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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.

Netherlands: Crime Victims’ Rights Enhanced

(May 3, 2016) On April 26, 2016, the Dutch Senate (Eerste Kamer) adopted a legislative proposal put forward by the Minister of Security and Justice that gives victims of serious crimes the right to be heard in the courtroom and to express, “for example, [what they] think about the guilt of a suspect and what the punishment should be.” Formerly, the victims were only permitted to relate what the crime had meant to them personally. (Unlimited Right to Be Heard for Victims as from [sic], Ministry for Security and Justice website (Apr. 12, 2006).)

Amendment of the Code of Criminal Procedure

The new law amends the Code of Criminal Procedure and also the Damages Fund for Violent Crimes Act. For example, under article 51e of the current Code of Criminal Procedure, a victim may exercise the right to make a verbal statement at a court session “if the offence as charged in the indictment is a serious offence which carries a statutory term of imprisonment of at least eight years, or any of the serious offences referred to … [in specified sections] of the Criminal Code and section 6 of the Road Traffic Act 1994 … .” (Code of Criminal Procedure (valid as of Oct. 8, 2012, with amendments coming into effect on Jan. 1, 2013, incorporated), art. 51e ¶ 1), EJTN (European Judicial Training Network); Wetboek van Strafvordering [Code of Criminal Procedure] (Jan. 15, 1921, as last amended effective Nov. 17, 2015), OVERHEID.NL.)

The amending law adds to the same provision a sentence to the effect that persons authorized to do so who intend to exercise their right to speak should inform the prosecutor in writing before the start of the court session, so that the official can call on them at the appropriate time. In the same article 51e, a new second paragraph has been added to expressly state that “the victim may make a statement at the hearing.”  (Wet van 14 april 2016 tot wijziging van het Wetboek van Strafvordering ter aanvulling van het spreekrecht van slachtoffers en nabestaanden in het strafproces en wijziging van de Wet schadefonds geweldsmisdrijven ter uitbreiding van de mogelijkheid van uitkering aan nabestaanden [Act of April 14, 2016, Amending the Code of Criminal Procedure to Supplement the Right to Speak of Victims and Families in Criminal Proceedings and Amending the Criminal Injuries Compensation Fund Act to Expand the Possibility of Payment to Survivors] (Act of April 14, 2016), STAATSBLAD VAN HET KONINKRIJK DER NEDERLANDEN, No. 160 (Apr. 26, 2016), art. I A.) Other changes to article 51 chiefly streamline the paragraphs related to statements that may be made by the father or mother of a victim who has not reached the age of majority and by surviving relatives of a deceased victim. (Id.)

Amendment of the Damages Fund for Violent Crimes Act

According to the Damages Fund for Violent Crimes Act, payments from the Fund will be made to, among others, the next of kin of a person who is deceased as a result of the commission of an intentional violent crime in the Netherlands or such a crime committed on a Dutch vessel or aircraft outside the Netherlands. (Wet schadefonds geweldsmisdrijven (June 26, 1975, as last amended effective Jan. 1, 2012), art. 3 ¶ 1, OVERHEID.NL; Damages Fund for Violent Crimes Act (and related Decree) (undated but appended with  the amending Act of 14 December 2005 Implementing Directive No. 2004/80/EC Relating to the Compensation of the Victims of Crime, and the related Decree, EUROPA.)

The amending law changes this article to include the survivors of deceased victims of road traffic violations and of crimes of negligence. (Act of April 14, 2016, art. II(A).) The new law also extends the time in which a compensation application may be submitted to the Fund, from the current “within three years of the day on which the crime in question was committed” under article 7, paragraph 1, to ten years. (Id. art. II(B).)

Rationale for the Amendments 

According to the Ministry of Security and Justice, the amending law will serve to eliminate the differences in practice that had formerly prevailed in courts, whereby victims might in some cases be given the opportunity to talk about the perpetrator’s sentence, but not in others, because the court adhered to the strict formulation of the law before this recent amendment. (Unlimited Right to Be Heard for Victims as from, supra.) The Ministry indicated that, because before appearing in court victims must be well prepared “for their right to be heard and the possible consequences,” the victims will be given assistance by various authorities, such as the Netherlands Victim Support group or lawyers specializing in victims’ rights. (Id.) The public prosecutor can discuss the case with the victim during the victim interview, to give him or her in particular an idea of “what the victim may expect of the hearing at the court session, the demand of the public prosecutor and the final judgement of the judge.” (Id.)

Under the amending law, the Minister of Security and Justice is to send a report to the Parliament on the effectiveness and impact of the law five years after its enactment. (Act of April 14, 2016, art. IIA. ) 

Additional Legislation on Crime Victims’ Rights

The Dutch House of Representatives (Tweede Kamer) adopted draft legislation on April 12, 2016, that provides for victims of crime to “immediately receive all information about their rights,” such as their options for protection and legal counsel, “during their first contact with the police and public prosecutions department.” In addition, they will be given advice on the possibilities for compensation and how the reporting on the case is to proceed. (House of Representatives Agrees with Extra Rights for Victims in Criminal Proceedings (Apr. 12, 2016), Ministry of Security and Justice website.)

Under the draft proposal, police, the public prosecutions departments, and other organizations are to pay more attention in practice to contact with victims who are minors; to that end, part of the content of training courses of employees who have contact with young victims will be on the needs of such minors. An “important new aspect” of the draft law is that an individual assessment may be made of a victim’s situation, in order to determine whether they are eligible for special protective measures. (Id.)

The legislation is aimed at the implementation in Dutch law of European Union Directive 2012/29/EU, which lays down minimum standards for the rights, support, and protection of victims of crime. (Id.; Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, and Replacing Council Framework Decision 2001/220/JHA, 2012 O.J. (L 315) 57, EUR-LEX.) The  Ministry of Security and Justice pointed out that although victims already enjoy “a strong legal position in the Netherlands,”  the proposed law means that “t]he rights of victims will apply from the moment of reporting until the case against the suspect has been settled by the court.” (House of Representatives Agrees with Extra Rights for Victims in Criminal Proceedings, supra.)

The House of Representatives’ legislation is now under consideration by the Senate (Eerste Kamer), with the next scheduled meeting on it to take place on May 24. (34.236 Implementatie richtlijn minimumnormen voor de rechten, de ondersteuning en de bescherming van slachtoffers van strafbare feiten [34,236  Implementation Directive on minimum standards on the rights, support and protection of victims of crime], Senate website (last visited Apr. 29, 2016).)

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Germany: Federal Constitutional Court Declares Terrorism Legislation Partially Unconstitutional

(May 3, 2016) On April 20, 2016, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) ruled that the Act on the Federal Criminal Police Office was partially unconstitutional, because various provisions that deal with the investigative powers of the Federal Criminal Police Office for fighting international terrorism were not proportional. The Court criticized the legal requirements for carrying out covert surveillance measures as too broad and unspecific and held that the norms allowing the transfer of data to third-party authorities and to authorities in third countries lacked sufficient legal restrictions.  Two of the eight Justices filed dissenting opinions.  (BVerfG, 1 BvR 966/09, Apr. 20, 2015, BVerfG website (in German); Press Release, No. 19/2016, BVerfG, Constitutional Complaints Against the Investigative Powers of the Federal Criminal Police Office for Fighting International Terrorism Partially Successful (Apr. 20, 2016).)

Background

The constitutional complaint challenged provisions of the Federal Criminal Police Office Act that were inserted into the law in 2009. (Gesetz über das Bundeskriminalamt und die Zusammenarbeit des Bundes und der Länder in kriminalpolizeilichen Angelegenheiten (Artikel 1 des Gesetzes über das Bundeskriminalamt und die Zusammenarbeit des Bundes und der Länder in kriminalpolizeilichen Angelegenheiten (Bundeskriminalamtgesetz – BKAG), July 7, 1997, Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 1650, as amended, GERMAN LAWS ONLINE; 1 BvR 966/09, at 1.) The amendments transferred the competency to fight international terrorism from the individual law enforcement authorities of the German states to the Federal Criminal Police, in order to minimize risks that result from the fragmentation of competencies in cases that require immediate action; they also expanded certain police powers.  (Entwurf eines Gesetzes zur Abwehr von Gefahren des internationalen Terrorismus durch das Bundeskriminalamt [Draft Act to Address Threats Resulting from International Terrorism for the Federal Criminal Police Office], Deutscher Bundestag: Drucksachen und Protokolle [BT-Drs.] 16/9588 at 14.)

Decision

The Court held that, in general, delegating powers to the Federal Criminal Police Office in order to protect the nation and its population against threats stemming from international terrorism is not objectionable. However, the powers have to be balanced against the fundamental right of the individual to privacy.  (1 BvR 966/09, at 99 & 100.) Rights threatened by the expanded investigative powers of the Federal Criminal Police Office were the basic right to informational self-determination (the right of the individual to determine the disclosure and use of his/her personal data), the confidentiality and integrity of information technology systems, and the guarantees contained in article 13 (inviolability of the home) and article 10 (secrecy of telecommunications) of the German Basic Law, the country’s Constitution.  (Basic Law for the Federal Republic of Germany (Basic Law) (May 23, 1949), BGBl. I at 1, as amended, GERMAN LAWS ONLINE (unofficial English translation).)

Investigative Powers of the Federal Criminal Police Office

With regard to the individual provisions of the Federal Criminal Police Office Act, the Court ruled that the provisions that allow the Federal Criminal Police Office to employ special means of surveillance outside of homes, such as observation, audio and visual recording, tracking devices, or the use of police informants, were not sufficiently limited. (BKAG, § 20g, ¶¶ 1-3; 1 BvR 966/09, at 177.) According to the Court, even though it is generally permissible to allow surveillance for the purpose of prevention of crimes, section 20g of the BKAG does not require that the commission of the crime be foreseeable and specific or that there be a reasonable probability that the person under surveillance will commit terrorist offenses in the near future.  The Court criticized the section of the law as disproportionately broad, permitting the monitoring of confidential situations and not requiring a judicial decision at all or only after one month.  (1 BvR 966/09, at 164 – 177.)

The Court further held that section 20h of the Federal Criminal Police Office Act, which deals with video and acoustic surveillance of private homes, was partially unconstitutional. The Court stated that the surveillance was only appropriate if it focused exclusively on the target person and not, at least not directly, on third parties.  Moreover, the Court held, any collected data must first be examined by an independent body before it can be used by the Federal Criminal Police Office in order to ensure that it does not contain highly sensitive private data.  (Id. at 200.)

In addition, the Court declared that the provisions that allow access to computers, mobile phones, and other information technology systems (BKAG, § 20k) did not provide sufficient protection for the “core area” (i.e., most inviolable, innermost sphere) of private life. As with the provision allowing the surveillance of private homes, an independent body is needed to evaluate the compiled data.  (BVerfG, at 223-225.)

The Court further held that the norms providing for surveillance of ongoing telecommunications (BKAG, § 20l) and the collection of telecommunications traffic data (BKAG, § 20m) were too broad and lacked specificity (1 BvR 966/09, at 228, 232, & 247); that there was no adequate protection for persons subject to professional confidentiality; and that there were no specifications for regular mandatory reviews, comprehensive documentation requirements, or reporting duties vis-à-vis the Parliament and the public.  (1 BvR 966/09, at 131-144.)

Lastly, the Court criticized the norm that allowed an exception from the obligation to delete collected data if the data is needed for law enforcement, for the prevention of crimes, or as a precaution for the future prosecution of a criminal offense of considerable significance. (BKAG, § 20v; 1 BvR 966/09, at 274.)

Transfer of Data to Third-Party Authorities and to Authorities in Third Countries

The Court further developed its jurisprudence with regard to the use of data beyond the original investigative purpose, a use it declared to be generally permissible. However, it stated that an exception must be made for the use of data emanating from the surveillance of private homes or from information technology systems, because this data could concern the core area of private life.  Such data may only be used, the Court ruled, if the new purpose also fulfills the strict requirements for a hypothetical original data collection. (1 BvR 966/09, at 276-292.)

The Court held that the provisions permitting the use and transfer of data to other domestic authorities only partially satisfy these requirements, because they allow a transfer for the general prevention of terrorist offenses and are not limited to serious criminal offenses. The provisions do not make exceptions for data stemming from the surveillance of private homes or from information technology systems.  (Id. at 294.)  The same requirements must be observed when data is transferred to authorities in third countries.  Furthermore, the Court stated, the transferring German authority is required to ascertain if the receiving third country offers an appropriate substantive level of data protection; data must not be transferred if there is a possibility that fundamental principles of the rule of law will be violated.  (Id. at 325-329.)

Dissenting Opinions

The two dissenting judges mainly criticized the majority opinion for setting up overly detailed requirements and thereby taking on the role of the legislature. (Id. dissenting opinion Eichberger, at 5; dissenting opinion Schluckebier, at 2.) They stated that the provisions that were found unconstitutional could instead have been interpreted as being in conformity with the German Basic Law.  Furthermore, Justice Schluckebier pointed out in his dissenting opinion that the establishment of an independent body to review collected data before transferring it to the Federal Criminal Police Office affects the effectiveness of the surveillance, because the protection against terrorist threats often requires immediate action.  (Id. dissenting opinion Schluckebier, at 14-16.)

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China: Maternity Leave Further Extended by Provinces

(May 3, 2016) In the past several months, Chinese provinces have been revising their regulations to implement the recently amended Law on Population and Family Planning (Family Planning Law) and at the same time specifying extra parental leave periods applicable in their jurisdictions. Nearly half of the revised regulations have been located; they cover 14 provinces and provincial-level municipalities: Anhui, Beijing, Fujian, Guangdong, Guizhou, Hainan, Hubei, Hunan, Jiangsu, Jiangxi, Jilin, Qinghai, Shandong, and Shanghai. (Anhui Provincial Population and Family Planning Regulations (revised Jan. 15, 2016), Health and Family Planning Commission of Anhui Province website (in Chinese); other regulations available at Westlawchina online subscription database.) The length of parental leave varies from province to province.

In China, women are entitled to 98 days of paid maternity leave, according to a female labor protection regulation promulgated by the State Council in 2012. (Special Provisions on Labor Protection of Female Employees, Central People’s Government of the People’s Republic of China website (May 7, 2012) (in Chinese); Laney Zhang, China: Maternity Leave Extended from 90 Days to 98 Days, GLOBAL LEGAL MONITOR (June 18, 2012).) Maternity leave is being further extended and paternity leave is now becoming a practice in many places, along with the implementation of the “two-child policy” that just became law on January 1, 2016. (Laney Zhang, China: Two Child Policy Becomes Law, GLOBAL LEGAL MONITOR (Jan. 8, 2016).)

When the Family Planning Law was revised to adopt the “two-child policy,” the provision encouraging “late marriage and late childbearing” was removed.  Couples qualifying as “late childbearing” used to be rewarded with extended maternity leave and a paternity leave that was not otherwise available. The new Law instead allows all couples who “bear children in compliance with laws and regulations” to be rewarded with the extra leave. The Law itself does not specify the length of the additional leave, which is to depend on provincial population and family planning regulations. (Id.)

The aforementioned provincial regulations extend the maternity leave made available to couples by 30 or 60 days, for a total of 128 or 158 days. In some cases, the extended period is even longer; Hainan extends the existing 98 days of maternity leave by three months, and Fujian, by 60 to 82 days. Beijing allows an extra one to three months above its 30-day extension, as long as the person’s work unit permits it.  (Id.)

All of the regulations surveyed provide for paternity leave, which is typically 15 days.  However, Shandong gives only 7 days and Shanghai 10 days, while Hunan gives 20 days. Anhui also gives 10 days, but if the husband and wife live in different localities, the permissible paternity leave is 20 days. The new paternity leave appears to be generally for a longer period than what the old regulations had provided as a reward for late childbearing. (Id.)

It should be noted that the extra parental leave is applicable to couples “bearing children in compliance with laws and regulations.” Therefore, couples must be married and bear up to two children, unless they are allowed by law to have more children, to qualify for the extra parental leave. (China: Two Child Policy Becomes Law, supra.)

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Australia/Papua New Guinea: Supreme Court Rules Asylum-Seeker Detention Is Unconstitutional

(May 2, 2016) On April 26, 2016, the Papua New Guinea Supreme Court ruled that the detention of asylum seekers at a facility on Manus Island, Papua New Guinea, which was established under an arrangement with Australia, is a breach of their right to personal liberty under the Papua New Guinea Constitution. (Namah v Pato [2016] PJSC 13 (Apr. 26, 2016), PacLII website; Constitution of the Independent State of Papua New Guinea, s. 42, PacLII website.)

Background

About 850 men from several countries are currently housed at the camp on Manus Island, with about half having recently been assessed as legitimate refugees.  (Erik Tlozek, PNG Government Say Refugee Assessments on Manus Island Have Been Completed, ABC NEWS (Apr. 7, 2016).)  Those assessed to be refugees are able to leave the camp during the day, but those who have had their claims denied are not able to exit.  (Ben Doherty et al., Papua New Guinea Court Rules Detention of Asylum Seekers on Manus Island Illegal, GUARDIAN (Apr. 26, 2016).)  Some men have refused to submit applications to the Papua New Guinea government on the grounds that they had been taken to the country against their will.  (Ben Doherty & Helen Davidson, Manus Detainees Told They Will Be Separated, Then Resettled or Repatriated, GUARDIAN (Mar. 29, 2016).)

The men had all sought to enter Australia by boat and were transported to Manus Island under Australia’s offshore processing policy aimed at deterring asylum seekers from using people smugglers to make the dangerous trip to Australia.  Under this policy, those who are assessed to be refugees are not  able to be resettled in Australia but are instead given the option of resettling in Papua New Guinea.  Thus far about 542 people have been offered resettlement in the country, including 74 who have now moved to a transit center.  Only eight people who were previously held at the detention facility are living in the Papua New Guinea community, including three who reportedly returned to Manus Island and tried to re-enter the transit center.  (Nicole Hasham & Michael Gordon, Papua New Guinea Court Finds Australia’s Detention of Asylum Seekers on Manus Island Is Illegal, SYDNEY MORNING HERALD (Apr. 26, 2016).)

The Manus Island Centre

The Manus Island Regional Processing Centre was first opened in 2001 under an agreement between the Australian and Papua New Guinean governments.  It closed in 2008 but was later reopened in 2012.  (Elibritt Karlsen, Australia’s Offshore Processing of Asylum Seekers in Nauru and PNG: A Quick Guide to the Statistics, Australian Parliamentary Library website (Oct. 12, 2015).)  In 2013, the two countries signed a new agreement related to the processing and resettlement of asylum seekers.  (Regional Resettlement Arrangement Between Australia and Papua New Guinea (July 19, 2013); Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, Relating to the Transfer to, and Assessment and Settlement in, Papua New Guinea of Certain Persons, and Related Issues (Aug. 6, 2013), both from the Australian Department of Foreign Affairs and Trade website.)

Supreme Court Ruling

The Papua New Guinea Supreme Court found that

The power to detain and therefore deprive a person’s liberty pursuant to s. 42(1)(g) legally and constitutionally is only in accordance with that provision and the relevant provisions of the Migration Act. That is available only against persons who have entered and or remain in the country without a valid entry permit or an exemption. Any deprivation of a person’s liberty outside what is provided for will undoubtedly be unconstitutional and illegal.

In the present case, the undisputed facts clearly reveal that the asylum seekers had no intention of entering and remaining in PNG. Their destination was and continues to be Australia. They did not enter PNG and do not remain in PNG on their own accord. This is confirmed by the very fact of their forceful transfer and continued detention on MIPC by the PNG and Australian governments. It was the joint efforts of the Australian and PNG governments that has seen the asylum seekers brought into PNG and kept at the MIPC against their will. This [sic] arrangements were outside the Constitutional and legal framework in PNG. (Namah v Pato, paras 38-39.)

The Court also held that a 2014 amendment to the Constitution, which purported to allow the detention of foreign nationals pursuant to an agreement with another country, was unconstitutional and illegal.  It ordered that the Australian and Papua New Guinean governments take steps to end the continued detention of asylum seekers.  (Id. ¶ 74.)

Government Responses to the Decision

On the same day that the Court’s decision was released, Australia’s immigration minister, Peter Dutton, reiterated that “[n]o one who attempts to travel to Australia illegally by boat will settle in Australia” and that “[t]hose in the Manus Island Regional Processing Centre found to be refugees are able to resettle in Papua New Guinea. Those found not to be refugees should return to their country of origin.” (Press Release, Peter Dutton MP, PNG Supreme Court Judgement (Apr. 26, 2016).)  He further stated, “[t]he court decision is binding on the PNG government, but not on the Australian government, so we will work with the PNG government to look at the situation, to provide what assistance we can, but we are not going to allow people smugglers to get back into business.”  (Helen Davidson & Ben Doherty, Manus Island Detention Centre to Close, Papua New Guinea Prime Minister Says, GUARDIAN (Apr. 27, 2016).)

A few hours later, the Prime Minister of Papua New Guinea, Peter O’Neill, said that the facility on Manus Island will be closed and that “Papua New Guinea will immediately ask the Australian government to make alternative arrangements for the asylum seekers” currently held there.  (Id.)  In response, Dutton said that Australia would continue discussions with Papua New Guinea to resolve the issues, again stating that the detainees would not be resettled in Australia.  (Id.; Nicole Hasham, Manus Island Detention Centre to Close, PNG Prime Minister Says Following Court Bombshell, SYDNEY MORNING HERALD (Apr. 28, 2016).)

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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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