of December 30, 2004. (Emenda Constitucional No. 45, de 30 de Dezembro de 2004, PLANALTO.) It is a judicial agency responsible for the administrative and financial control of the judiciary and the supervision of judges. (C.F. art. 103-B (§ 4); for background on the CNJ, see Eduardo Soares, Brazil: International Adoption, GLOBAL LEGAL MONITOR (Mar. 28, 2014).)

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Sri Lanka: Electronic Media Authority Being Considered

(Apr. 26, 2016) Sri Lanka’s government is considering establishing an independent body that would regulate electronic media. The authority would be empowered and required to investigate complaints made against electronic media. The authority would be created with the input of media stakeholders; government officials noted that the body would not be designed to control media organizations and would not have government involvement. (Yohan Perera, Authority to Regulate Electronic Media, DAILY MIRROR (Apr. 19, 2016).)

The new body would be parallel to the existing Press Complaints Commission, which describes itself as “a voluntary self-regulatory mechanism inaugurated on October 15, 2003 by the media industry following an international conference whose outcome was the Colombo Declaration on Press Freedom and Social Responsibility of 1998 and re-visited in 2008.” (Overview, Press Complaints Commission of Sri Lanka website (last visited Apr. 21, 2016).)  In its first ten years, the Commission’s dispute resolution council investigated 1,000 press complaints and conducted workshops on ethics and self-regulation for journalists. (Sri Lanka’s Press Complaints Commission Marks Tenth Anniversary, INTERNATIONAL MEDIA SUPPORT (Feb. 5, 2104).)

Press Freedom in Sri Lanka

The U.S. State Department’s annual human rights report gives Sri Lanka a relatively high mark on press freedom, particularly in the last year, stating:

The law provides for freedom of speech, including for members of the press, and the government generally respected these rights. Following the January election of President Sirisena, the government substantially curbed its activities prohibiting free speech and the right to peaceful assembly, but some government officials nonetheless continued to harass members of the media. (U.S. Department of State, Sri Lanka, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2015, § 2(a), State Department website.)

The report goes on to state that “[i]ndependent media were generally active and expressed a wide variety of views without restriction.” (Id.) This statement contrasts with the assessment in the previous year’s report, in which the State Department said that the government under the previous president did not respect press freedom. (U.S. Department of State, Sri Lanka, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2014, § 2(a), State Department website.)

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Norway: District Court Says State Violated Breivik’s Rights

(Apr. 26, 2016) On April 20, 2016, the District Court of Oslo announced its verdict in the human rights case brought by Anders Behring Breivik, who had been convicted in 2012 of the murders of over 70 people. (Press Release, Oslo District Court, Verdict: Lawsuit Regarding Prison Regime and Claimed Violation of Human Rights (ECHR) (Apr. 20, 2016), Judiciary of Norway website.) Breivik had brought a case against the Norwegian state alleging human rights violations based on Norway’s obligations under the European Convention on Human Rights (ECHR), asserting that his treatment in prison violated articles 3 (inhumane and degrading treatment) and article 8 (right to family life, which includes protection of one’s personal communications).

Breivik claimed as human rights violations that he underwent non-proportional routine strip-searches, that he was kept in total isolation from other inmates, that he received no visitors, and that all of his mail was screened and/or censured by the state. (Advokaetfirmaet Storrvik [Storrvik Law Firm], Sluttinnlegg til Oslo tingrett [Closing Pleadings Before the Oslo District Court], Case Nr. 15-107496TVI-OTIR/02 (Storrvik Closing Pleadings) (Mar. 1, 2016), DOMSTOL.NO; Elin Hofverberg, Norway: District Court Hears Breivik Accusation of Violations of Human Rights, GLOBAL LEGAL MONITOR (Mar. 18, 2016);  ECHR (Nov. 4, 1950, as amended through June 10, 2010), Council of Europe website.)

The district court found that there was no violation of article 8 of the ECHR, but that there was a violation of article 3. (Oslo tingrett [District Court of Oslo] Apr. 20, 2016, Case No. 15-107496TVt-OTtR/02, at 37, DOMSTOL.NO (in Norwegian).) In its reasoning, the court especially pointed out that “ [t]he prohibition against inhumane and degrading treatment represents a fundamental value in a democratic society.  It applies regardless – also to terrorists and murderers.” (Id. at 13.)

Article 3 Violations 

The article 3 violations resulted from the totality of circumstances surrounding Breivik’s imprisonment.  The district court noted “the prolonged isolation [four years and nine months], the lack of grounds for determining whether the isolation is absolutely necessary, and the limited administrative opportunities for [Breivik to] appeal.” (Id. at 28.) The court went on to say that the state has not taken “sufficient compensatory measures” to prevent the disruptive effects of prolonged isolation nor “sufficiently considered his psychological health.” (Id.)

Specifically, the violations consisted of routine strip-searches before and after Breivik exited his cell to go to the outdoor area, his complete isolation from other inmates, and limited visitation opportunities that only occurred behind a glass window. (Id. at 24, 27, & 28.)

Isolation

The district court looked in particular at a psychologist’s continuing assessment of Breivik, who recommended that Breivik should be allowed to receive visitors without the separation of a glass wall. The court found that because Breivik is under stringent isolation and does not socialize with any other inmates, he should be given the opportunity to meet with his attorney in a more normal way. (Id. at 24.)

The district court chose to disregard state evidence that Breivik still presents a danger; that evidence consisted of the fact that Breivik had previously written to a local police station describing ways in which he could create weapons out of the items in his possession. Instead the court held that the deciding factor in determining the required security measures should be his actual behavior during his imprisonment, which, according to the court, has been “good.” (Id. at 25.)

Strip-Searches

In its decision, the district court questioned whether Breivik must be strip-searched following every visit to the prison courtyard, noting that doing so defies the purpose of the activity, which is designed to compensate for isolation. The court especially noted that Breivik has stated that he had several times “decided against visiting the courtyard so to avoid having to perform the strip-searches.” The court found that because of the otherwise very stringent security measures applied to Breivik, the additional strip-searches could not have been necessary. (Id. at 29.)

The court compared the treatment of Breivik to that of the inmate in the European Court of Human Rights case Van der Ven v. the Netherlands (Application No. 50901/99 (Feb. 4, 2003), HUDOC database, European Court of Human Rights website). The district court made no distinction between Breivik’s treatment and that of Van der Ven, although in the latter case the strip searches also included rectal searches. Instead the Court found that the positioning of Breivik (including the circumstance that he was forced to bend his knees) was by its very nature embarrassing to Breivik. Moreover, the presence of female staff was specifically mentioned as an aggravating circumstance, adding to Breivik’s humiliation. Coupled with the numerous other interventions against him, the routine strip-searches could not be considered proportional or necessary. (Oslo tingrett, supra, at 29.)

The district court did not take into consideration the fact that the number of strip-searches of Breivik had been considerably reduced following his move to Telemark prison. (Id. at 5.)

Article 8 Issues

Article 8 of the ECHR states that persons have a right to family life and protection of their personal communications. Limits can only be placed on these rights if they are necessary in a democratic society.  Breivik had complained that his communications were censured, specifically that his letters were read and censured or discarded, and that he did not receive visitors other than his lawyer and health professionals.  (Storrvik Closing Pleadings, supra.) The District Court noted that Breivik was sentenced for a politically motivated terror crime and that it is against this background that an examination of the legality of the censorship of his correspondence must be viewed.  (Oslo tingrett, supra, at 32.) Because the security measures surrounding his communications are needed in a democratic society, the Court found that censuring Breivik’s correspondence does not violate his article 8 rights. (Id. at 34.)

By the same logic, the District Court found that the fact that the Norwegian state wished to prevent Breivik from receiving visits or phone calls from right wing extremists was also not a violation of his article 8 rights. Moreover, the Court went on to say that the limits on visitors were at least in part caused by Breivik himself, noting that he did not want to see his father and that no one else wanted to see him. (Id.) The District Court concluded that “neither separately nor in totality, do the measures constitute a violation of article 8 of the ECHR.” (Id. at 35.)

Effects of the Decision

The most important measure in the changed treatment of Breivik, according to the District Court, is that the state should perform an evaluation as to whether or not Breivik could meet with his lawyer without being separated by a glass window. Moreover, the state will have to further analyze which restrictions are necessary, ensuring that they are sufficiently considered, particularly in the light of Breivik’s health. (Id. at 23 & 28.) Breivik will not receive any compensation as a result of the violations of his human rights, but the state is responsible for paying for Breivik’s attorney fees. (Id. 35.)

Reactions to the Outcome of the Case 

The verdict was met with surprise by Norwegian legal commentators, who had expected the state to win but praised the judge for showing courage by producing a verdict that was clearly at odds with public opinion. (Andreas Bakke Foss, Andreas Slettholm, & Håkon Letvik, Eksperter om Breivik-dommen: – Dette er veldig overraskende [Experts on Breivik Verdict: This Is Very Surprising], AFTENPOSTEN (Apr. 20, 2016).)

Breivik’s attorneys have decided, according to news reports, that they will not appeal the article 8 part of the verdict as they were happy with the article 3 determination, stating that the verdict should be interpreted as an order to end the isolation of Breivik, and specifically enable him to spend time with other inmates. (Breivik må få kontakt med andre innsatte [Breivik Must Have Contact with Other Inmates], NRK (Apr. 20, 2016).)

At the advice of the Attorney General of Norway, the Norwegian state has decided to appeal the verdict. (Press Release, Ministry of Justice and Public Security, Staten anker tingrettens dom i Breivik-saken [State to Appeal District Court Verdict in Breivik Case] (Apr. 26, 2016).)

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