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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.

Egypt: Ministerial Resolution Regulating the Marriage of Egyptian Women to Foreigners

(Feb. 11, 2016) In December 2015, the Egyptian Minister of Justice issued Ministerial Regulation No. 9200 of 2015 to regulate the registration process for marriage contracts between Egyptian women and foreign men. The new Regulation relates to Law No. 103 of 1976 on the same subject. (Ministerial Regulation No. 9200 of 2015, 278 AL WAQA’A AL MASRYIA [EGYPTIAN AFFAIRS, published as an appendix to Egypt’s official gazette] (Dec. 8, 2015) (in Arabic).)

Article 1 of the new Regulation, the sole article in the legislation, stipulates that in order to register the marriage contract, if the foreign husband is 25 years older than his Egyptian wife, he must create a certificate of deposit in the amount of 50,000 Egyptian pounds (about US$6,400) under the wife’s name. (Id. art. 1 at p. 8.)

Reactions to the Regulation

Many human rights organizations and activists oppose the new Regulation, claiming that it essentially permits human trafficking for the purpose of sexual exploitation. Thanaa al-Saeid, a member of the National Council for Women, criticized the Regulation by stating that it only allows Egyptian women to be perceived as an expensive commodity in the trafficking market. Regardless of the amount paid by the foreign men as required by the Regulation, al-Saeid argues, it promotes short-term marriages.  (Sonia Farid, Does Egypt’s New Tourist Marriage Law Really ‘Protect Women?, AL-ARABIYA (Jan. 18, 2016).)

Nehad abu al Qumsan, a women’s rights activist, stated that foreign men enter such marriage contracts to prevent any legal problems, because, in some cases, one girl can be married off two or more times in less than a month. (Id.)

Hoda Badran, the Director of the Union for Arab Women, also criticized the concept of setting an amount of money to legalize the marriage. She stated that it is a “useless approach” that fails in protecting the rights of women or in reducing the number of those marriages. Badran also said that for many foreign men (especially from the Gulf States), 50,000 Egyptian pounds is actually a pittance, with some of them paying this amount for a few dinner outings. (Id.)

In response to the criticism, Hamdi Moawad, an Egyptian Ministry of Justice spokesman, stated that the new Regulation not only sets an amount of money to be paid to the Egyptian wife, but also requires the foreign husband to submit documents from his embassy that contain information about him, his income, and his marital status before he can be granted a marriage license. Moawad claimed that these requirements will protect the wife’s rights. (Egyptian Marriage Law Called “Legalized Prostitution,” Stowe LL.P website (Jan. 19, 2016).)

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Israel: Expansion of Police Body Search Powers

(Feb. 11, 2016) On February 2, 2016, the Knesset (Israel’s parliament) passed legislation expanding the powers of police to conduct body searches. (Authorities for Protecting Public Safety (Amendment No. 5 and Temporary Provision) Law, 5776-2016 (Amendment Law), Knesset website (in Hebrew) (click on appropriate link to view); Authorities for Protecting Public Safety Law 5765-2005 (Authorities Law), SEFER HAHUKIM [Book of Laws] 5765, No. 2022, p. 758 (in Hebrew).)

Authorization Based on a Reasonable Suspicion of Violence by Individuals or Groups 

The legislation authorizes a police officer who has “a reasonable suspicion” that a person or a group of persons is about to commit a violent offense against another person to conduct a body search of the suspected would-be perpetrators. A body search under these circumstances may be conducted to check whether the suspect(s) are unlawfully carrying a firearm.  (Amendment Law, adding § 3(B1)(1) to the Authorities Law.)

For the purpose of implementation of this authority, a reasonable suspicion may arise from, among other factors, a person’s violent behavior in a public place, including verbal violence or threats, or a behavior that is otherwise threatening or frightening. (Id.)

Authorization to Conduct Body Searches in Areas Prone to Terrorist Activity   

The Amendment Law further authorizes district commanders of the Israel Police to declare an area as an area where there is “a real concern” that a “hostile terrorist activity” will be committed. Such a declaration will result in the authorization of police to conduct a body search of a person to check if she/he is unlawfully carrying a firearm.  The authorization for the search in an area subject to the above declaration applies even if no reasonable suspicion exists, as defined under the new section 3(B1)(1) of the Authorities Law or under section 3(b) of the Authorities Law, in regard to the person subjected to the search.  Searches under section 3(b) of the Authorities Law apply to situations in which there is a reasonable suspicion that a person unlawfully carries or is about to unlawfully use a firearm in a vehicle.  (Amendment Law § 2, adding § 6B, temporary provision, to the Authorities Law.)

A declaration of an area as one where body searches may be conducted under section 6B of the Authorities Law should designate the location where suspicion of hostile terrorist activity was determined to exist. It should similarly specify the duration of the designation, which should not exceed 21 days.  The declaration may be renewed for additional periods, each time not exceeding 21 days.  The declaration period may be extended, but cannot exceed two months without the approval of the Police General Commander (PGC).  (Amendment Law § 2, adding § 6B(b) to the Authorities Law.)

The Amendment Law requires the PGC to determine procedures for how a body search should be conducted. The procedures must ensure that the search will be restricted to meeting its objective, which is the prevention of violent offenses or a terrorist act.  In addition proper notice must be given to passersby that an area is subject to the declaration described above.  (Id., adding § 6B(d) to the Authorities Law.)

The Amendment Law further requires the Minister of Public Security to submit a report to the Knesset Constitution Law and Justice Committee on an annual basis on the number and location of declarations issued under the Amendment Law. The report should include the reasons for declarations issued during the past year; the number of searches conducted; and the impact of the declarations, in the opinion of the Minister, on public safety.  (Id., adding § 6B(e) to the Authorities Law.)

Search by Police Personnel to Be of Same Gender as Person Searched 

In accordance with the Authorities Law, body searches must be conducted by a person of the same gender as the person subjected to the search, unless it is impossible under the circumstances and any delay in the search would endanger public safety or the safety of the person him/herself. (Authorities Law § 3(C)(1).)  Additionally, the parts of a person’s body that are normally covered will not be publicly uncovered unless necessary to prevent imminent danger to public safety.  (Id. § 3(C)(2).)

Rationale for the Amendment Law 

In introducing the Amendment Law for final approval, Knesset Member Nisan Slominski, Chairman of the Knesset Constitution Law and Justice Committee, stated:

The committee opined that the security situation requires providing the police additional powers to search for firearms on a person, even when there is no reasonable suspicion that the person who is subjected to the search unlawfully carries a firearm, in places subject to the regional commander’s declaration. At the same time, the committee opined that a threshold of real suspicion that a hostile terrorist activity might take place in that location was required.  The committee opined that currently it would not be appropriate to adopt the provision on searches [based on] security [concerns] as a permanent provision; this is why this provision was made [a temporary] provision for a period limited to two years.  (Press Release, Final Approval: Authorities for Protecting Public Safety Law So-Called “Stop- and-Frisk Law,” Knesset website (Feb. 2, 2016) (in Hebrew).)

Criticism of the Amendment Law was expressed by Knesset opposition members, who stated concern over the wide scope of the authorization and the possibility that the police might automatically suspect persons “with Middle-Eastern appearance, with dark skin …, members of the Ethiopian community, minorities, and the Haredi [ultra-Orthodox Jews].” (Id., statement of Knesset Members Yael German, Revital Swid, & Jamal Zahalka.)

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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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