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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: Court Recognizes Exclusive Fishing Rights of Sami Village

(Feb. 9, 2016) On February 3, 2016, the District Court of Gällivare announced its verdict in a hunting and fishing rights dispute between the government of Sweden and Girjas, a Sami village (a community of the indigenous Sami people that is a special legal entity with special legal rights and duties different from an ordinary Swedish village).  (Press Release, Gällivare District Court, Dom i målet mellan Girjas sameby och Staten genom Justitiekanslern [Judgment in the Case of Girjas Sami and the State, Through the Chancellor of Justice] (Feb. 3, 2016), Gällivare District Court website; District Court of Gällivare, Case T 323-09 Feb. 3, 2016 (on file with author).)

Background 

The Sami village Girjas sued the government to obtain a declaratory judgment that it has the sole fishing and hunting rights to the area in which the village was located or, in the alternative, that at least Girjas shares joint control over the hunting and fishing rights with the government. (Case T 323-09, supra, ¶ 2.)

The District Court decided in favor of the Sami village and declared that Girjas has the sole hunting and fishing rights to its land, based on the principle of urminnes hävd (prescription by time immemorial).  The Court found that the Sami have been living, hunting, and fishing on the land in question for at least 1,000 years and that the population thus have rights to it through prescription by time immemorial.  (Id. ¶ 6.19.)

Prescription by Time Immemorial

Prescription by time immemorial is, according to the District Court, a longstanding tradition in Swedish law first initiated in the Kristoffer Landslag (King Kristoffer’s National Law from 1442) as a way of acquiring property, in addition to acquisition by heritage, trade, purchase, gift, or deed (indebtedness). Since then the concept made its way into the Swedish Land Law Code of 1734; it was defined there as “when a property or right has been enjoyed for such a long time, and exercised, that no one remembers how and when the right came to be.”  (Id. ¶ 6.16.2.)

The District Court prescribed as the test for prescription by time immemorial that there be an area of land at issue and that the land in question:

  • be defined;
  • have distinct borders;
  • be in use by someone without protest from any other party; and
  • has been in that status for at least 90 years. (Id. ¶ 6.16.2.)

According to the District Court, the Sami have enjoyed fishing and hunting rights based on the principle of prescription by time immemorial from the time the Swedish state implemented legislation recognizing this type of acquisition of rights in the Swedish Land Law Code of 1734. The District Court found that no measure or act had caused that right to be invalidated and that the Sami of that region still enjoy these rights.  The Court thus declared Swedish legislation that permits the Swedish state to give out hunting and fishing permits on the property as in violation of the Swedish Constitution (Regeringsformen) as applied in this case.  (Id. ¶ 6.19.)

The Court went on to declare that Girjas has the exclusive right to grant fishing and hunting permits on the property. (Id.)

Chancellor of Justice (Justitiekansler) Anna Skarhed, who represents the state, expects that the state will appeal the decision. (Nils Eklund, Troligt att domen överklagas [Judgment Likely to Be Appealed], SR (Feb. 3, 2016).)

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EHCR/Hungary: Mass Surveillance Activities by Police Force Violate the Right to Privacy, Home and Correspondence

(Feb. 9, 2016) On January 2016, the European Court of Human Rights (ECHR) delivered a judgment in the case of Szabo and Vissy v. Hungary. The ECHR held that broad secret surveillance activities that had been conducted by the Hungarian Anti-Terrorism Task Force, which was established within the police force on the basis of the 2011 anti-terrorism legislation, had violated the rights of the applicants. The grounds for the decision included Hungary’s failure to provide judicial oversight over Task Force actions and other sufficiently precise and effective safeguards. (Case of Szabó and Vissy v. Hungary (Application no. 37138/14) (Jan. 12, 2016), HUDOC.)

The case arose when two Hungarian lawyers challenged before the Constitutional Court of Hungary the country’s 2011 anti-terrorism legislation because it permitted sweeping secret surveillance activities. They alleged that the Anti-Terrorism Task Force engaged in illegal activities such as clandestine house searches and surveillance through secret recording of conversations, opening of letters and parcels, and checking and recording the contents of electronic communications without the consent of the persons affected by such activities. (Id. ¶¶ 6-16.)

Following the Constitutional Court’s dismissal of their case, the lawyers filed a complaint with the ECHR, arguing that the legislation in question violated their right to privacy, home, and correspondence under article 8 of the European Convention of Human Rights on the grounds that they could potentially be subjected to unjustified and disproportionately intrusive measures. (Id. ¶ 3; Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms (Nov. 4, 1950, as amended by Protocols), art. 8, EUROPEAN CONVENTION ON HUMAN RIGHTS, ECHR website.)

The ECHR concluded that there was indeed a violation of article 8 on the following grounds:

  • the extent of surveillance practices was so broad that they “could include virtually anyone”;
  • the authorization order was carried out by the executive branch and without an assessment of strict necessity;
  • the government intercepted masses of data concerning even persons outside the original range of operations; and
  • there was an absence of ex post facto effective judicial supervision of surveillance activities. (Case of Szabó and Vissy v. Hungary, ¶ 89.)

The ECHR did not award just satisfaction for any non-pecuniary damage suffered by the applicants, because the finding of a violation of the right to privacy, home, and correspondence was in itself sufficient just satisfaction. However, it awarded €4,000 (about US$4,385) for costs and expenses. (Id. ¶ 5.)

The Chamber’s judgment will remain final unless the Hungarian government refers the case to the Grand Chamber (GC) within the required deadline of three months from the time the judgment was issued. (European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 43.) A panel of five judges of the GC will decide whether the GC will consider the case. The GC is composed of 17 judges, including the Court’s President and Vice-Presidents, and the national judge, with other judges drawn by lot. In referral cases, the GC does not include any judges who first reviewed the case. The decision of the GC is final. (The ECHR in 50 Questions (Feb. 2014), ECHR website.)

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Iran: Political Offenses Defined

(Feb. 9, 2016) On January 24, 2016, Iran’s Parliament, the Majles, passed a draft law that for the first time defines what constitutes a “political offense” in Iran. (Jacqueline Jones, Iran Parliament Defines ‘Political Offenses,’ PAPER CHASE (Jan. 24, 2016).) The legislation was adopted by a vote of 112-13, with seven abstentions.  (Iranian Deputies Approve Bill Defining ‘Political Crimes,’ Tehran Fars News Agency (Jan. 24, 2016), Open Source Center online subscription database, Doc. No. IML2016012432590636.)

The legislation defines as a “political crime” an act “committed against the administration, political bodies and domestic and foreign policies and with the aim of reforming the country’s affairs.” (Iranian Deputies Approve Bill Defining ‘Political Crimes,’ supra.)  These political crimes include:

  • “[i]nsulting the heads of three branches of government, the Expediency Council chairman, the president and his deputies, members of the Islamic Consultative Assembly [Majles], members of the Assembly of Experts and Guardian Council …”;
  • insulting “the heads of foreign countries or their representatives in Iran”;
  • violating election laws, but violations “committed by executive and supervision committee members” are excluded; and
  • spreading lies. (Iranian Deputies Approve Bill Defining ‘Political Crimes,’ supra; New Bill Criminalises Insulting Assembly of Experts Members, MPs, Ministers, Ambassadors …, DIGEST OF IRAN NEWS (Jan. 25, 2016), Open Source Center online subscription database, Doc. No. FPI20160131091704 [click on hyperlink to Open Source New Zealand document].)

The Expediency Council is an advisory body for the Supreme Leader (currently Ayatollah Ali Khamenei), who appoints its members, and it has the ultimate power in adjudicating disputes between the Majles and the Guardian Council over legislation. (Expediency Council, BBC NEWS (last visited Feb. 5, 2016).) The Assembly of Experts is responsible for appointing the Supreme Leader, for monitoring his performance, and for removing him from office if he is considered to be unable to fulfill his duties.  (Assembly of Experts, BBC NEWS (last visited Feb. 5, 2016).) The Guardian Council, described as “the most influential body in Iran,” comprises “six theologians appointed by the Supreme Leader and six jurists nominated by the judiciary and approved by parliament.” (Guardian Council, BBC NEWS (last visited Feb. 4, 2016).) The Council members serve for six years on a phased basis, so that there is a change in half the membership every three years. (Id.)

The offenses listed above are reportedly considered to be political crimes if they are committed “with the intent to damage” the establishment, but the legislation passed by the Majlis, Shargh newspaper noted, did not clarify the criterion for “intent.”  (Bill Criminalises Insulting Assembly of Experts Members, MPs, Ministers, Ambassadors …, supra.) Ettela’at newspaper was quoted as reporting that as a result of the new legislation, security offenses are now separated from political ones and cyber offenses, such as posting criticism to cyberspace or social media, are not considered to be political offenses.  (Id.)

Under the new legislation, the following crimes are listed explicitly as non-political ones:

  • assassination attempts on local and foreign officials;
  • kidnapping, taking hostages, and illegally depriving individuals of their freedom; bombing and threatening to do so;
  • aircraft hijacking, and piracy;
  • espionage and revealing secrets;
  • provoking people to secession, war, killing, and clashes;
  • causing disturbance in data or computer and telecommunication systems used for providing necessary public or government services;
  • murder, theft, and looting;
  • illegal possession of and selling or buying of weapons and narcotics; and
  • taking or giving bribes and [transferring] or receiving bribe[s]. (Iranian Deputies Approve Bill Defining ‘Political Crimes,’ supra.)

Assessments of the Legislation

According to one commentator, “this bill will be a proper start to prepare ground for the revival of Article 168 of the Constitution,” which provides for the grounds on which press and political offenses are to be handled, but does not give a definition of such crimes.  (“Majles Bill on Political Crimes,” in Highlights: Iranian Daily Developments 20 January 2016 (Jan. 20, 2016), Open Source Center online subscription database, Doc. No. IMR2016012012445832 OSC.) Article 168 states: “political and press offenses will be tried openly and in the presence of a jury, in courts of justice. The manner of the selection of the jury, its powers, and the definition of political offenses, will be determined by law in accordance with the Islamic criteria.” (Iran – Constitution (Oct. 24, 1979, in force on Dec. 3, 1979, as amended July 28, 1989), art. 168, University of Bern, Switzerland, website.)

The commentator further noted that aside from the legal advantages of the legislation, it also has a political one of removing a ground for the exertion of foreign pressure against Iran, because, in the absence of measures separating political crimes from security offenses, Iran has been accused “of keeping a large number of political prisoners behind bars,” yet according to Iranian law there were no political prisoners because political crime was yet to be defined. (Id.) Reportedly, “[m]ost people considered by human rights groups to be political prisoners in Iran are charged with security offences, which are often subject to secret tribunals.” (Iran Parliament Defines “Political Crimes” in Apparent Nod to Reform, REUTERS (Jan. 24, 2016).)

While the government of President Hassan Rouhani’s praised the legislation as a step towards reform, Vice President for Parliamentary Affairs, Majid Ansari, indicated that it “did not go far enough because it did not provide enough detail” and stated it “does not have sufficient breadth, because defining political crimes is a difficult task.” (Id.)

Next Steps

For the draft legislation to become law, it must also be ratified by the Guardian Council and signed into law by the President of Iran. (Iran – Constitution, arts. 91 (on the Guardian Council), 94 (on Guardian Council ratification), & 123 (on President’s power to sign laws); Islamic Republic of Iran: The Legislative, IRAN YEAR BOOK (1996).)

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Germany: Proposed Tightening of Asylum Rules

(Feb. 8, 2016) On February 3, 2015, the German government agreed on a set of stricter asylum measures (“Asylum Package II”). The Asylum Package II would accelerate the asylum application process; suspend family reunification for refugees with subsidiary protection status for a period of two years; decrease asylees’ monthly cash benefits; facilitate deportation; establish a new Federal Police unit to help procure replacement documents; improve the safety of refugee minors; and designate Algeria, Morocco, and Tunisia as safe countries of origin. (Kabinett beschliesst Asylpaket II. Schnellere Verfahren, weniger Familiennachzug [Cabinet Agrees on Asylum Package II. Faster Procedures, Less Family Reunification], German Federal Government website (Feb. 3, 2016).)  The measure will now be debated by the Bundestag.

According to the monthly statistics of the Federal Office for Migration and Refugees, Germany received 52,103 asylum applications in January 2016, representing an increase of 108.1% compared to January 2015. Most of the applicants in January 2016 came from Syria (27,306), Iraq (6,636), and Afghanistan (4,949). The applications of Syrians were approved in 99.1% of the cases, whereas the success rates for Iraqis and Afghans were 88% and 47.2%, respectively. Of the total number of January 2016 applications, 64% were approved. (Bundesamt für Migration und Flüchtlinge [BAMF] [Federal Office for Migration and Refugees], Asylgeschäftsstatistik für den Monat Januar 2016 [Asylum Statistic for the Month of January 2016], at 2, BAMF website (Jan. 2016).)

Acceleration of the Asylum Application Process

Asylum applications from refugees with limited prospects of receiving asylum status, who fall into categories listed in the law, would be processed within a week under the proposed Package II. If a refugee decides to appeal the decision, the appeals proceedings would be concluded within two weeks. During the time of the accelerated procedure, the asylum seeker would have to live in a special reception center and would only receive benefits if he or she stayed at that particular facility. (Kabinett beschliesst Asylpaket II , supra.) The Asylum Procedures Directive of the European Union explicitly provides for such an accelerated examination procedure. (Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection (Recast), 2013 O.J. (L 180) 60, art. 31 ¶ 8, EUR-LEX.)

Suspension of Family Reunification for Refugees with Subsidiary Protection Status

Refugees who were granted subsidiary protection status, but not accepted as asylees, will not be able to bring their families to join them for a period of two years. (Kabinett beschliesst Asylpaket II , supra). Subsidiary protection is codified in section 4, paragraph 1, of the Asylum Act and is awarded to applicants who can prove that they are threatened with serious harm in their country of origin. “Serious harm” is defined as the “imposition or application of capital punishment, torture or inhuman or degrading punishment or treatment, or a serious individual threat to the life or integrity of a civilian as a result of indiscriminate violence in an international or internal armed conflict.” (Asylum Procedure Act (Sept. 2, 2008, current to Dec. 23, 2014), BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1798, as amended, § 4, ¶ 1, GERMAN LAWS ONLINE (unofficial English translation; note: the translation does not reflect the title change from “Asylum Procedure Act” to “Asylum Act” (Asylgesetz).) Applicants subject to subsidiary protection are initially granted a residence permit for one year, which can be extended for two additional years, as opposed to the three-year residence permits for asylees. (Residence Act [Aufenthaltsgesetz [AufenthG]] (Feb. 25, 2008, current to Sept. 2013), BGBl. I at 162, as amended, § 26, ¶ 1, sentence 3, GERMAN LAWS ONLINE (unofficial English translation).)

Adjustment of Monthly Benefits

The Asylum Package II calls for a reduction by ten euros of the monthly cash benefits for a refugee’s personal use prescribed in the Asylum Seekers Benefits Act. A single recipient living in a reception facility would therefore receive €133 (about US$146) instead of €143. (Kabinett beschliesst Asylpaket II, supra; Asylbewerberleistungsgesetz (AsylbLG) [Asylum Seeker Benefits Act] (Aug. 5, 1997), BGBl. I at 2022, § 3, ¶ 1, GERMAN LAWS ONLINE .)

Facilitation of Deportation

Currently, refugees are able to prevent deportation by claiming they face medical problems and there is insufficient health care in their country of origin. According to the proposed rules, only serious or life-threatening diseases that could worsen because of the deportation will be taken into account. The seriousness of the disease would have to be demonstrated by a medical certificate from an accredited medical practitioner. The fact that the available medical care is not comparable to that found in Germany would not be a sufficient reason in itself to prevent the deportation. (Kabinett beschliesst Asylpaket II, supra.)

Replacement Documents

Given that refugees without documents cannot be deported and in order to facilitate the deportation of such refugees, the government decided to establish a new unit that will help these individuals procure replacement documents. The unit would be part of the Federal Police and would work closely with the German states. (Id.)

Safety of Refugee Minors

The Asylum Package II contains rules that would improve the protection and safety of refugee minors housed in reception centers and in community housing. Every person who works at such a facility would have to provide the employer with a detailed police record. (Id.)

Safe Countries of Origin

Under the new package, Algeria, Morocco, and Tunisia would be designated safe countries of origin and added to the list contained in Appendix II of section 29a of the Asylum Act. (Id.) The designation as a safe country of origin allows the accelerated processing of applications from asylum seekers from these countries, because there is a rebuttable presumption that the application is manifestly without merit. (Asylum Act, § 29a ¶ 1.) In cases where an applicant is from one of these countries, he or she has only one week to leave Germany (id. § 36, ¶ 1), instead of the usual 30 days, when an application is rejected. (Id. § 38, ¶ 1.)

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Israel: Foreign-Trained Dentists Immigrating to Israel May Be Exempt from Licensing Exams

(Feb. 8, 2016) On January 25, 2016, the Knesset (Israel’s parliament) passed legislation authorizing the Minister of Health to determine conditions for either fully or partially exempting new immigrants from testing requirements otherwise applicable to persons seeking a license to practice dentistry in Israel. (Dentists Ordinance Amendment (No. 6) Law, 5776-2016 (Amendment Law), Knesset website (in Hebrew) (scroll down to appropriate link); Dentists Ordinance (New Version), 5739-1979, 3 Laws of the State of Israel (LSI) (New Version) 101 (1981, as amended).)

Standard Licensing Requirements for Dentists

Under section 6(c) of the Dentists Ordinance, one of the conditions for obtaining a license to practice dentistry in Israel is to pass an exam set by the General Manager of the Ministry of Health (GMMH), in consultation with the Science Committee of the Dental Medicine Association in Israel (DMAI). (Dentists Ordinance § 6(c).)

In accordance with Regulation 4 of the Dentists (Licensing Exam) Regulations 5752-1992, as amended, a dentistry license exam includes two parts: a written substantive test and a practical exam that includes making a diagnosis, preparing a treatment plan, and performing “manual tasks.” The topics covered in the exams are listed in the appendix of the Regulations.  (Dentists (Licensing Exam) Regulations 5752-1992, Kovetz Hatakanot [SubsidiaryLegislation] 5752 No. 5459 p. 1342 (in Hebrew).)

Both the written and the practical parts of the exam are held in the Hebrew language or, to the extent possible, in a language of the examinees, based on authorization by the examining committee. This committee is appointed by the GMMH for implementation of the Regulations. (Id. §§ 6, 8-9.)

Changes to Exam Requirement

The Amendment Law authorizes the Minister of Health to issue regulations to either fully or partially exempt applicants from having to pass the dentistry licensing exams. Applicants who may enjoy this exemption must be licensed and have practiced dentistry in a foreign country in a lawful status and at a “proper professional level” for a period of at least five years.  (Amendment Law § 2.)

According to the explanatory notes for the draft bill of the Amendment Law, the Amendment Law was proposed “… in view of the expected immigration wave among practicing dentists and to assist these new immigrants to integrate and practice the profession also in Israel.” (Dentists Ordinance Amendment (No. 6) Draft Bill, 5776-2015, Government Bill 991, Knesset website (click link for Issue No. 991).) A similar exemption, according to the explanatory notes, exists in section 4(A1) of the Physicians Ordinance.  (Physicians Ordinance (New Version), 5737-1976, 3 LSI (New Version) 80 (1981, as amended).)

Reactions to the New Law

The Amendment Law was opposed by Israeli dentists, who expressed concern that it would lower the level of dentistry in Israel and harm Israeli patients. According to Dr. Itsik Chen, DMAI Chairman, “the Amendment Law is not fair to dentistry students in Israel who take the licensing exams or to the patients.”  Chen reportedly said that the DMAI would insist that the Ministry of Health consult the Association on ways to implement the Amendment Law “to ensure that a dentist who receives an exemption would indeed deserve it.” (Eti Gal, Approved: An Exemption from Exam for Dentists Who Studied Abroad, YNET (Jan. 25, 2016) (in Hebrew).)

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